The Nigerian Bar Association and the Protection of Rule of Law in Nigeria By R. A. Lawal-Rabana 1

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1 The Nigerian Bar Association and the Protection of Rule of Law in Nigeria By R. A. Lawal-Rabana 1 Introduction: In the 46 years of Nigerian existence as an independent Nation, Nigeria has had more than three decades of military dictatorship. These military regimes were characterized by suspension of the fundamental rights chapter of the Constitution and brazen disregard for rule of law and due process. This culture of impunity which was the mainstay of military regimes has badly damaged the psyche of the nation and affected our political culture. In 1999, Nigeria returned to a Democratic Government but this return was not matched with a concomitant democratic culture. The military mentality still pervaded our political psyche. The process of imbibing and respecting the dictates of democracy and the principle of Rule of Law became a collective challenge for all democracy enthusiasts, a task force with which the Nigerian Bar Association identified with. This paper will identify the challenges which the Bar face in protecting the rule of law, the accomplishment thus far and the way forward for the nation. The Nigerian Political Environment: The reoccurring decimal since our return to democracy in Nigeria is the problem of the tendency of Government agencies to disobey Court Orders. This attitude accounts for their selective tendency as regards which court judgement to obey and the ones not to. It also accounts for the disregard for due process in certain activities of the government. However one major area of concern for the NBA has been the disregard of court judgements by Government agencies. This trend threatens the integrity of the judiciary and the protection of individual rights in the country. The executive controls the police and it is the police that enforce court judgement in Nigeria. The dependence of the 1 Rabana is the General Secretary of the Nigerian Bar Association and a member of the Body of Benchers. 1

2 judiciary on the executive for the enforcement of judgement allows the executive a leeway to flout court rulings. The public and interest groups do not have a powerful and coordinated voice that can compel adherence to court rulings by the executive. Sadly, these gaps in the political system have been exploited by government in the last 7 years of our democracy. Requirements of due process are not adhered to and the courts are not in a position to enforce its judgement assuming such a case comes before the court. The complexities of Nigerian political environment have made it difficult to ensure the protection of rule of law. Instances of Disobedience of Court Judgements by the Executive Arm of Government: In the last seven years we have recorded a number of instances where the executive have disregarded court orders. From the local government to the Federal Government and its Agencies, the story has always been the same. The Schedule attached to this Presentation states the examples of some of the instances of such disobedience by the executive. The unconstitutional removal of the governor of Oyo State in Nigeria in January 2006 in spite of the various court orders was the height of the disobedience to Court Orders. The NBA felt that this sort of constitutional aberration strikes at the root of our democracy and threatens the fundamental structure of our nation especially taken together with the lawlessness that is exhibited by the Nigerian Police and other security operatives. The respect for due process was visibly lacking in the dealings of security operatives. Individuals are detained without due process and procedural guarantees laid out in the constitution are not observed. It was against this background that the NBA embarked on the court boycott to protect the rule of law and awaken the conscience of the nation. (See Schedule attached) The NBA Court Boycott of March 2006: In his press release on Thursday, the 9 th of March 2006, the then President of the NBA Lanke Odogiyon stated that the Court Boycott was intended to draw attention to the 2

3 important role the court plays in keeping society together. It was a protest against the contempt and ridicule of the rule of law by politicians, persistent disobedience of court orders and the violation of fundamental rights of citizens. The Judiciary he stated may appear to be the weakest arm of the government, but it is the most important. The boycott was to give Nigerians the feel of what it is to live without a court of justice and subsequently underline the importance of the judiciary and the need to respect court decisions in order to sustain our democracy. Lawyers in Nigeria went on a court boycott for two days beginning from Monday the 13 th to Tuesday the 14 th of March 2006 which made it possible for all Courts in Nigeria to sit. The boycott was a huge success in that it awakened the slumbering populace and effectively embarrassed the government. The impact was instantaneous. The government through the Attorney General of the Federation made a commitment to the Nigerian Bar that they will henceforth ensure compliance with court judgement and also promised to take action with respect to old judgements to which the state has not complied and requested the NBA to forward such Judgments. The Attorney General has kept faith with this and made several Federal Government Agencies to comply with some Judgments that were brought to his attention and the evidence of compliance forwarded to the NBA. Present Challenges: The greatest challenge to the rule of law and democracy in Nigeria has been the violation and/or total disregard for constitutional provisions in the removal of State Governors by the House of Assembly in some States of Nigerian. Section 188 of the 1999 constitution of the Federal Republic of Nigerian prescribed for the procedure for the removal of State Governors. In Oyo State of Nigeria where the first impeachment was recorded in this dispensation, the House of Assembly broke into factions of political differences and a faction without 3

4 the Speaker, the Deputy Speaker and the Clerk of the House purportedly sat in a hotel and raised Impeachment Notice against the Governor of the State. While this faction did not have the 2/3 majority of the House of Assembly as required by the Constitution, proceeded to request the Chief Judge of the State to raise a panel to investigate the misconduct against the Governor. There were series of suits filed by various parties to stop the impeachment process, but all the suits were ignored by the Acting Chief Judge of the State and the faction of the State House that was bent on impeaching the Governor. The panel which had three (3) months to conclude their Assignment and submit their report to the House of Assembly as prescribed by the Constitution, did the assignment within 72 hours i.e. (three days) and without affording the Governor the opportunity of Defence, found the Governor guilty of gross misconduct and the Governor was impeachment by this faction. The NBA condemned this unconstitutional removal of the Governor and the NBA s position was vindicated by the Supreme Court of Nigeria when the impeachment was declared null and void and the Governor reinstated. The second impeachment involved the Governor of Ekiti State of Nigeria. While the House of Assembly in this case was properly constituted and had the required constitutional majority of 2/3 members, they proceeded in an unconstitutional manner by purportedly removing the Chief Judge of the State who had set-up a panel to investigate the Governor and had found him not guilty of gross misconduct. The House proceeded to appoint its own acting Chief Judge contrary to the provisions of the Constitution who set up a new panel and from the Governor guilty and was subsequently impeached. The NBA also took a bold decision against this process and pronounced the impeachment unconstitutional. Due to time constraints I won t be able to discuss the other two impeachments but it s important to emphasis that they were also declared null and void by the Superior Courts and also vindicated the stand of the NBA against the impeachments. 4

5 The 1999 Constitution of the Federal Republic of Nigeria has never been put to test as it did in recent times and the NBA has been resolute in the supremacy of the Constitution and the defence of the Rule of Law. The Role of the NBA in the 2007 Electoral Process: The electoral process has also thrown up more challenges. The NBA in its bid to be part of the process of evolving credible, transparent, free and fair elections participated in the Voters Registration Exercise, observing the Conduct of Party Primaries, Nomination of Candidates, Monitoring Election, Post Electoral Justice, etc; The NBA established an Electoral Monitoring Group and recruited the services of 20,000 lawyers as Volunteers to act as Election Monitors nationwide at the just concluded 2007 elections in Nigeria; and The NBA also conducted training for Election Monitors and is currently training 100 lawyers across the Country as Election Petition Tribunal Monitors to ensure speedy dispensation of all election petitions. Future Plans: Call for the reform of the justice sector: Part of the content of our justice sector reform initiatives is to empower the courts to enforce its judgement using court marshals, train security operatives to respect human rights and due process and sensitize government to properly fund the sector to enhance the quality of justice delivery thereby ensuring respect of the courts; Advocacy for the respect of the rule of law: This has become the motto of the Nigerian Bar. The Bar has been in the lead in condemning unconstitutional removal of Judges and Governors. Even at a risk to their lives, the leadership of the Bar went around the hot spots in the country (States where Governors were removed unconstitutionally) to condemn the unconstitutional actions and show commitment to constitutional democracy; 5

6 Condemnation of any form of electoral malpractice and abuse of power by electoral managers; There is constant sensitization of the membership of the bar to ensure that they act as watchdog on the excesses of the government; and Constant dialogue with government to encourage adherence to the rule of law. Conclusion: These approaches are paying off because when the Bar talks, the nation listens. Thank you. 6

7 SCHEDULE S/NO. SUIT NO. TYPE OF ORDER / JUDGMENT 1 FCT/ABJ/CV/719/05: An Interlocutory Order of ALHAJI AHMED TIJANI Injunction restraining the IBRAHIM & ANOR Minister of F.C.T. from demolishing shop Nos. 144, and 82 at Area 11 THE MINISTER OF Neighbourhood centre, FEDERAL CAPITAL Abuja. TERRITORY ABUJA & ANOR 2 FHC/ABJ/C5/2005: MRS. ELIZABETH ALFRED & 3 ORS. THE MINISTER OF FEDERAL CAPITAL TERRITORY ABUJA & 3ORS 3 FHC/CS/FOLOWOSHELE FOLUSO FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ANOR 4 FCT/HC/M/2352/05 OKEKE RC ECONOMIC FINANCIAL COMMISSION 5 FHC/ABJ/CS/20/2002 AND CRIMES EQUINOX ASSES MANAGEMENT LTD THE HON. SPEAKER OF HOUSE OF REPRESENTATIVES & 2 ORS An Interim Order of Injunction restraining the Minister of F.C.T. from demolishing shop Nos. 8A, 59, 57, 21C at Maitama Corner Shop (Uruguay Street) Maitama District, Abuja. An Interim Order of Injunction restraining the Minister of F.C.T. and Federal Capital Development Authority from demolishing the shops in Zone 5 Wuse, Abuja Corner Shop. An Order of Court compelling the EFCC to release the Applicant in the Suit unconditionally and without delay. AN ORDER OF COURT DIRECTING THE HONOURABLE SPEAKER HOUSE OF REPRESENTATIVES TO PAY A JUDGMENT SUM OF 40, (FORTY THOUSAND POUND STERLING) PLUS DATE GIVEN 18 th October, th June, 2005 September, th November, TH MARCH,

8 6 FCT/HC/M/2881/05 MR. ONYILOKWU JUDE ABOJE THE COMMISSIONER OF POLICE OF FEDERAL CAPITAL TERRITORY ABUJA. 7 FHC/ABJ/CS/344/2002 SSAUSCGOC NICON INSURANCE PLC ATTORNEY GENERAL OF THE FEDERATION & 4 ORS 8 CA/E/23/2003 CHIEF BEN OBI SIR I. G. ABANA INTEREST TO THE PLAINTIFF. AN ORDER OF COURT RESTRAINING THE COMMISSIONER OF POLICE FOR F.C.T. ABUJA FROM FURTHER ARRESTING OR DETAINING THE APPLICANT. AN ORDER OF INJUNCTION RESTRAINING THE SPECIAL ADVISER ON ECONOMIC MATTERS TO THE PRESIDENT FROM TAKEN OVER NICON INSURANCE PLC OFFICE BY FORCE. AN ORDER OF COURT DIRECTING INEC TO ISSUE A CERTIFICATE OF RETURN TO THE PETITIONER. 28 TH NOVEMBER, TH OCTOBER, TH NOVEMBER 8