“TRANSITION TO DEMOCRACY AND HUMAN RIGHTS”
– By Justice M.L. Uwais, GCON (B.964)
Annual Lecture of BOBA,
June 6, 2006
It is for me a singular honour for the National Executive Committee of the old boys of my alma mater the Barewa College, Zaria to request me to deliver this lecture on the eve of my retirement from the Nigerian Judiciary.
It is further gratifying that the lecture is intended to be a tribute to my illustrious former colleague and Chief Justice of Nigeria, the late Hon. Justice Mohammed Bello, GCON, who was also the immediate past President of the Barewa Old Boys Association. He had a very distinguished public service to Nigeria. He was a man whose entire life was devoted to the service of his country and whose record of public service was clean and unimpeachable. He was a man who was forthright in expressing his views on all matters, however controversial they might be. It was never his habit to shrink from boldly stating his considered views on troublesome and awkward topics nor did he believe in brushing them under the carpet.
It was the late legal luminary Chief Rotimi Williams. CFR, SAN who said of late Hon. Justice Mohammed Bello thus “There will not be enough time to examine as fully as desirable, the qualities and performances of our Chief Justice as a judicial officer. Before his appointment to the Supreme Court Bench in October, 1975, Mr. Justice Bello had made his mark: as a very learned, erudite and scholarly Judge in the High Court of the Northern States from the early sixties. Whether he was sitting in Supreme Court as one of three (as he did early years in the Supreme Court) or as one office (as he did his later years) or a member of the full Bench of that Court, Justice Bello easily emerges as a Judge
who strikes the practitioner as someone whose views you simply have to reckon with. He is always quick to get to the heart of the matter and often he has the gift of restating the question which the court has to decide in a way which shortens otherwise lengthy arguments. I cannot end this short excursion into the performance of Mr. Justice Bello as a Judge without reference to one outstanding feature, to wit, his style of writing judgments. He always manages to express his profound knowledge of legal principles with impressive clarity using the fewest words possible. He avoids unnecessary verbosity and takes the most scrupulous care to confine himself solely to the questions which really arise for decision. The result of all this is that his judgments arc usually easy to comprehend and whether he is agreeing with his brethren or dissenting from them, he does not as a rule, resort to the habit of making pronouncement which lawyers describe as “obiter dicta” i.e. pronouncement on legal principles which are not really necessary for the decision of the particular case before the court.”
May his gentle soul rest in perfect peace and may Allah (SWT) grant him paradise (A1jannah).Amen.
Now to the task of the day , which is the lecture on the topic “Transition to Democracy and Human Rights.” I propose to tackle the topic by talking generally about democracy and human rights first and then consider that in the context of Nigeria.
Democracy has been defined by Abraham Lincoln as government of the people, by the people and for the people. It is the form of government in which the people choose their leaders in regular, free, fair and competitive election. It has emerged as the regime of nations around the world. As people are given opportunity to participate in elections they prefer to have a say in how they are governed. They want to hold those who hold political office accountable. They want laws based on persuasion rather than through violence and they want government to protect individual freedom and secure equality before the law.
ORIGIN OF DEMOCRACY
Democracy comes from two Greek words “demos” which means the people, and ‘’kratein’’, which means to rule. In the Greek world, democracy was understood in contrast to monarchy, in which one person rules, and oligarchy, in which a few persons rule. The first great flowerings of democracy took place in the ancient Greek city of Athens. Democracy lasted there from 508 to 267 BC and remains for now the longest living democracy in world history. This record will last until 20 17 when United States democracy will equally be 241 years old.
In Athens, the people or rather the eligible population i.e. male citizens of 18 years of age and older, ruled directly in the assembly and discussed politics openly in the market place called “Agora”. The Athenian democracy had been praised for its superiority to all alternative forms of government. Its superiority was said to have stemmed from the liberty and equality enjoyed by its citizens. It was such liberty that did not generate into anarchy and an equality not in all things but before the law. In Athens, individuals were rewarded for their merit, both private life and public good were respected, culture thrived, debate flourished, innovation was encouraged, and outsiders were welcome.
The ideals rooted in the democratic principle, gave life to the peoples’
hopes and guided their aspirations. However, the Athenian democracy did not lack critics. Both Plato (427 347 BC) and Aristotle (384 322 BC) agreed that democracy was far from the basic regime. It was defective, they contended, because it is more of human rights than of natural rights. But the doctrine of human rights (which under girds, the United Nations Charter on Human Rights of 1948 and informs international law while deriving support from a variety of traditions, has its immediate intellectual origins in liberalism’s natural right traditions. The liberal principle modifies the democratic principle in at least two ways. First, it proclaims that, from the point of view of moral and political life, our common humanity is more fundamental than difference of class, sex, race or even religious belief. And second, by defining freedom and equality in terms of rights that pre-exist government, the liberal principle asserts that there are some actions government may not take against individuals, regardless of how large and how passionate the majority are in favour of them. When most people today ‘use the term “democracy”, what they really or actually mean is liberal democracy.
All modem liberal democracies are also representative democracies.
Instead of gathering to vote directly on the laws to be passed, as in Athens, . citizens today vote for law makers who draft the passed laws and vote also, for executives who are responsible for putting the laws into effect, in other words, by executing the laws. The indirect role of the people through their representative involves a further modification of democracy’s original meaning. In the 15th Century, when the United States and France were bringing modem liberal democracy into being, the objection had to be overcome that, because the people must role directly, democracy was only applicable to small, tight-knit populations, living closely together in a single, compact, well defined geographic area. James Madison of the United States rose to the challenge in “Federalist 10” which was one of the series of newspaper articles which he wrote along with Alexander Hamilton (1755-I804) and John Jay(1745-I829) to pursuade fellow citizens to support ratification of the United States Constitution. Representation, he argued, allowed self government to be extended to a complex commercial republic composed of a large population stretching across a vast and varied land. At the same time it served as a check or corrective to the tendency of democracy to give expression to the momentary’ whims of the people. Instead of voting on each and every law, the people vote for office holders who, by virtue of their knowledge of politics and their standing in the community can be counted on to deliberate patiently and fashion laws that will serve the public good. And if the people conclude that their representatives have performed their jobs poorly and betrayed the 1rustplaced on them, the people can vote them out of office.
a representative democracy, the people are sovereign and government is based on their consent. But what the people consent to is the entire scheme of government institutions and the settled procedures for making laws and adjudicating disputes. In this way the people consent to
honour the laws produced by their representatives, even those laws with which they disagree, provided that the laws are enacted through the agreed upon institutions and procedures, are consistent with the rights guaranteed by the Constitution or the supreme law of the land, and do not infringe on the most fundamental natural or human rights. It is significant to point out here, that the very democratic institutions and procedures that facilitate or permit the making of bad laws also afford citizens the opportunity to persuade a majority to elect officials who will pass better laws.
LIBERAL TRADITION TODAY: FOUNDATIONS AND
Different democracies may choose individual or different institutional
arrangements for securing individual rights and maintaining equality before the law. For example, most modern democracies have chosen a parliamentary system of government, in which the leader of the executive branch of government (i.e. Prime Minister) is chosen by and dependent upon the legislative branch. The United States and Nigeria are in the minority, having adopted a presidential system, in which the chief executive is chosen by the people and is largely separate and independent of the legislative branch. Both the parliamentary and presidential system rely on an independent judiciary to impartially adjudicate the disputes that inevitably arise under the law.
Despite the differences in the form of democratic governments, historical experience has shown that modem democracy has certain indispensable foundations. Several of these foundations involve limitations on government action. For example the freedom of speech, which includes the liberty of thought and discussion, prohibits government from making laws prescribing to people what they should think or say. It is essential because all other freedoms derive from the citizen’s ability to think his or her own thoughts and devise independent plan. Freedom of assembly helps ensure that citizens can discuss their thoughts with others openly and in public if desired, or discreetly and in private if preferred. Freedom of worship affirms that government may not dictate to individuals how to worship and the content of religious faith, or whether to worship at all. Protection for those accused of crimes keeps government from using its enormous weight to unfair advantage in arresting, detaining and trying those believed to have committed crimes.
An independent judiciary provides a source above party politics for referring disputes concerning what the law commands forbids or permits. A free economy enable individuals, to enjoy the fruits of their labour and to co-operate and compete with each other in a way that increases the prosperity of the society as a whole. A free press furnishes the citizens with multiple sources of news and competing opinions and thereby enable them to make up their minds in an informed manner. In any particular case, democracies are bound to differ over just where to strike the balance between individual rights and supreme law of the land, and do not infringe on the most fundamental natural or human rights. It is significant to point out here, that the very democratic institutions and procedures that facilitate or permit the making of bad laws also afford citizens the opportunity to persuade a majority to elect officials who will, pass better laws.
THE NIGERIAN EXPERIENCE
It is a common knowledge that any discussion meant 10 enlighten must of necessity start from the known to the unknown. If permitted, therefore, I would like to follow this paradigm in respect of the second part of this lecture.
A transition has three assumptions, the first is that one is at a particular stage, state or place from which he or she is moving or intends to move 10 another stage, state or place. The second assumption is that he or she has a process, methodology or even some form of vehicle to move from that stage, state or place to an intended destination. The destination may be certain or inchoate.
The third assumption, which logically flows from the first two, is that there is a predetermined destination or stage or place towards which the second assumption is expected to take one to government power. Moreover
reasonable persons can disagree about the optional structure of the judiciary, the proper degree of state regulation of the economy, and the outermost boundary of press freedom. Thus it is in the interest of democracies to look to the practices of fellow democracies for perspective and for new ideas on how best to realize their shared goal of liberty and equality under law. Taking Nigeria as my example, for obvious reasons, these three assumptions would be applied not necessarily in the order in which they have been discussed. As seen, the establishment of democracy is not an invention of Nigeria, but that it is part of a world order emanating from political liberalization and economic globalization. I will allude briefly to examples from Russia, Eastern Europe, the Caucasus, Uganda South Africa, Eritrea, Ethiopia and Ghana. In varying degrees of emphasis, all these countries fall under the three transition assumptions stated above. Transition to democracy in Nigeria may be divided into three broad periods, namely;
1. The Pre Independence Era
2. The Military Era. And
3. The Post Military Era
The present state of Nigeria, in the pre-colonial period, consisted of a vast area of states, empires, kingdoms and fiefdoms. During the period of struggle for partition of Africa that culminated in the Berlin Conference of 1884-5, the parameters for carving up the African continent failed to take into cognizance:
a. The common interest of the communities in the areas to be affected.
b. The traditional association of the people affected, and
c. Administrative conveniences of societies meant to be brought together in the new colonies.
The result was that at that very point and with the process of colonization, democratic structures were either destroyed or suppressed and in their place mounted an authoritarian rule with its centre in metropolitan Europe. Laws and rules for governing the colonized peoples were
enacted in Europe for the local people, whose interests were not sometimes protected, and who were meant to obey and operate those laws, sometimes against their wish. “
Therefore, the era of decolonization meant a transition from colonialism to independence and perhaps democracy. With specific reference to Nigeria, one or two words need be said of the process of this type of transition. This is because one particular point here would resonate throughout this short discussion. In the run up preparations to Nigeria’s independence, constitutional conferences were held in London to fashion out an independent constitution for the country.
The first conference was held in 1953 and its outcome influenced the Lyttleton Constitution of 1954. The next was held in 1957 and the last was in 1958. In essence, the transition from colonial rule to independence consisted of conferences that led to the drafting of new constitution with provisions that entrenched the protection of human rights. At independence therefore, minority groups and majority tribes felt fairly satisfied that their rights were protected or would be protected within a democratic Nigeria. However it is significant to point out that the first effort to document human rights was made by the United Nations Organization. In 1948 the General Assembly of the Organization adopted the Universal Declaration of Human Rights. The assembly proclaimed as follows; “The Universal Declaration of Human Rights as a common standard of achievement for all people and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and educating to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance both, amongst the peoples of Member States and among the peoples of territories under their jurisdiction.”
The 1960 Constitution contained in Sections 17/27 of its Chapter III, provisions of fundamental rights which variously applied to deprivation of life, in human treatment, slavery and forced labour, deprivation of personal liberty, private and family life, freedom of conscience, freedom of expression, peaceful assembly and association, freedom of movement and freedom from discrimination. Similarly, the 1979 and 1999 Constitution contain those provisions. It is also pertinent to mention that Nigeria as a Member of the Organization for African Unity (OAU) ratified and adopted in 1983 as part of its municipal laws, the African Charter on Peoples and Human Rights, which also contains wider provisions on human and other rights. The Charter constitutes an Act, in chapter 10 of the Laws of the Federation of Nigeria, 1990.
THE MILITARY ERA
Six years after independence Nigeria experienced its first military coup. The crisis that followed the military coup of 15th I January 1966 led to a civil war which lasted from 1967 1970 after the civil war. Since 1960, the military ruled Nigeria from 1966 1979 and 1984 -1999 various attempts were made to transit and return to democratic rule. It was stated that the failure of the regime of General Yakubu Gowon to keep to its promise of return to civil rule was one of the causes that led to another military coup in 1976. The new regime began another transition to democracy which ended with the return to democratic rule and constitutional order on 1st October, 1979. Just four years into this, another military coup which toppled the democratic government of Alhaji Shehu Shagari, in December 1983 culminated into an endless transition by the military with shifting of dates until 1993. The year 1993 is significant as it is the year within which Nigeria had three heads of government General Ibrahim Babangida relinquished power on August 27, 1993 and Chief Ernest Shonekan
(a civilian) took over as Head of State. Eighty two days later, Chief Shonekan purportedly voluntarily resigned from office and Sani Abacha took over the post of Head of State. He began a transition that had no definite terminal date.
However, he died in June 1998. Thus the true transition that led to the
restoration of present democratic structures began with General Abdulsalami Abubakar who succeeded General Abacha. It has been seven years now since the present constitutional government came into being in a democratic setting. Let me state that modern liberal democracy is anchored on the principles of separation of powers between three arms of government, that is, the executive, the legislature and the judiciary. In the era of military rule in Nigeria, there were only two arms of government; the military, which combined both the executive and legislative powers of the state and the judiciary. The legislative powers under the military were exercised through the promulgation of decrees at the Federal level, and edicts at state level. Essentially, the military relied on the judiciary to interpret its decrees as the laws of the land. Military rule is an arbitrary rule. It is the antithesis of democracy with the principles of the rule of
law under constant threat and sometimes outright violation.
Nigeria again returned to democratic and Constitutional order on May 29, 1999, with the election of Chief Olusegun Obasanjo as President. He was Nigeria’s Military, Head of State from 1976-1979. The transition period that led to his election was less than a year (June 1998 to May 1999).
POST MILITARY ERA
Perhaps the testiest aspect of transition in Nigeria is the transition from one civilian government to another. This appears to have been jinxed until 2003.
Thus, the acrimony that followed the 1983 general elections is believed to have partly been the excuse for the December 1983 military coup that terminated Nigeria’s second republic and paved way for an absolute military rule that lasted up to 1999. It is pleasing to note that Nigeria transited successfully from civilian to civilian rule in May 2003. This transition was not without its controversies, some of which have been settled by the courts while some are still pending or looking for a solution. But the joy of the process is that democracy is the order of the day in Nigeria today with minimal hiccups which are akin to a robust political a1mosphere. The second part of this lecture dwells on the question of human rights during all the three transition periods which I have identified earlier. Human rights and democracy are mutually complimentary and self reinforcing. Democracy is a great social value and infinitely better than any form of dictatorship. Human rights are invariably tied to
Democracy is a fundamental value in our constitutional law and political culture. Democracy is not simply concerned with the process of government. On the contrary, it is fundamentally connected to substantive goals, most importantly, the promotion of the welfare of citizens and guarantee of human rights. Democracy accommodates cultural and group identities. Put in another way, sovereign people exercise their right to self-government through the democratic process. It is important to point out that the very foundation upon which democracy is built is the rule of law. It is therefore, the lifeblood of democracy. It follows that a government which believes in constitutionalism and democracy cannot but be engaged in good governance. This requires that the government must adhere strictly to the rule of law as provided by the constitution and the relevant statutes in the tradition of the common law. Democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the sovereign will of a nation is to be ascertained and implemented.
To be accorded legitimacy, democratic institutions must rest ultimately, on a legal foundation. That is, they must allow participation by the people, and be accountable to the people, through public institutions created under the Constitution. The Nigerian transition to democracy has, imbedded in it, certain basic human right tenets, without which the transition would have been a farce. Political contest is usually through the instrumentality of political parties. Unlike Uganda where transition was through “Zero party system”, Nigeria’s has always been through a multi-party system. This is a clear example of the exercise of freedom of association, and to a large extent, that of the right to peaceful assembly. The publication of manifestoes and party programmes, including the holding of political campaigns, is grounded on the right to freedom of expression. The aforesaid rights cannot be enjoyed unless the right to personal liberty and privacy is allowed to prevail. The right to the dignity of the human person is ensured so that while each person or group may canvass its political programmes and aspiration, those who differ must be respected and allowed to the same. All these must be done without discrimination on the basis of ethnicity, sex, station in life, political affiliation, religion or physical ability. In between these rights are others that reinforce and enhance the process of democratization and the reign of the rule of law. It has been noted earlier that military decrees prevented the courts, through certain provisions, from intervening in allegations of violation of human rights that were brought before them. However, it is the military also that promulgated the decrees to enhance transitions. Five registered political parties contested the general elections in 1979. The 1993 general elections were contested by two government imposed political parties. Three registered political parties contested the 1999 elections. Thirty political parties contested the last elections in 2003. General elections were held in April 2003. This saw the re- election of Chief Olusegun Obasanjo for a second term as president. The
elections included those to the two Houses of the National Assembly and those for Governors of States and members of the state Houses of Assembly. Human rights thrive in a democratic dispensation. Democracy or any form democracy for that matter, which does not guarantee fundamental rights and freedoms is to say the least a dictatorship. The Constitution of the Federal Republic of Nigeria 1999 guarantees human rights and freedoms. The Constitution also guarantees the independence of the judiciary. As already seen, these are basic necessities in a democratic society. This brings me to the end of the discussion on the Nigerian experience.
Today a majority of states in the world are democratic and their numbers continue to grow. The movement towards democracy since the end of World War II and in particular over the last 30 years or so has indeed been nothing short of astonishing. In 1950 there were approximately 20 democracies out of the world’s 80 sovereign states. In 1974, about 40 of the world’s 150 countries could be called democratic. Since then, thanks in no small measure to the collapse of the Berlin Wall, the non-violent dissolution of the Soviet Union, and the ending of the stand off between the East and West through America’s victory in the Cold War, democracy has spread through Eastern Europe, Asia, South America and indeed Africa. So much so, that today there are about 120 democracies or two thirds of the world’s 193 sovereign states.
One region where a more serious or sustained movement in the direction of democratic change has not yet been evidenced is the Middle East. However, 2005 had witnessed a cluster of favorable developments. National elections and Constitutional Convention as well as the recent formation of government have taken place in Iraq. The Syrian forces were expelled from Lebanon and the people of Lebanon demanded self government. The decision by Egyptian President Hosni Mubarak, to hold multi- party elections, which indeed took place this year, and the recent passage of a law by the Kuwaiti National Assembly granting women the right to vote suggest that the people of the Middle East are becoming open to and are increasingly acquiring the taste for democracy.
The spreading of democracy around the globe makes the understanding of its presuppositions, its principles and its prospects, all the more necessary. Those who have never lived under any other form of government can easily come to take democracy for granted. And those whom democracy is a relatively new experience or those for whom it represents an intimidating or menacing foreign intrusion, might understand fully what democracy requires of, and what it has offered citizens.
Both democracy and human rights exist in Nigeria. There is however the need to improve on their observance in the governance of the country. Greed, corruption and excessive use of power work against democracy and human rights. No government can achieve great success without the cooperation and assistance of the governed. Therefore, the people of Nigeria have a duty to ensure that democracy and human rights have come to stay in our beloved country. This they can do by being vigilant and willing to challenge in court the violation or attempted infringement of their rights.
Justice Mohammed Bello:
His College Days And The Barewa 1945 Class
On February, 17, 1945, fifty boys from every part of Northern Nigeria
arrived, mostly by train, at the Kaduna Junction Railway Station. The
train from Lagos brought the boys from the Provinces of Ilorin, Kabba and Niger Provinces. Those from Adamawa, Bauchi, Borno and Plateau Provinces had gathered together in Jos from where they joined the Limited to Kaduna on its way to Lagos. Boys from Benue Province joined the Port
Harcourt to Lagos train and were deposited at Kaduna. Those from Kano,
Katsina and Zaria Provinces joined the train either in Kano or Zaria. This was the way most traveling was done in all parts of the country. The roads were few and far between and very unreliable during the rainy season. The Railway was an easy and efficient way of traveling. All the trains from the four parts of Nigeria were timed to arrive at the Kaduna Junction Railway station at about the same time. Kaduna Junction was the hub of the transportation system of Nigeria. It was here that passengers for Kaduna disembarked; those in transit changed trains for their various destination.
The Kaduna Junction railway Station was, perhaps the busiest spot in the whole country at the time. It was also the brightest spot for the whole station was awash with bright lights. It was a meeting point and it was a place for socializing. Boys from Kaduna College of those days enjoyed sneaking to the Railway Station to mingle with the crowds, although this was strictly prohibited by the College rules. It was from this station that we disembarked and carried our few belongings on our heads and walked to the College some three miles away. It may have been at this station some of us, perhaps including Mohammed Bello met. But on February 18th, twenty five of us found ourselves in the same class, Class IIIA. There were no introductions, but we soon got to become life long friends. Mohammed Bello was one of the most quiet of our class, which by any form of assessment was one of the most high spirited the college has ever had. Many of our teachers openly testified to this.
We may have been somewhat naughty, but certainly not ruffians un-amendable to the rules of the college who enjoyed defying authority. We got on well with one another and, perhaps towards the end of our college days had become responsible young men ready to go out to the open world for which we had been prepared for four years under the watchful eyes of the most dedicated teachers. Mohammed Bello, had come from Katsina together with Amadi Rimi, Hassan Gafai and Abdu Kaita. Amadi Rimi, in spite of what he became later in life, was the quietest and the most affable. Hassan Gafai, was a true dramatist and was the most amusing not only in our class but in the whole school. Unfortunately, he died very early in life. Abdu Kaita, was a very pleasant rascal. We enjoyed being together and he had easy cunning which very often got us out of very tight spots. Bello, seemed to be the quiet gentleman amongst all of us. This is not to say he was an isolated character who did not participate in school boys pranks. He played his full part and he could not be ignored. Mohammed enjoyed participating in all manner of discussion and in passionately arguing his points. Although, he frequently won in debates, he was ever the gallant loser. He hardly ever lost his cool.