DEMOCRACY, LAW AND CHANGE: IMPERATIVES FOR NIGERIA

I first met Justice James Adesiyun by reputation. My father the late Justice E.T. Ndoma-Egba had appeared before the Honourable Justice Adesiyun as counsel when in the then Benue Plateau State soon after the civil war. On his return home he never stopped regaling us with stories about that appearance. What I took away from the stories was that His Lordship was knowledgeable, fair and firm and that he did not suffer fools gladly. I eventually met the great man in person.

In 1974 I found my brother, Christopher Adebayo Ojo, now famously known as Chief Bayo Ojo CON, SAN now ex this, ex that and everything else, as a new student in the Faculty of Law at the University of Lagos. A friendship was immediately struck before we realized that we were indeed brothers from different parts of the country. This is a story for another day but the long and short of it is that one Folashade Adesiyun now Justice Sade Ojo captured his heart after a cupid’s arrow and from that moment I was also enrolled in the Adesiyun household. I remember the quiet, soft spoken gentleman and it took me a while reconciling this genteel gentleman with the no nonsense Judge he was reputed to be in court.
I thank his family and the Ilorin Branch of the NBA for immortalizing this great man through the biennial lecture series in his honour and memory.

The organizers of this lecture gave me the latitude to choose my topic which I have done freely and to the best of my judgment taking into account my profession as a lawyer, my vocation as a professional in politics and my dream to see a truly developed Nigeria, the only country we have. If I make a success of the topic, be kind enough to give me the credit. Should I however fail hold the organizers responsible for their misjudgment in giving me too much latitude and freedom.

DEFINITIONS
I am going to attempt a definition of key terms in the title of this lecture not in didactic or dialectical context but more in practical terms so as to situate them in the context of this lecture.

DEMOCRACY
Abraham Lincoln (1809-1865) defined democracy as “government of the people, by the people, for the people”. This definition has become accepted as easily the most classic definition of democracy which term derives from two Greek words, demos, meaning people, and kratia, meaning power, in other words people’s power.
The so called democracies in classical antiquity (Athens and Rome) represent precursors of modern democracies. Like modern democracies they were a reaction to a concentrating and abuse of power by absolute rulers.

The theory of modern democracy was formulated in the 17th and 18th centuries, an age known as the ‘Age of Enlightenment’ when philosophers defined the essential elements of democracy as separation of powers, basic civil and human rights, religious freedom and the separation of church and state, the right to vote, good governance, equality etc. I do not intend to dwell on the definition of democracy as we all recognize democracy when we see it save to add that it is a system of government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically free and fair elections. According to political scientist, Larry Diamond, democracy has four key elements.

a. A political system for choosing and replacing the government through free and fair elections
b. The active participation of the people, as citizens, in politics and civic life
c. Protection of the human rights of all citizens and
d. Rule of law, in which which laws apply equally to all citizens (Lecture at Hilla University for Humanistic Studies in January 21, 2004,”What is Democracy”)

Democracy, it is trite, is not just a system of government, it has become a tool of modernization and development.”The democratic skills of compromise, bargaining, superior arguments, give and take, consensus building ,lobbying, bridge building and pragmatic resolutions have become yardsticks of enlightenment, human civilization and rapid transmission of societies”( Ajayi T, Twelve Years of Democracy in Nigeria).

It is generally agreed that there are five progressive stages of democracy. These have been identified as
a) Nominal democracy; is democracy in its infancy and is essentially the transfer of power from one hegemonic block to another.
b) Ritualized Voters democracy; when voters go through the obligatory ritual of registration, campaigns and swearing in of elected officials.
c) Transformative economic democracy; the period of public concern for economic growth and social transformation, what we glibly refer to as dividends of democracy. It is said that democracy is the investment of the people while economic growth and social transformation are returns on the investment.

d) Constitutional democracy; the phase in which the limits and elasticity of the democratic provisions as enshrined in the constitution and supporting legislations are tested. In this stage the general level of awareness is high enough for both institutions and individuals to pursue collective and individual rights and liberty. Scholars refer to this stage as ‘the trial of the judiciary in democracy, and the gains won are considered the contributions of jurisprudence to democratic growth”. This phase entails the use of legal frameworks to determine rights, obligations and justiceable provisions of the constitution. States may sue States while local government councils may pursue cases in the courts against the central authority and its agencies” (Ajayi T, supra).

e) Liberal democracy; considered the highest phase or stage of democracy characterized by high empowerment of civil society and high visibility of non governmental organizations and the presence of pressure groups and lobbyists. Observance of human rights is real and not cosmetic and citizenship rights protected beyond national boundaries.

Democracy is not an event, it is an endless journey as there is no milestone to sign post perfection. Democracy keeps refining, redefining and reinventing itself to meet changing social dynamics. There are no set timelines for nations migrating from one phase or stage to the next. It took the United States sixty years to move from nominal democracy to liberal democracy; Britain about sixty five years for the same journey. It has taken India sixty seven years (from 1949 till date to migrate from nominal democracy to constitutional democracy. The lesson therefore is that democracy is inherently a slow, tedious threadmill process that requires certain ethic especially patience and a democratic mindset.”A functioning, robust democracy requires a healthy, educated participatory followership, and an educated, morally grounded leadership” (Chinua Achebe).Therefore those who believe that democracy is a silver bullet that quick fixes social and economic problems hold an untenable position given the lessons of history. Deliberation and debate stir the soul of democracy while compromise and the rule of law spice it. Democracy, without the rule of law is an incomplete sentence. Democracy and the rule of law are in theory and practice interwoven as without the rule of law arbitrariness, impunity and the rule of man will rule and these are inconsistent with democracy.

LAW
It is said that it is difficult to define what law is but what it does can be described and what rules apply can be established. Some legal theorists have however attempted some definitions. The legal positivist John Austin defines law as ” a rule laid down for the guidance of an intelligent being by an intelligent being having power over him” and ” a body of rules fixed and enforced by a sovereign political authority” Naturalists like Plato and St Thomas Aquinas believe law is an embodiment of reason whether in the individual or community” an ordinance of reason for the common good, made by him who has the care of the community, and promulgated”-Aquinas. Realist Oliver Wendell Homes believes law is “the prophecies of what the courts will do” while Professor Hart defines law as a system of rules, a union of primary rules. Thomas Hobbes on the other hand believes that “law is the formal glue that holds fundamentally disorganized societies together” Like democracy we recognize law when we are confronted by or with it.

DEVELOPMENT
In this paper change is used in the context of development.
The dictionary meaning of development is the process in which someone or something grows or changes and becomes more advanced. (See Cambridge Dictionary).This applies to societies, countries etc.

Social development theory attempts to explain qualitative changes in the structure and framework of society to help society realize her aims and objectives. Development can thus be defined in a manner applicable to all societies’ at all historical periods as “an upward ascending movement featuring greater levels of energy, efficiency, quality, productivity, complexity, comprehension, creativity, master, enjoyment and accomplishment.”{See Wikipedia). Development is thus a process of social change, not merely a set of policies and programmes instituted for some specific results.

The basic mechanism for driving social change is increasing social awareness which in turn should lead to better social organization. When society senses new and better opportunities for progress it develops new forms of organization to exploit these new opportunities to its best advantage. Development is governed by many factors that influence the results of developmental efforts. There must be a motive that drives the social change and essential preconditions for that change to occur. The motive must be powerful enough to overcome impediments to the change. In other words, in a social setting, there must be the political will to effect and to drive the change.

Development is the result of society’s capacity to organize resources to meet challenges and opportunities. Every society passes through well defined stages in its developmental journey .These stages are
*The nomadic, hunting and gathering,
*The rural agrarian
* The commercial industrial and
*The post industrial stages.

Pioneers introduce new ideas, practices and habits which are usually resisted but later accepted, imitated, organized and adopted by the society with organizational improvements to support the innovations. These improvements can take place simultaneously at the physical, social, mental and psychological levels.

DEVELOPMENT AND THE NIGERIAN CONSTITUTION
The Constitution of The Federal Republic of Nigeria (As amended) espouses the vision of development in Chapter 11; Fundamental Objectives and Directive Principles of State Policy. Section 16(1) of the constitution provides that
“The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution-

(a) harness the resources of the nation and promote national prosperity and an efficient, dynamic and self reliant economy

(b) control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice, equality of status and opportunity;

(c) without prejudice to its right to operate or participate in areas of the economy, other than major sectors of the economy, manage and operate the major sectors of the economy

(d) without prejudice to the right of any person to participate in areas of the economy within the major sectors of the economy, protect the right of every citizen to engage in any economic activities outside the major sectors of the economy.

2) The State shall direct its policy towards ensuring
(a) the promotion of a planned and balanced economic development;

(b) that the material resources of the Nation are harnessed and distributed as best as possible to serve the common good;

(c) that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of a few individuals or of a group; and

(d) that suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare for the disabled are provided for all citizens”

Fundamental objectives are the directive principles laid down by policies which are expected to be pursued in the efforts of the nation to realize the national ideals. The rationale for the provisions is that governments in developing countries have tended to be preoccupied with power and its material perquisite with scant regard for political ideals as to how society can be organized and ruled to the best advantage of all. The rationale is of special significance and relevance to Nigeria whose cardinal features are heterogeneity of the society, the increasing gap between the rich and the poor, the growing cleavage between the social groupings all of which combine to confuse the nation and bedevil the concerted march to progress.

Fundamental objectives prescribe the fundamental obligations of the state to its citizens and the duties of the citizen to the state. They are moral obligations of all citizens to help promote patriotism in the citizens and uphold the unity of the country. The directive principles of state policy, on the other hand, are guidelines for the framing of laws by government. They are guidelines or directions given to the State for the establishment of an economic and social democracy. Though not enforceable by the courts, welcome as they are, they remain the principles on which governance is based .Directive Principles may be classified as

(a) ideals that the State ought to strive towards achieving
(b) directions for the exercise of legislative and executive power and
(c) the rights of the citizens which the State must aim at securing.
Despite being non justiceable Directive Principles act as check on the State, in theory at least, to measure government’s performance.

The economic objectives or developmental vision of the nation are thus embedded in The Fundamental Objectives and Directive Principles of State Policy.

LAW AND CHANGE, LAW AND DEVELOPMENT
In the context of this paper change and development are used interchangeably to connote my aforementioned definition, or better still, description.

There is no technical consensus on how to bring about development or change .Ideas about development which fuel interest in the law encourage the hope that the law could simplify development policy making. In the case of Nigeria this is codified in Chapter 11 of the 1999 Constitution of the Federal Republic of Nigeria (As amended). The Fundamental Objectives have benchmarked the aspirations and through the Directive Principles given the strategy for the realization of these aspirations. Political and economic choices have to be made within the context and framework of these objectives and directives.

IMPERATIVES FOR NIGERIA

WHERE ARE WE COMING FROM?

As at 1st. October 1960 when Nigeria got her independence from Britain her economy was at par with the economies of India, Brazil, Indonesia, Malaysia and Singapore. Nigeria had three Regions, the Eastern, Western and Northern Regions. In 1963 the Mid West Region was created out of the Western Region.

Infrastructure was basic but functional. Schools and hospitals were good. The Regions contributed to the Federal purse. The Regions were substantially autonomous and had their constitutions and had representative offices abroad. The Federal government was given exclusive powers over defence, foreign relations and commercial and fiscal policy. The equivalent of local government councils today which were County Councils and Native Authorities built schools, roads and hospitals.

Native Authorities in the Northern Region ran their own police. The economy of Nigeria was among the fastest growing in the world. Indeed economic historians postulate that by 1965 the economy of the then Eastern Region was the fastest growing in the world. The mainstay of the economy was agriculture, and mining. The Northern Region was world famous for its groundnut pyramids, hydes and skin, the Western Region for its Cocoa and rubber, and the Eastern Region for oil palm, rubber and cocoa. In 1965, as a primary school student my school St. Martins Primary School Ikom in today’s Cross River State received two prominent visitors; the first Roman Catholic priest from the then Ogoja Dioesce , Rev Father Joseph Edra Ukpo who retired as the Metropolitan Arch Bishop of Calabar, and some Malaysians whom we were told had come to collect oil palm seeds.

On 15 January 1966, a group of young military officers mainly of Ibo extraction led by Major Chukwuma Nzeogwu overthrew the government and assassinated the Prime Minister, Abubakar Tafawa Balewa, the Premier of the North, the legendary Sir Ahmadu Bello, the Premier of the Western Region, Chief S.L, Akintola and many others including senior military officers of mainly Northern extraction and the flamboyant Minister of Finance, Chief Festus Okotie-Eboh. After some manouvres which some historians refer to as another coup, Major General Johnson Thompson Aguiyi Ironsi, the first indigenous head of the Nigerian Army, became military Head of State.

General Ironsi was unable to quieten the ethnic tensions that arose from the Nzeogu led coup and also failed to produce a constitution acceptable to all sections of the country .Most fateful for General Ironsi however was the promulgation of Decree No.34 which sought to abrogate the Regions and the federal structure and create a unitary State. This led to another coup by largely northern officers in July 1966 which established the leadership of the then Lt.Col Yakubu Gowon.
On May 30, 1967 Lt, Col. Chukwuemeka Odumegeu Ojukwu, then Military Governor of the then Eastern Region announced the secession of the Eastern Region from Nigeria and declared the Republic of Biafra. To pre-empt him General Yakubu Gowon (as he now was) had on 27 May 1967 announced the dissolution of the four Regions and the creation of twelve new States.

Generals Murtala Mohammed and Olusegun Obasanjo who succeededed General Gowon created nine additional States, General Ibrahim Babangida created eleven States while General Sani Abacha created six bringing the total number of States to the thirty six that we have today. All States were thus created by Military regimes apart from the defunct Mid West Region that so far remains the only component to have been created in a democracy. In summary between 1960 to 1963 we had three Regions, by 1963,four Regions, twelve States by 1967,1976 to 1987,19 States,1987 t0 1991,21 States, 1991 to 1996, thirty States and the Federal Capital Territory and from 1996,thirty six States. In thirty six years therefore we moved from three federating units to thirty six, an average of one per year, easily the most prolific bifurcation of federating units in history.

WHERE ARE WE?
Can we say we are still at par with the referenced countries? A simple look at some features will give us an answer;
INDIA
Population; 1.276 billion
Land mass; 3,287,260 km2 or 1,269,220 sq.mi
GDP (PPP) USD 8.07 trillion; nominal USD 2,182 trillion
per capita; USD 1,688
Number of States; 29

BRAZIL
Population; 205m
Land mass; 8,515,767 km2 or 3,287,597 sq. mi
GDP (ppp) USD 3.208 trillion, nominal USD 1.534
Per capita USD 8,802
Number of States; 26

INDONESIA
Population; 255m
Land mass 3,287,260 km2 or 1,269,220 sq. mi
GDP (ppp) USD 2.840 trillion (nominal) USD 895 billion
Per capita USD 3,511
Number of provinces; 34
MALAYSIA
Population; 31 m
Land mass; 330,803 km2 or 127,720 sq. mi
GDP (PPP) USD 800, 16 nominal USD 375.633
Per capita USD 12,127
Number of States; 13
SINGAPORE
Population; 5.5m
Land mass; 719.1 km2 or 278 sq . mi
GDP (PPP); USD 452.686 billion (nominal) USD 308.051 billion
Per capita; USD 56,319
Number of states, nil; city state

NIGERIA
Population; 182m (estimated)
Land mass; 923,768 km2 or 356,667 sq.mi
GDP (PPP); USD 1.667 trillion, nominal USD 605.275 billion
Per capita; USD 2,640

Gross Domestic Product (GDP) is the monetary value of all the finished goods and services produced within a country’s borders within a specific time, usually an annual basis. By GDP India and Brazil are among the top ten countries of the world, India at number 7and Brazil at number 9.Indonesia is number 16,Nigeria 23 and Malaysia 33,.However all other economic indices like inflation rate, unemployment rate, budget deficit and change in real GDP put the referenced countries ahead of Nigeria. So do social indicators.

WHAT DID WE SHARE?
Brazil and Indonesia share the commonality of our experience of military rule. In spite of the disruptions of military rule they have made substantial economic progress nevertheless. Theirs, therefore, are examples that inspite of the disruptiveness of military rule development is possible. Indeed the military regime of Getuilo Dornelles Vargas of Brazil is credited with the transformation of Brazil and the introduction of Estado Novo, ” the new state” though it was characterized by the over centralization of power at the expense of the provinces. Nigeria has had a feast of military regimes, Ironsi, Gowon, Murtala Mohammed, Obasanjo, Buhari, Babangida, Sani Abacha and Abdulsalam Abubakar, cumulatively spanning almost thirty years of our post colonial period, but in my view, hardly transformative ,indeed disruptive totally distorting our federalism especially by over centralizing power and resources and effectively creating a unitary State.

WHAT DID WE DO THAT THEY DID NOT DO?
Relative to their land mass and populations they have fewer and therefore larger federating units, whether as States or Provinces. Their federating units have been largely numerically stable and where there has been bifurcation, division or creation, it has not been as dramatic, prolific and as rampant as it has been in the case of Nigeria. In a sense there is the economics of scale in federating units.

I had earlier said that between 1960 to 1996, a period of thirty six years, we moved from three Regions to thirty six States, that is, on the average a new State per year of that period. This rate of proliferation has had systemic and structural implications and complications.

IMPLICATIONS AND COMPLICATIONS
As earlier mentioned as at 1965 Nigeria’s economy was among the fastest growing in the world and that of the defunct Eastern Region reputed to be the fastest growing in the world. My deduction is that structurally we were at optimal point of structural efficiency that guaranteed economic development, and this was empirical, it showed in our economic growth rate.

We need to do comparative analyses of the national budgets and other economic indicators to find the breaking point, that is the point where through states creation we became structurally inefficient, to be factual and authoritative. I however have some informed suspicions.

Up to and including when we had twelve States, the Federal and the States’ governments delivered massively on infrastructure. The then Head of State, General Yakubu Gowon was famously quoted to have said that ‘money was not the problem but how to spend it’.

By the time we got to nineteen states payment of salaries to workers in the states’ public services had become an issue. Delays in workers salaries were common and retrenchment of workers was a familiar feature. Delivery on infrastructural projects slowed considerably.

With subsequent states’ creation exercises payment of workers salaries became celebrated as major achievements by states’ administrations. Infrastructure became mere promises and inane achievements were by propaganda elevated the sublime. Let us compare Sir Ahmadu Bello, Michael Okpara, Obafemi Awolowo and Dennis Osadebe of the four Regions; the Northern, Eastern, Western and Mid-Western or Samuel Ogbemudia, (Mid-West)Alfred Diete Spiff ( Rivers), Audu Bako ( Kano), U.J.Esuene (South Eastern State), Mobolaji Johnson (Lagos), David Bamigboye(Kwara), Usman Farouk (North Western)Ukpabi Asika (East Central) and Adeyinka Adebayo and Oluwole Rotimi (Western )States of the twelve States structure with later day Governors, whether military or civilian. One conclusion is inevitable; the progressive depreciation of governance with each States creation exercise, and indeed, each subsequent dispensation. Why?

BLOATED BUREAUCRACIES
Each newly created state required a bureaucracy and there are as many bureaucracies as there are states. With each state creation people were promoted into positions for which they were not ready. I know of a State where school teachers, without any prior experience, were appointed directors-general; as permanent secretaries were then known. Infact a disc jokey whose only experience in government was having been a councillor in a Local Government was also appointed a director general in that dispensation. Inefficiency and incompetence were thus promoted in the system. Inefficiency and incompetence breed corruption. Corruption is the taking of advantage inefficiency or weaknesses in the system for private advantage or gain. The same inefficiency and incompetence were fed to the federal system.

The higher the number of States the higher the theatres of corruption and the bigger the infrastructure for corruption.
FEDERATING UNITS AND THE NATIONAL, AND STATES,BUDGETS; A comparative study and analyses of the federal and Regional/ States budgets from 1960 till date will need to be done for my postulation to be factual, scientific or objective. However, I strongly believe that there is a direct correlation between the number of Regions or States and the ratio between the capital and recurrent budgets and the extent of budget implementation.

States, in Nigeria, were never created on economic considerations or as economic units; rather they were created whimsically on political and personal considerations. Economic viability of States was not a criterion in the creation of States. The States were therefore conceived as consumption and not production centres. Up to and including the twelve States structure States were able to massively deliver on infrastructure because in my yet to be verified view the various budgets, federal and States, the capital/recurrent ratio weighted substantially in favour of capital. As more states were created the ratio progressively reversed to a point where the capital components of both the federal and states budgets was barely twenty percent.

It is the capital component of the budget that delivers development and poverty reduction through the implementation of capital projects. It is the aspect of the overall national budget that determines the allocation of funds to finance capital projects and critical infrastructure such as the construction of roads ,bridges, hospitals, schools, railways ,irrigation systems, prisons, electricity, water , purchase of machinery and equipment etc. The capital budget is used to finance or fund durable assets. The recurrent component is the ‘ consumption’ component more or less; providing for emoluments and overheads essentially. Our current structural configuration has therefore become a drag, indeed, a burden.

CORRUPTION
There are several factors that breed corruption, inefficient and incompetent bureaucracies as a result of intemperate States creation which has resulted in the institutionalization of essentially a unitary system of government and a nominal federalism is one of them. Corruption is very costly. PriceWaterhouseCoopers believes that if the level of corruption in Nigeria were at the level of Ghana’s, Malaysia’s and Colombia’s Nigeria’s economy worth USD 513 billion in 2014 would have been twenty two percent bigger. By 2030, PwC predicts that Nigeria’s economy should triple and that if Nigeria manages to reduce corruption to Malaysia’s level the economy could be bigger by 37 per cent. The additional gain would be worth USD 534 billion after adjusting for inflation; about the current worth of the economy. Clearly, the price we are paying for corruption is needless.

THE WAY FORWARD
The way forward, to put it simply, is to dismantle the infrastructure for corruption, the inefficiency and incompetence promoted by a debilitating and suffocating federal structure. We must agree that the structure that we have now is not working. The States are bankrupt. Most of them cannot pay salaries and or clear refuse. Poverty and unemployment are biting. The way out is restructuring the federation in a way that the federating units are economic units and therefore economically viable .We must be bold to face our current reality and have the courage and the will to do the needful.

CONCLUSION
Our current structure cannot deliver development. We should not continue in self deceit or in self denial. Every society must adapt to changing realities otherwise it dies. Nigeria has great realizable potentials .Nigeria is a potentially great nation. Making her great is a choice Nigerians only can make. That choice we must make. And now.

Being a paper delivered by the former Senate leader , Senator Victor Ndoma-Egba as Guest Speaker at the 9th Honourable Justice, J.M Adesiyun Biennial Memorial Public Lecture organized by the Nigerian Bar Association (NBA), Ilorin branch in collaboration with the Adesiyun family.