As one of the oldest democracies in a region that has long been plagued by autocratic and extraconstitutional regimes, democracy itself has now become part of our national exceptionalism. Our gallant armed forces are totally subordinated to civilian command authority and are fully committed to defending our constitutional order against internal and external threats. We have a relatively strong civil society that continues to push for greater accountability and the deepening of democratic practices.
In keeping with our foreign policy tradition, ours has been a clear and strident voice for the promotion of democracy on the continent and have been resolute in condemning extraconstitutional seizures of power.
Historically, we have worked to restore and preserve democracy in places such as Liberia, Sierra Leone and The Gambia. At the same time, the events now happening beyond our borders impose a burden on us to exemplify the highest manifestation of democracy at home so that we can more credibly promote it abroad.
In 2015, we made history when an opposition party defeated the ruling party in a national election and a peaceful transition of power followed. In so doing, we vaulted over a hurdle that we have fallen at in previous attempts at democratic governance. Since then, we have seen more and more elections at the subnational level feature transitions between parties. Certainly, we have witnessed electoral contests in which mere membership of the ruling party is not a guarantee of victory. These are signs of our growth as a democracy. There remains, of course, much room for improvement.
But the overarching or foundational issue is democracy. The notion of the government of the people by the people for the people, and its critical implications. Law and the electoral process must work for the achievement of the most democratic outcomes. Legal or electoral processes must enhance not defeat democracy.
Central to democracy is the will of the electorate demonstrated by voting for candidates of their choice. That right is so central to democracy that it must be protected by electoral laws and judicial interpretation in electoral cases. This means that electoral justice must not be for the candidates alone. Indeed, the principal players, the electorate, must be front and centre of judicial reflection on how to determine electoral cases, the judiciary must be wary of substituting their will for the will of the electorate, they must seek every interpretation that leaves the people with the choice of who they prefer.
The decision of the Supreme Court in the case of APC v. Marafa (SC.377/2019), where the Supreme Court nullified the elections of all candidates of the party, who were resoundingly elected by the electorates in Zamfara State in the 2019 elections on the grounds that the APC’s primaries which produced the candidates that were voted for were invalid.
And, without recourse to the electorates, who had, in the polls rejected all the other candidates of the other political parties, the Supreme Court declared candidates of parties other than the APC as winners of the various offices that were contested for in the February 23 and March 16 general elections.
The court held that the APC votes, cast by the Zamfara State electorates to select their preferred candidates as Governor, Senators, members of the House of Representatives, members of State House of Assembly were all “wasted votes.” Why? Because, according to the court, APC did not conduct any valid primary election and as such had no candidates for any of the elections in the State.
So, here was a situation where the party that lost every seat from governorship down to House of Assembly was given all those seats by judicial pronouncement. For the voter, this decision must have been at best puzzling.
First, they had no idea that the candidates were disqualified before voting. Indeed, at least one court had declared the primaries valid and it was on that basis that INEC gave the go-ahead to the candidates to contest.
Second, rather than giving seats to those that the electorate had rejected, ordering a rerun would probably have been more acceptable and fairer to the voters. I agree with my brother A.B. Mahmood, SAN, that there is a real issue of whether the courts have not assumed a larger duty in election cases than was constitutionally intended. I am certain that these issues will benefit from the views of our colleagues in the course of this conference.
Nevertheless, I think it is a testament to our commitment to improving our electoral process that we have an Electoral Bill that is presently in the process of being passed. The Bill itself has been the subject of robust engagement between the government and civil society. And while some have expressed reservations about the time it is taking to enact the new law, we should remember that a truly inclusive democratic deliberative process often takes time. I am confident that the legislation that emerges will be one that reflects a broad consensus between all the stakeholders.
While INEC continues to improve its capacity to conduct credible elections particularly through the deployment of technology, we recognize that democracy is about much more than voting. It is also about constitutionalism, rule of law and respect for civil liberties. We must diligently work to uphold these principles.
Permit me to refer to Section 14 of our Constitution which proclaims, “The Federal Republic of Nigeria shall be a state based on democracy and social justice.” Democracy and social justice are inextricably linked. The insistence that our society must be governed by the rule of law and not the whim of man is the cornerstone of democracy. As law teachers and legal practitioners, we are custodians of this truth. However, democracy cannot endure without social justice.
The pursuit of justice lies at the heart of the quest for the good of society. This makes the legal profession one of the cardinal vocations upon which civilization rests. Indeed, law is an instrument of pacific social engineering, the end of which is justice. When it is rooted in this postulate, it follows that the law and therefore democracy, are meant to serve beneficial social ends.
More broadly, our idea of social justice also refers to the social and economic rights of the people. These include the right to food, shelter, employment, education and a reasonable national minimum living wage, care for the elderly, pensions, unemployment benefits and welfare for the physically challenged. These bequests are in the 2nd Chapter of the Constitution as part of the Fundamental Objectives and Directive Principles of State Policy.
Without social justice, legal justice is ultimately unattainable. The degree to which citizens are in possession of their social and economic rights has a direct impact on the degree of their access to legal services and thence to justice. Our concern as teachers and practitioners of the law therefore must extend beyond the courtroom, beyond the precincts of our legal institutions to the social reality in which these structures exist.
The law is a social construct and makes sense only within a social context. To treat the law as something apart from society, or as a body of technical abstractions is to strip it of meaning. This also fosters alienation between the legal profession and the very people it is meant to serve. Approaching the law simply as an instrument for achieving legalistic justice is grossly inadequate in our circumstances.
We are in an age in which our society must grapple with issues of structural poverty, entrenched inequality, disparities in access to social and economic opportunities, fractured access to justice, and the occasionally abusive conduct of law enforcement institutions – all of which are creating profound radical discontent with the social order.
Notions such as the rule of law are meaningful only in a context in which the law is considered relatable by the public and is deemed consistent with universal aspirations towards an end state of social justice. A society in which an increasing number of people consider themselves alienated from legal institutions or perceive these legal institutions to be incapable of delivering justice for all cannot be stable and prosperous.
Section 17 of our Constitution asserts that “the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.” It is significant that the framers of our Constitution enshrined access to justice along with social and economic rights in the Directive Principles and Objectives of State Policy. It indicates that they saw access to justice, the integrity of our justice system and socioeconomic rights as related imperatives.
There is a school of thought that holds that one of the unfinished tasks of our democratization project is to actualize the rights and imperatives enshrined in the Second Chapter of our Constitution. There are also those that promote a rigid distinction between fundamental human rights enshrined in Chapter 4 of our Constitution and the Social and Economic Rights in Chapter 2. In my view, there is truly no irreconcilable dichotomy between political and civil rights, & social and economic rights.
In terms of governance and public policy, the right to the dignity of the human person in Chapter 4 of our Constitution means that citizens are to be fed and sheltered, that they are listened to when they speak and are guaranteed liberty as long as they do not break the law and are entitled to fair trial when they do. The right to human dignity is the wellspring of efforts to guarantee freedom of speech and the right to vote, welfare programmes that ensure that everyone has food and shelter, and judicial reforms that enable even the most disadvantaged citizens to enjoy equality before the law.
Consequently, the principle of the dignity of the human person implies that governments must be considerate, egalitarian and universal in the sense that they must serve everyone. This understanding has driven interventions such as the Social Investment Programmes which is the most ambitious welfare programme on the continent and our efforts to expand universal health insurance all aimed at ensuring that our most vulnerable citizens are not abandoned to the vicissitudes of fate.
I would say that the postulation of a rigid dichotomy between fundamental human rights and social and economic rights is a retrogressive perception of rights. The progressive vision to which I subscribe holds that poverty and underdevelopment pose a serious obstacle to the full realization of human rights. Indeed, the progressive vision holds that human rights in their fullest sense encompass both civil and political rights as well as economic, social and cultural rights.
Our progress as a democracy must therefore also be prosecuted in terms of the struggle to reduce the basic problems of ill-health, malnutrition, illiteracy, and famine which daily afflict our people. Where social and economic rights are unsecured, people are unable to fully maximize their civil and political rights. For instance, access to qualitative education enhances and enriches the freedoms of expression, thought and conscience. Conversely, pervasive illiteracy can nullify the freedom of the press. In the progressive vision, political rights and socio-economic rights are mutually reinforcing.
Why do these issues matter? Simple, the value proposition of democratic governance is that it delivers the fulfilment of the social contract between the state and citizens. Elections are a means to this end.
In practical terms, therefore, democracy means more than the right and opportunity to freely choose one’s leaders; it means accessible qualitative education to the unlettered, affordable healthcare to the sick, inclusion for the alienated, social mobility for the poor, justice for the wronged and security for the vulnerable. How effectively we deliver on these propositions will determine the growth and endurance of our democracy.
To paraphrase Martin Luther King Jr. we must bend the arc of our democracy towards social justice.
As teachers and practitioners of the legal craft, we should not be afraid of tackling the big conceptual and philosophical questions around the meaning of democracy, but take the lead in shaping the conversations that drive policy and legislation around these issues and in so doing, preserve public confidence in our vocation and in our capacity as a people to self-correct and self-govern.
On this note, let me once more thank my colleagues for extending their kind invitation to me. It is now my singular privilege and pleasure to declare this conference open and I wish you a fruitful deliberation.
Thank you for listening.