Legal Nigeria

On The Rule of Law

Tatalo Alamu
(Why Gani Fawehinmi still matters)
Suddenly and just exactly as it happened during retired General Buhari’s first sojourn, fierce arguments about the rule of law have returned to the front burner. The urgent and passionate tone of the debate, its relentlessly agonistic contention, suggests a society that has succumbed to intellectual trauma in addition to political and economic trauma.
Despite the philosophy of Heraclitus and its notion of permanent flux, Nigeria appears mired in the same eddy pool just as it was over thirty years ago. But this may well be an optical illusion. The ground might have shifted under us while the nation has stalled, stuck with the same ruling class miscreants. What has happened this time around is that the Nigerian masses have also joined the debate. This is when the ruling class “game” is fatally threatened, and the entire chess board is in danger.
Like its other accessories such as equality before the law and the right to vote and be voted for, the rule of law is one of the pious myths of modern liberal democracy. But these are factual myths, or truthful falsehoods if you like, that must be sustained at all costs if the ascendant classes must survive. All sustainable and self-sustaining ruling classes must be seen to pay not just lip service but actual service to the rule of law.
There should be no equivocation about this. There is as yet no human society where there is complete equality before the law or the rule of law for that matter. In leading western societies, the quality of lawyers you are able to hire and their sheer gravitas often determine the process and outcome of the matter at hand. The evidence of legal weight trumps the weight of factual evidence.

But since everybody has been programmed by institutional memory to buy into this, it is where the matter ends. Being a very costly matter to both sides revolutions are hardly ignited by isolated cases of injustice but by mass repression that has become intolerable.
In every society, then, the ruling law is the law of the ruling classes. In other words, the rule of law is the law or the grundnorm on which the rule of the ascendant classes is anchored. But as history has taught us, this arrangement is neither eternal nor immutable. It cannot be equated with the wholesale brutalization of the people and the vandalization of the sacred ethos of the state through egregious greed and ruling class gluttony such as we have witnessed in Nigeria.
When this happens, the veil of the illusion of equality before the law and the rule of law itself is torn off the visage of the howling masses and the braying mob. In such circumstances, and if it is to sustain its hegemonic grip over society, the ruling group must be prepared to pay maximum penalty. This is when harsh reality collides with optical illusion.
The irony of it all is that in such circumstances, the ruling class can only survive if it pays maximum and rigorous adherence to the principle of equality of all before law, if it upholds the rule of law in such a way that it is not seen or perceived to give preferential treatment to perceived crooks and criminals simply because they are privileged members of the ruling clan.
It is when the rule of law ossifies into the ruse of law that a strong signal is sent to the people to take the law into their own hands. Anarchy, we need to remind ourselves, is not the collapse of law and order but the collapse of lawlessness and disorder. In the current Nigerian circumstances, the strident advocacy for the rule of law where privileged law breakers may be concerned is a sign of paradoxical complicity with lawlessness and disorder.
The modern world did not get to this point by sheer accident of history or through the graciousness and rational conduct of rulers and their accessories. It has taken momentous and bloody exertions. The human toll has been prohibitive. Much blood has been shed before it can be burnt into the consciousness of kings that there is nothing like divinely ordained rule and that the delusion of ascribing earthly authority to some celestial behemoth is sheer nonsensical bunkum.
The French king who famously declared that he was the state might have said that in royal emphasis. But if only the deluded Louis X1Vcould see his luckless and hapless descendant who took very much the same route!  He was summarily decapitated along with his wife and the throne was abolished forever to the bargain.
In England much earlier, Oliver Cromwell disbanded the House of Commons after putting the King to sword. For over three centuries, the Yoruba of Nigeria have been periodically chopping off the heads of their kings in a battle of will and wits that has shaped and defined the identity and libertarian politics of the people till date and their abhorrence for autocratic rule of any hue.
Many of these bloody upheavals are determined by the trajectory of a people’s history and the nature of the nation itself. It has been said of Stalin that he drove barbarity out of Russia by sheer barbarity. The whimsical cruelty and sadistic pleasure in human suffering are regrettable but there can be no doubt that the Bolshevik Revolution propelled Russia from a backward feudal society mired in superstitious idiocies to a modern industrial nation in one single generation.
You cannot have omelette without breaking eggs. As Nigeria confronts the demon of industrial corruption and official malfeasance which has hobbled the country and stalled its march to authentic nationhood, there are important lessons to take away from other societies that have managed the traumatic transition to modernity without much bloodshed and appalling suffering of the populace.
We must thank God for small mercies. Just as the inchoate and incoherent nature of the Nigerian nation prevents elite cohesion and the complete homogenization of the Nigerian ruling class, the chaotic ethnic tapestry of the nation has also made it impossible for the Nigerian under-classes to act in pan-Nigerian concert when and where it matters most.
But opportunities also abound in national contradictions. To the best of our knowledge, President Mohammadu Buhari is not a flaming revolutionary or a radical Leninist insurgent bent on completely smashing the old order. He is at best a Fulani aristocrat and conservative reformer genuinely appalled and rightly so by the appalling and degrading state of his country.  Rather than undermining him, it is tactically better for members of Nigeria’s fractious political elite to endure the bitter pills rammed down their throat by a sympathetic undertaker  than wait for the real thing in a situation of anomie and disorder.
This is why it is regrettable that certain scions of the northern feudal oligarchy, unlike Buhari, cannot grasp the historical connection between the current thieving disorder, their princely complicity in the rot and the appalling corruption and collapse of order in the old Hausa empire which prompted their heroic forbears to rise in revolt in a bid to cleanse the entire system.
This failure of moral imagination and the collapse of historical memory prompt one to recall Ganiyu Oyesola Fawehinmi, the late legal avatar and moral lodestar for his generation. How would Gani have conducted himself in the current ethical quagmire? In retrospect, it is now clear that Gani was clearly ahead of his time and his profession. In a gesture of defiance and contempt, Gani ignored the call of the legal profession to boycott the courts because of the infraction of human rights by the old Buhari administration.
For this, he was to suffer professional persecution and the denial of his rights to legitimate promotion and preferment. He became a noble outcast and pariah. In response to this outrage, the radical Students Union of the Obafemi Awolowo University conferred on him the honorary title of Senior Advocate of the Masses.
As a persecuted visionary of the profession, Gani was able to see through the legal chicanery which equates the rule of law with the observation of its formulaic tenets and formalistic tenors without paying any attention to contents and context. This legal game, so beloved of Nigeria’s juridical grandees, can only be sustained as long as the masses are kept firmly in check and under control. Once the masses sniff blood and the stench of incompetence, it is anybody’s game.
In 1983, a section of the Nigerian under-classes rose in fury against the state. The situation was about to snowball into anarchy when the military stepped in. Thirty two years after in 2015, the Nigerian masses needed no such help from a military institution that has badly compromised itself and its professional ethos. In fury, Nigerians rose to dethrone a government that had outlived its usefulness and a ruling party that had exhausted its historical possibilities.
This is what makes this particular conjuncture far more dangerous and threatening than 1983. But like the French Bourbons, the Nigerian ruling class has learnt nothing and forgotten nothing. Otherwise they should know when the game is up. Had he lived and with his visionary intuition, Gani Fawehinmi would have grasped the ritual nexus between the aborted catharsis of 1983 and the renewal of hope for redemption of 2016.
As an absolute historical imperative, the repressed will always return in one form or the other. It is not by accident or sheer historical coincidence that the Fawehinmi example has spawned many avatars in the contemporary Nigerian bar who do not care a hoot about this “ rule of law” thing. The historical stakes have been dramatically raised. 2016 is not 1984. In the current frenzied climate, no group of lawyers will dare issue the kind of ultimatum their forebears slammed on the profession in 1984.
Gani Fawehinmi must be smirking in his grave. In seeming frustration with his beloved country and compatriots, the legal luminary had left a double Parthian, the one public and the other private. Publicly, Gani averred that if a draconian and drastic military regime bent on savage reprisals were to happen on the scene in Nigeria, he would keep his mouth firmly shut and withdraw to his shell.
Privately, he had noted that the only military intervention he would ever welcome in Nigeria again was if a tired and bedraggled young officer were to appear on television telling his compatriots that since he had spent the whole day killing, he was too tired and exhausted to address them.
We are still ages away from these dire scenarios. But given the fact that Fawehinmi is a man of punitive clairvoyance, it may not be for long. All it will take is for the ruse of law to prevail over the rule of law.
The Nation