Nigeria’s Supreme Court is the vanguard of an emerging rule of law. Recent decisions constituted rebukes to former President Olusegun Obasanjo over ousting Vice President Atiku Abubakar from office and excluding him from the latest presidential balloting. The court has also aggressively asserted jurisdiction over high stakes electoral disputes a la Bush v. Gore (2000) in the United States. Equally important, Nigeria’s new President Umaru Yar’Adua has enforced the Supreme Court’s decrees with alacrity and celebrated the rule of law in his speeches and actions. In contrast, his predecessor maneuvered to circumvent or cripple adverse judicial rulings.
Nigeria is perched to enter an unprecedented stage of political stability and prosperity. Optimism is justified despite the disappointing widespread electoral irregularities that marred the election of President Yar’Adua and the worrisome militancy in the Niger Delta featuring kidnappings of foreigners and metastasizing criminality amongst unemployed youths.
Nigeria’s fate should arrest the attention of the United States for two reasons. First, its prodigious oil and gas production and reserves constrain pricing in the international market. As energy prices climb, national economies fall, as exemplified by the U.S. recession in the aftermath of the 1973 Yom Kippur War and the rise of oil prices. Nigeria’s oil and gas further makes the United States less vulnerable to blackmail by hostile Middle East nations or Russia. Second, al Qaeda-affiliated extremists have witnessed a resurgence in North and East Africa in recent years. Al Qaeda in the Islamic Maghreb claimed responsibility for suicide attacks in April in Algeria and on three occasions in Morocco since March. The group would relish a beachhead in Nigeria with its inviting wealth. Nigeria could be a host for the U.S. Defense Department’s planned Africa command, known as AFRICOM.
Since its birth from British colonial rule in 1960, law in Nigeria has customarily been a set of political calculations by military dictatorships or civilian presidents with ulterior motives. The judiciary has generally saluted the prevailing political authorities. In 1970, for example, the Nigerian Supreme Court reversed course on the legitimacy of a revolutionary government when threatened with dissolution by the military. And in 1993, the judiciary declined to intercede when M.K.O. Abiola was denied the presidency by the late Gen. Sani Abacha and his military thugs after the fairest election in Nigeria’s history. As corroboration of Nigeria’s growing legal maturity, virtually all major figures have conceded the injustice to Mr. Abiola, including former President Obasanjo after more than a decade of denial. Mr. Abiola’s election on June 12, 1993, is now celebrated as a holiday.
Additional earmarks of the rule of law are multiplying. The National Assembly blocked President Obasanjo’s scheming for a constitutional amendment permitting a third term, an uncharacteristic demonstration of legislative backbone in Africa. Obasanjo acquiesced in the no-third term verdict. On yielding office to Mr. Yar’Adua — the first civilian transfer of power in Nigeria’s history — Mr. Obasanjo confidently avowed that the days of military intervention had permanently ended.
Judicial assertiveness is eliciting widespread acclaim in a marvelously diverse media and public. That cheerleading further emboldens judges to decide against the generally discredited power elite widely suspected of corruption or self-aggrandizement. Nigeria’s constitutional law is in its infancy.
The Supreme Court is writing on a clean slate unconstrained by precedent and strongly influenced by public opinion to hold government or party officials to account. On a parallel path, the Economic and Financial Crimes Commission has awakened from a prolonged slumber to question several former governors over staggering thefts of public funds.
Vocal critics of officeholders or politicians command homage or approbation, like Nobel Prize winner Wole Soyinka. Judicial challenges are under way to the legitimacy of the prevailing 1999 constitution promulgated by the then Military Government’s Provisional Ruling Council with no popular input. A consensus has emerged that, at a minimum, the constitution needs an overhaul to satisfy international standards of democracy, federalism, individual liberties or otherwise.
The United States should support an independent Nigerian judiciary endowed with authority to check the abuses or usurpations of the executive or legislature, the crown jewel of any constitution. Nigerian judges, lawyers and law schools should be given ready access to decisions of the United States Supreme Court, which should be informative in interpreting Nigeria’s Constitution. Visits should be arranged between American and Nigerian judges to exchange views on judicial independence and judicial review. Scholarships should be made available to Nigerian lawyers or law students to study the United States Supreme Court and the U.S. Constitution in the United States.
The rule of law is too important to Nigeria’s future to be marooned.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. Mr. Fein is also chairman of the American Freedom Agenda, an organization dedicated to restoring checks and balances and protections against government abuses.
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