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The return of president Buhari after 2019 elections: What is the fate of our democracy?

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The return of president Buhari after 2019 elections: What is the fate of our democracy?

Is our democracy in shackles? Is there any plot to further rape, destroy and finally bury our democracy? These are questions we never thought we would be asking after the 2015 general elections, when PMB was sworn in as the new President of Nigeria.

After all, even though we know democracies are always fragile, the one in which we live in has somehow managed to defy gravity. When a government in power begins to treat their rivals as enemies, intimidate the free press, try to weaken the institutional buffers in our democracy, including the courts, the legislature, and then like flies are to wanton boys, so are (the courts system, the legislatures, political opponents or any former crony of this government who falls out with them) they to the security and anti-corruption agencies of this government, they use them for their sport. Majority of Nigerians are concerned that our democracy may be under threat.

THE RETURN OF PMB IN 2019; WHAT DOES ALL THIS MEAN?

A President with 4 years democratic experience, little observable commitment to constitutional rights and clear authoritarian tendencies (cases of illegal and continued detention of Col. Sambo Dasuki, Elzakzaky, Maazi Nnamdi Kanu, persecution of the activists and opposition parties etc. are few examples).Will PMB’s second term be another era of decimation of the opposition in the name of fighting corruption, political paralysis, social unrest and economic crisis? Democratic institutions (the courts and the legislatures) in Nigeria have been assaulted in the past. During and after the cold war, democracy dissolve in spectacular fashion, through military power and coercion. That was how democracies used to die at the hands of men with guns. PMB was among those who has benefited from such coups d’état.

More recently, on 15th July, 2016, a coup d’état was attempted in Turkey against state institutions including the Government and President Recep Tayyip Erdogan. Egyptian President Mohammed Morsi was toppled in 2013, while the Thai Minister Yingluck Shinawatra was toppled in 2014. These analysis are not in any way an attempt to sideline or bury the history of coup d’états in Nigeria, but its illustrating or bringing more recent coups to bear in this write up. During coup d’états, the death of democracy is immediate and evident to all. The President is either killed, imprisoned or shipped off into exile. The Constitution is suspended or scrapped.

CONTEMPORARY MEANS OF EXECUTING COUP D’ETAT IN DEMOCRATIC NATIONS WITHOUT GUNS

It is important to note that in contemporary democracies, blatant dictatorship in the form of military rule has disappeared much across the world. Military coups and other violent seizures of power are rare, yet democracies are still in shackles, raped, destroyed and buried. Nigeria has mourned the death of democracy several times, however, with the resurrection of democracy in Nigeria, in1999, all hope was kept alive. Most democratic breakdowns these days have been caused not by Generals or soldiers, but by elected government officials themselves.

Democratic institutions have been subverted by elected leaders in countries like Georgia, Hungary, Nicaragua, Peru, the Philippines, Poland, Russia, Sri Lanka, Turkey and Ukraine.

Nowadays, most leaders in trying to subvert democracy and democratic institutions try to cloth it with a veneer of legality in the sense that the legislative are cowed into approving it or the courts are intimidated to accept it. They may even be portrayed as efforts to improve democracy, making the judiciary more efficient, combating corruption, or cleaning up the electoral process. Media houses might still be publishing but some are bought or bullied into self-censorship. Activists or citizens who continue to criticize government often find themselves being challenged or be facing tax issues or other legal troubles/persecution. The likes of late Chief Gani Fawehinmi, (my jurisprudential grandfather), Chief Mike Ozekhome, SAN, (my mentor, father and my boss), Olisa Agbakoba, SAN, Monday Ubani, Esq, Senator Dino Melaye, Deji Adeyanju, political opponents etc. are within those categories.

Surprisingly, people do not immediately realize what is happening, that a tyrant has taken over and is gradually subverting democracy and democratic institutions. People do not immediately realize what is happening, due to the shadow of legality that follows such persecution and because there was no official coup, no declaration of martial law or direct suspension of the Constitution, Legislature or the Courts but a nicodemous constant and frequent use of executive orders which automatically renders the legislature legally impotent (such executive orders will be used more in this PMB’s second tenure. Nigerians should watch out).
Consequently, nothing may set off society’s alarm bells that there is a democratic coup and those who denounce government abuse may be dismissed as exaggerating, crying wolf or anti-government.

HOW VULNERABLE IS NIGERIA’S DEMOCRACY?

Answering such a question requires drawing lessons from the experiences of other democracies around the world and throughout history, which the remaining part of this write up will frequently and constantly x-ray. Studying other democracies in crisis allows us to better understand the challenges facing our own democracy. We can learn from the mistakes that past democratic leaders have made in opening the door to would-be authoritarians and conversely, from the ways that other democracies have kept extremists out of power. No doubt, extremist forces or potential tyrants emerge from time to time in all societies, even in healthy democracies. The United States is not left out, having experienced the likes of Henry Ford, Huey Long, Joseph McCarthy, and George Wallace.

The political antidote is not whether such figures exist, but whether political leaders and especially political parties, work to prevent them from gaining power in the first place, by keeping them off the mainstream party tickets, refusing to endorse or align with them. Isolating or retiring extremist forces requires political courage, but when fear, opportunism, or miscalculation leads established political parties to bring extremists into power, democracy is castrated and imperiled.

IDENYTIFYING WOULD-BE AUTHORITARIAN DEMOCRATS

For potential autocrats to be kept out of power, they have to be identified. Many authoritarians can be easily recognized before they come to power. Most of them have a clear trademark or pattern of behaviour. For instance, Adolf Hitler, a former Head of State (President of Germany) led a failed putsch, Hugo Chavez, former President of Venezuela, led a failed military uprising, Benito Mussolini, former Italian Prime Minister, engaged in paramilitary violence; Juan Peron, former President of Argentina, helped lead a successful coup two and a half years before running for President. Our dear PMB has similar trademark with these autocrats listed above. At some point, PMB had to confess that he is a reformed democrat. It is important to note that most of these autocrats do not normally reveal their full scale authoritarianism before reaching power. Some adhere to democratic norms early in their careers, only to abandon them later. Consider Hungarian Prime Minister Viktor Orban, who governed democratically initially, only for him to start exhibiting his autocratic tendencies after returning to power in 2010.

SOME INDICATORS OF AUTHORITARIAN BEHAVIOUR

According to eminent political scientist, Juan Linz, a professor at Yale in his book ‘The Breakdown of Democratic Regimes’, enumerated certain indicators of authoritarian behavior.

1. Have they supported laws or policies that restrict civil liberties, such as expanded libel or defamation laws, or laws restricting protest, criticism of the government, or certain civil or political organizations?
2. Have they threatened to take legal or other punitive action against critics in rival parties, civil societies or media organizations though clothed in a veneer of legality?
3. Have they tacitly endorsed violence by their supporters by refusing to unambiguously condemn it and punish it?
4. Do they have any ties to armed gangs, paramilitary forces, militias, guerrillas, or other organizations that engage in illicit violence?
5. Do they reject the Constitution or express a willingness to violate it?
6. Do they suggest a need for anti-democratic measures, such as cancelling elections, violating or suspending the Constitution (directly or indirectly through constant use of executive orders), banning certain organizations or restricting basic civil or political rights?
7. Do they seek to use (or endorse use of) extra-constitutional means to change the government, such as military coup, violent insurrections, or mass protests aimed at forcing a change in the government.

FILTERING OUT AUTHORITARIAN POLITICIANS

Keeping authoritarian politicians out of power is more easily said than done. Democracies, after all, are not supposed to ban parties or prohibit candidates from standing for election and such measures should not advisedly be advocated for. The responsibility for filtering out authoritarians lies, rather, with political parties and party leaders, who are mainly party and democracy’s gatekeepers except maybe if there is any advent of individual candidacy much later in our Constitution.

In a political system, gatekeepers are individuals, groups and institutions which control access to positions of power and regulate the flow of information and political influence. Successful gatekeeping requires that mainstream parties to isolate and defeat extremist forces. Pro-democratic parties may engage in distancing/gatekeeping in several ways:

1. Keeping potential authoritarians off party ballots during primaries which entail resisting the temptation to nominate these extremists for higher office even when they can potentially deliver votes.
2. Parties can root out extremists in the grass roots of their own ranks. For instance, the Swedish Conservative Party (AVF) whose youth group called the Swedish National Youth Organization grew increasingly radical in the early 1930s, criticizing parliamentary democracy, openly supporting Hitler. The AVF responded in 1933 by expelling the Organization.
3. Pro-democratic parties can avoid all alliances with anti-democratic parties and candidates. Such alliances were what gave birth to the All Progressives Congress (APC). As we saw in Italy and Germany, pro-democratic parties are sometimes tempted to align with extremists on their ideological flank to win votes or, in parliamentary systems, such alliances can have devastating long term consequences. As Christopher Paolin rightly stated “They may fight with us, but they don’t fight for us.” Linz also rightly stated that the demise of many democracies can be traced to a party’s greater affinity for extremists on its side of the political spectrum than for (mainstream) parties close to the opposite side.
4. Pro-democratic parties can act to systematically isolate, rather than legitimize, extremists.
5. Finally, whenever extremists emerge as serious political contenders, mainstream parties must forge a united front to defeat them.

HOW AUTHORITATIANS SHATTER DEMOCRATIC INSTITUTIONS

Assault on democracy begins slowly. For many citizens, it may be imperceptible at first. After all, elections continue to be held. Opposition politicians are still in Congress, independent newspapers still circulate. Indeed, the Government moves to subvert democracy frequently and in baby steps enjoys a veneer of legality. They are approved by parliament or ruled constitutionally by the Supreme Court. Many of them are adopted under the guise of pursuing some legitimate or even laudable public objective, such as combating corruption, cleaning up elections, improving the quality of democracy, or enhancing national security.

This subtle nature of capturing democratic institutions could be equated to a football match, where the extremist forces or the authoritarians in trying to consolidate powers, captures the referees, sidelines at least some of the other side’s star players, re-writes the rules of the game and is in effect filling the playing field against their opponents. Capturing the referees provides the government with more than a shield. It also offers a powerful weapon in allowing government to selectively enforce the law, punishing opponents while protecting allies. The authorities may be used to target rival politicians, businesses and media outlets. The police can crack down on opposition protest while tolerating acts of violence by pro-government thugs. Intelligence agencies are used to spy on critics and dig up material for blackmail. This seems like the political atmosphere within the Nigerian political space for the past four years. I remember vividly when the phone conversations of two governors, Governor Nyesom Ezenwo Wike and Former Governor Peter Ayodele Fayose were tapped and even published in various online media

Most often, the capture of the referees is done by quietly firing civil servants, judges and other non-partisan officials, and replacing them with loyalists. In Hungary, for example, Prime Minister Viktor Orban packed the nominally independent prosecution service, State Audit Office, Ombudsman’s Office, Central Statistics Office, and Constitutional Court with partisan allies after returning to power in 2010.
In Peru, under the directive of Alberto Fujimori’s intelligence advisor, Peru’s National Intelligence Service videotaped hundreds of opposition politicians, judges, congressmen, businessmen, journalists and editors paying or receiving bribes, entering brothels, or engaging in other illicit activity, and then used the videotapes to blackmail them.
Fujimori also maintained three Supreme Court Justices, two members of the Constitutional Tribunal, and a “staggering” number of Judges and public prosecutions on his payroll, delivering monthly cash payments to their homes.
On the surface, Peru’s justice system functioned like any other, but in the shadows, Fujimori was consolidating power. Judges who cannot be bought off may be targeted for impeachment. The Nigerian judicial system as the last born of the three arms of government has suffered series of intimidation and persecution in our political history especially in the past four years till date and there is hope of any cease fire soon.
When Peron assumed the presidency, four of Argentina’s five-member Supreme Court were conservative opponents. Peron’s allies in Congress impeached three of the justices on grounds of malfeasance (a fourth resigned before he could be impeached). Peron then appointed four loyalists, and the court never opposed him again.
Likewise, when Peru’s Constitutional Tribunal threatened to block President Fujimori’s bid for a third term in 1997, Fujimori’s allies in congress impeached three of the body’s seven justices on the grounds that, in declaring Fujimori’s effort to evade constitutional term limits “unconstitutional,” they themselves had breached the Constitution.

COURT PACKING

WHAT DOES THE TERM COURT PACKING MEANS

The Judicial Procedures Reform Bill of 1937 (frequently called the “court-packing plan”) was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court. Roosevelt’s purpose was to obtain favorable rulings regarding New Deal legislation that the court had ruled unconstitutional. The central provision of the bill would have granted the President power to appoint an additional Justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years and 6 months.
Court-packing is what autocrats do as they begin to consolidate their power. And it’s been a particularly popular method in the past couple decades. Huq and Ginsburg noted that court-packing is a frequently used tool in the toolkit of would-be authoritarians.
Government that cannot remove independent judges may bypass them through court packing.
In “How Democracies Die”, Harvard comparative politics scholars Steven Levitsky and Daniel Ziblatt characterize 1937 as one of America’s close calls with democratic backsliding, along with Richard Nixon’s attempts to evade justice at the end of his presidency.
Levitsky and Ziblatt write. “The failure of Roosevelt’s court-packing scheme and the fall of Nixon were made possible when key members of the president’s own party … decided to stand up and oppose him.”
INSTANCES OF COURT PACKING IN MOST COUNTRIES
• In 1801, before the inauguration of Thomas Jefferson, the outgoing Federalist Party passed the Judiciary Act of 1801, shrinking the court from six to five members by providing that the next member to die or resign would not be replaced. Saylor describes this as “undoubtedly an attempt made by the Federalists to keep the Court wholly Federalist.”
• In 1802, Jefferson’s Democratic – Republican Party repealed the 1801 law and returned the court to six members.
• In 1807, the Jeffersonian-dominated Congress expanded the Court to even members, to accommodate a new judicial circuit covering Kentucky, Tennessee, and Ohio, then new additions to the union.
• In 1837, two new circuits were created and the Court’s size increased to nine; Saylor credits this to the geographic pressures of America’s westward expansion, but notes that Andrew Jackson quickly took advantage and appointed two new justices the day before he left office.
• In 1863, Congress increased the Supreme Court’s size to 10 members in the midst of the Civil War. Saylor explains, “There was a widespread suspicion that Lincoln wanted another man on the Court on whom he could depend lest the body invalidate some of the crucial and doubtful wartime legislation which was coming before it at that time.”
These histories are not one of politically disinterested policymakers negotiating impartially as to the Court’s size. It’s a history of political manipulation with an eye toward partisan advantage.
• In 1999, the Chavez government called elections for a constituent assembly that, in violation of an earlier Supreme Court ruling, awarded itself the power to dissolve all other state institutions, including the court. Fearing for its survival, the Supreme Court acquiesced and ruled the move constitutional. Supreme Court President Cecilia Sosa resigned, declaring that the court had “committed suicide to avoid being assassinated. But the result is the same. It is dead.” Two months later, the Supreme Court was dissolved and replaced by a new Supreme Tribunal of Justice. Even that wasn’t enough to ensure a pliant judiciary, however, in 2004, the Chavez government expanded the size of the Supreme Tribunal from twenty to thirty-two and filled the new posts with “revolutionary” loyalists. That did the trick. Over the next nine years, not a single Supreme Tribunal ruling went against the government.
• In 1946-47, Argentina’s populist President and former military coup conspirator Juan Perón successfully impeached four out of the country’s five Supreme Court justices in a bid to consolidate power.
• In 1989, Argentine President Carlos Menem, fearing Supreme Court opposition to his privatization schemes, expanded the court from five to nine members and packed it with sympathetic judges.
• As part of Viktor Orban’s rise to power as Hungary’s dictator, in 2010 he and his Fidesz party amended the rules of Supreme Court appointment so that the opposition no longer had to assent to nominees; in 2011 they expanded the number of judges from 11 to 15; in 2012 and 2013 they expanded terms on the bench from nine to 12 years and eliminated the 70-year age limit previously in place. These moves, together, resulted in 11 out of 15 judges being Fidesz loyalists. The Orban government expanded the size of the Constitutional Court from eight to fifteen.
• Among many other attempts to weaken the judiciary, Turkey’s authoritarian President Recep Tayyip Erdoğan, then the prime minister, in 2010 pushed through a referendum increasing the Constitutional Court’s size from 11 to 17 and enabling him and his loyalists to fill the new vacancies.
Nigeria is not left out in the court packing system, with the recent sting operation in the house of most Judges at the middle of the night, and also with the recent suspension of the Chief Justice of Nigeria, Justice Walter Onnoghen, all clothed with the tag of fighting corruption without following due process, most Nigerians believe our democracy as at the brink of collapse.
One of the great ironies of how democracies die is that the very defense of democracy is often used as a pretext for its subversion. Would be autocrats often use economic crises, security threats, wars, corruption, armed insurgencies, or terrorist attacks to justify antidemocratic measures. That was why PMB asserted that security and national interest should be elevated above the rule of law, while forgetting the immortal words of the Supreme Court in Military Governor of Lagos State v Odumegwu Ojukwu (2001) FWLR (part 50) 1779, 1802, coram erudite Obaseki, JSC:
“The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which professes loudly to follow the rule of law, gives no room for the rule of self-help by force to operate”.

May God bless and heal Nigeria.

Kasiemobi Oranugo, Esq,
Senior Counsel
Mike Ozekhome’s Chambers
tomyikaba@gmail.com

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