Rwanda provides Africa with the best test case. The country has become a model for reconciliation with a leadership that has focus and is prepared for sacrifices. Recently, a journalist asked a Rwandan if he expected Paul Kagame to go in 2017. The man replied: Yes, I hope so, and if he does, I will cry.
This is not the place to review the legacy of Mr. Kagame, but the man has become the cynosure of many eyes around the world and has shown that it is better to have talent and honesty than to have oil and dishonesty. Now, Nigerians are hovering around him as a model of leadership. I went to Kigali on a field research in 2004. In the course of my work, I sat through the Gacaca traditional courts which had been set up to resolve some of the issues that were pending in a country where over 200 thousand people were awaiting trial. In less than ten years, 12,000 Gacaca courts have disposed of 1. 2m cases at very minimal financial costs. The Gacaca courts have not replaced the conventional courts in the land, but what we have is evidence of a country that its leadership is determined to ensure justice through the adoption of some creative means that guarantees integrative and restorative justice.
Needed, a Constitution:
As usual, with eyes on 2015, the politicians are angling for the best strategy to position themselves for power. Ordinarily, there is nothing wrong with this. There are calls for the amendment of the Constitution while others are calling for a Sovereign National Conference. The general belief is that this is what we need to redress the injustice that is in the system.
How do we account for constitutional mortality? The American Constitution has survived for over two hundred years largely because it has focused on how to reduce the power of the sovereign. There have been three key concepts guiding Constitutions; amendment, suspension or replacement all aimed at guaranteeing Constitutional endurance, resilience or longevity.
The focus of all Constitutions must be to limit the power of government by ensuring that those who have power use it well and that those who do not have power are adequately protected so that they do not resort to unconstitutional means. This has been at the heart of the social crises in Nigeria. To the military, the Constitution was a distraction to their ambition to hold on to power. Thus, without one, the Nigerian Sovereign appropriated power to himself and the result is what we see today with the dictatorial and intolerant postures of public officers to principles of Constitutionalism, order and process.
Individual citizens usually have competing identities and interests that are based a variety of identities. These include ethnic, communal, religious, regional, class and so on. The duty of a Constitution is to serve as a vehicle for transferring the allegiance of these citizens from these narrow interests to the higher interests of the state. To do this, the state must, through the lofty ideals of the Constitution hold up a higher goal of protection, security, welfare and so on to the citizen. It must command his loyalty and respect.
The next challenge is to create the institutions that will align with the ideals encapsulated in the Constitution. These require maturation and the political elites must never be allowed to apply the principles of quick fixes to turn the constitution into a tool that merely accelerates their political climbing. Thus, there is need for courage, patience, disciple, maturity and statesmanship. Although there is a case to be made of the how a Constitution comes about, popular participation is not necessarily the litmus test. Some of the most enduring Constitution were crafted in smoke filled rooms by the elite, the result of disciplined? bargaining and negotiation. There is clearly a causal relationship between constitutional longevity and political, economic and democratic growth of a nation.
Constitutions must be self-enforcing, they must possess and inherent equilibrium from which none can deviate without consequence. They must possess a quantum of incentives that are sufficiently appealing to all the constituent units and penalties that serve as disincentives to infringement. By way of judicial activism, some unforeseen aspects of the Constitution can be brought to the fore by judicial rulings by radical judges. Here, we recall the roles played by people like the late Gani Fawehinmi or the Bar under the leadership of the combative and assertive late Aka Bashorun. In the United States of America for example, such land mark judgments like Brown vs. Board of Education or the Civil Rights Act, are all evidence of what the Bar and the Bench can do if we are committed to judicial activism.
Constitutions must also include the whole issue of hidden information that is not available to all parties at the time of the framing of the Constitution.
Our Constitution must include the right to rebel and this must be clearly spelt out. Rebellion and public interest litigations help ordinary voices to serve as mechanism for restraint against the excesses of the state. Nigerians have often asked, can we have an Arab spring in Nigeria? The answer is not yet because so far, we are weighed down by petty allegiances and hiding behind little mole hills of ethnicity erected by our village and town crooks who continue to ensure that we do not see the big picture of our collective agony.
Summary and Conclusion: Where
I believe that we all agree with Professor Soludo in his vision of a Nigeria that is a dream waiting to happen. This is not the place for us to enter into a debate as to why this miracle has not happened. I believe most of us are familiar with the reason why this is so.
What is most disturbing is the fact that we have completely taken the intellectual contribution to politics out of our process. We are only concerned with how to capture raw power, how to get into the engine room, how to share in this life changing booty called oil money which is gradually looking like blood money in our country. We need to turn the corner and do so with confidence and assurance. I will make five quick points.
First, we need to fix the economy and I believe that we cannot do better than what we have now under the President and Dr. Ngozi Iweala. We hope that sooner than later, our economy will not only grow, but that we the people shall also grow. This is no easy task. According to the Vision 20-2020 report; The pillars of the Nigerian economy are extremely weak and the continued economic viability of the Nigerian state and the continued economic viability of the Nigerian state is perpetually at risk.
Of great concern is the need to create the leadership to support this vision. Although every government official has taken the transformation agenda as a mantra, it is important that this message percolates through the other crevices of our national life.? This is why the idea of a performance bond is important. However, this performance should not be confused with sycophantic cooking up of figures and power point slides. There is need to clearly lay out the programmes to be measured. For a country that is used to monitors being compromised, the President must ensure that these measuring mechanisms are clearly explained to the people in a way and manner that they can understand. We will also require at least an annual review of the scorecard and this should go right down to the President. This show of good will in my view will go a long way in ensuring confidence in the system and process.
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— Kukah delivered this paper at the 52nd annual general conference of the Nigerian Bar Association (NBA), August 27, 2012 in Abuja
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