Democracy, security & poverty in ghana -a mid-term review of the kufuor administration
CONTENTSEditor’s Note page 3ArticlesState, Governance and Insecurity in AfricaRichard Joseph page 5The Promise of Constitutionalism and the Challenge of Militarism:Constraints and Possibilities of the Human Rights Movement in NigeriaBonny Ibhawoh page 15Political Liberalisation and Democratic Change inSub-Saharan Africa, 1970-1995: A Cross-Sectional AnalysisPatrick Johnston & Chris Lee page 37Democracy, Security & Poverty in Ghana:A Mid-Term Review of the Kufuor AdministrationJ.’Kayode Fayemi, Thomas Jaye & Zaya Yeebo page 53BriefingsThe Life and Times of A.M. Babu: Personal Reflections by Issa G. Shivji page 89La Crise Ivoirienne :Elements pour Situer ses Origines et ses Dimensions Sous-regionales page 97 by Abdoulaye BathilyBook reviewsFrancis Wilson et al. (eds.), Poverty Reduction (by Wale Adebanwi) page 105Camilla Toulmin et al., (eds) The Dynamics of Resource Tenure in West Africa (by Olly Owen) page 107Tekeste Negash & Kjetil Tronvoll, Brothers at War (by Sara Rich Dorman) page 109Emmanuel Kwaku Akyeampong, Between the Sea and the Lagoon (by Patrick Dela Cofie) page 112Richard Rathbone, Nkrumah and the Chiefs (by Emmanuel Kwesi Aning) page 114E. Ike Udogu (ed.) The Issue of Political Ethnicity in Africa (by Kathryn Nwajiaku) page 117Hein Marais, South Africa: Limits to Change (by Buntu Siwisa) page 120Ted Leggett, Rainbow Vice: The Drugs and Sex Industries in the New South Africa (by Kirsten Harrison) page 123Eboe Hutchful, Ghana’s Adjustment Experience (by Mike Bristow) page 125George Saitoti, The Challenges of Economic and Institutional Reforms in Africa (by Oloya Aliker Tebere) page 127Korwa G. Adar & Rok Ajulu (eds.) Globalization and Emerging Trends in African States’ Foreign Policy-Making Process (by W. Alade Fawole) page 130Michael O. Anda, International Relations in Contemporary Africa (by Christopher Ankersen) Page 133Books available for review Page 137
2 SubscriptionsAnnual subscription for corporate bodies: £75 for UK; €124 for EU; $112 forother countries (special rates apply for Africa); andfor individuals: £30 for UK; €52 for EU; $48 for other countries.Single copy rate for corporate bodies: £40 for UK; €67 for EU; $59 for othercountries; and for individuals: £17 for UK; €30 for EU; $27 for other countries.Cheques should be made payable to Centre for Democracy & Development Notes for Contributors• Send all articles, book reviews, notices, and other correspondence to: The Editor Democracy & Development: Journal of West African Affairs Unit 6 Canonbury Yard, 190A New North Road, London N1 7BJ, UK Tel: +44 (0)207 288 8666, Fax: +44 (0)207 288 8672 or: 2 Olabode Close, Ilupeju Estate, P.O. Box 15700, Ikeja, Lagos, Nigeria Tel: +234 (0)1 804 3221, Fax: +234 (0)1 493 4420 E-mail: firstname.lastname@example.org, Internet: www.cdd.org.uk• Submitted articles and/or reviews should be typed double space and with a wide margin on the left. Articles should not be more than 8,000 words; reviews, 1,500 words. Articles can be submitted by email as MS Word attachment or as a MS Word document on a floppy disk by post.• Include professional details about the author at the bottom of the first page.• Democracy & Development’s house style is modelled on the Oxford English Dictionary and avoids ‘Americanisms’ like ‘organize’ (organise) and ‘demo- cratization’ (democratisation). Italicise book and journal titles. Use single quo- tation marks.• Notes and references should appear on a separate page at the end of the article, and should be listed as follows: For books: Clark, A.F. 2000. ‘From Military Dictatorship to Democracy: The democratisation Process in Mali’, in Bingen, R.J. et al. (eds.) Democracy and Development in Mali. East Lansing, MI: Michigan State University Press. For journals: Hentz, J. 2000. ‘The two faces of privatisation: political and eco- nomic logics in transitional South Africa’, in The Journal of Modern African Studies, vol.38, no.2, pp.203-223.
4 Editors Notesocialism in the last century, while Abdoulaye Bathily reflects critically on thesmouldering crisis in Cote d’Ivoire. He puts the crisis itself in historical context,something that a large number of commentators on the current crisis have failed todo. He also offers suggestions that might help forestall a possible humanitariantragedy in the sub-region.Since the publication of the Rains Edition of the journal, the editor, Dr. Ike Okonta,has moved on to other challenges as a post-doctoral fellow at University of Cali-fornia at Berkeley, USA. We would like to use this opportunity to wish him thebest in his current endeavours. As this regional baby passes unto the hands of anew minder, it is the wish of the editorial board that the journal shall continue toadvance to greater heights.Finally, we wish to acknowledge with thanks, the support of the Ford Foundation,particularly its Governance and Civil Society Unit in New York, for making thepublication of this journal possible.Ebenezer Obadare, Editor
6 Richard Joseph Mais, ne soyons pas totalement pessimistes. Les actions de toutes les organisations quiœuvrent en faveur de la bonne gouvernance et du développement, comme le Centre pour laDémocratie et le Développement (CDD), qui sont les hôtes de cet événement, continuent àeffectuer un travail important qui, au bout du compte, contribuera à assurer un bel avenir àl’Afrique. ______________________This is a critical moment in the history of African peoples. If I had to suggest oneword to characterise their current status; it would be ‘insecurity’. This insecurityaffects virtually everyone. The poor and disadvantaged, of course, suffer most.However, filaments of insecurity connect those at the bottom to those at the top ofthe political and social hierarchy, and vice-versa. They extend across ethnic, reli-gious, and regional boundaries. They cross borders in the movement of refugeesand smugglers of arms, drugs and precious stones. Insecurity is also driving Afri-cans in increasing numbers out of Africa. Bands of illegal immigrants, weary fromperilous journeys over land and sea, are picked up by police forces on the southernshores of Europe almost every day. We will never know how many of these jour-neys end in capsised crafts. I often meet these exiles in the cities of the United States, usually as drivers oftaxis. The tales they tell differ only in the details. They had become tired of theuncertainty and insecurity of Africa. Distrustful of the promises of their gov-ernments, and seeing little prospect of improving their livelihoods, they are pre-pared to accept jobs well below their qualifications for the sake of their children.The brain drain from Africa is also relentless. At great expense to their countries, anew generation of African professionals has emerged. Instead of the security andhappiness they anticipated during their years of training, they find themselvesenmeshed in a wearing struggle over basic necessities – electricity, water, and evenpetroleum in oil-rich countries. The more developed nations increasingly benefitfrom their skills and talents. I recall the program conducted by the first governmentin Nigeria led by President Olusegun Obasanjo (1976-1979) to train scientists andadvanced technicians, mainly overseas, to lead Nigeria’s transition to a moderneconomy. What happened to them, I sometimes wonder. Whose technologicalrevolution are they advancing? Individuals who reach the top of the pyramid seldom experience the secure en-joyment of their wealth and power. Whether they have stashed their earnings inforeign banks or invested them in palatial residences, wealth can be quickly lost asa result of a sudden change in the political equation. In much of Africa, autocratsstill impede democratic progress by tenaciously clinging to their arbitrary powers.When they are eventually pushed from power, the edifice they constructed crum-bles in their wake. What have long-time rulers Mobutu Sese Seko and Félix Hou-phouët-Boigny left behind in the failed and fractured states of Congo and Côted’Ivoire? What will Daniel arap Moi hand over to his successor after the December2002 elections (and 24 years in power) in a Kenya hobbled by corruption, eco-nomic decay and ethnic conflict? What will be left of Zimbabwe after RobertMugabe’s tyranny?
Democracy & Development – Journal of West African Affairs 7 In my reflections on the African experience, I return time and again to thewell-known dictum of Kwame Nkrumah, the first leader of post-independenceGhana (1957-1966): ‘Seek ye first the political kingdom and all other things shallbe added unto you’. My first teacher of African politics, the British scholar, Tho-mas Hodgkin, was a close associate of Nkrumah. He recalled Nkrumah’s efforts tobolster his personal security through expanding the intelligence services and intro-ducing repressive legislation. With each step down this path, Nkrumah became lesssecure, and his government drifted further from its mission. Finally, his hardenedregime was toppled in a military coup, initiating a quarter-century of alternatingmilitary and civilian governments. Nkrumah had a profound understanding of thechallenges confronting post-colonial Africa, but his methods became increasinglycounter-productive. He understood that the security of Africa’s peoples dependscritically on the political entities they construct to pursue their common interests atnational, regional and continental levels. The failure to establish coherent, legiti-mate and developmental states has rendered it impossible for the continent toachieve political stability and sustainable growth. This is a point I have made onmany occasions, beginning with my 1987 book, Democracy and Prebendal Politicsin Nigeria.Africa and the New World OrderWorld poverty has moved to the forefront of international concerns thanks to theefforts of determined advocates and organisations. Of particular importance is thecommitment of United Nations Secretary-General Kofi Annan to reduce the widen-ing gap between rich and poor, now reflected in the Millennium DevelopmentGoals (MDG). The MDG set eight global targets for poverty reduction and im-provements in the general areas of health, education, the environment and in othersocial indices by the year 2015. The most prominent of the goals is to halve ex-treme poverty worldwide. From the perspective of the MDG, the grinding povertyof urban and rural Africans has become a challenge of global significance. Accord-ing to Pierre Englebert, writing in his 2000 book State Legitimacy and Develop-ment in Africa, ‘since 1960, Africans have seen their income rise by less than one-half of a percent per year, leaving the continent with the worst development recordand the highest concentration of countries with negative growth of all the regionsof the world.’ At a conference in Washington, DC on November 21st, U.S. Treasury UnderSecretary John Taylor provided statistics contrasting the relative economic per-formance of various countries and regions. They were astounding for what theyindicated about Africa. Taylor’s data revealed that Korea’s labour productivity, animportant indicator of economic capacity, rose at an average rate of 6% per yearbetween 1960 and 1999. Nigeria’s, by contrast, grew by only a few decimal points.When regions of the world were compared for the years 1991 to 1999, the increasefor East Asia was 5.5%, Latin America, 1.2%, and Africa, -0.5%. In other words,Africa slipped further behind during the 1990s despite the many policy changesintroduced under the guidance of international financial agencies. The New Partnership for Africa’s Development (NEPAD) was presented tothe international community in 2001 as Africa’s collective strategy to reverse these
8 Richard Josephdownward trends and achieve sustainable development. While NEPAD calls forincreases in foreign aid, investment and debt relief, it also emphasises the need forAfrican governments to create growth-friendly environments by promoting trans-parency, democracy and accountability. It took remarkable feats of diplomacy toobtain the agreement of many African countries to the principles and objectives ofNEPAD. There has been vocal support for NEPAD from international donors,especially in regard to its commitments to good governance, sound macro-economic policies, and the creation of a peer review system. However, what wasexpected to be a crowning moment for NEPAD, namely the meeting of the G-8nations in Kananaskis, Canada in June 2002, fell well short of the hopes of Africanleaders. The G-8’s Africa Action Plan, the official response to the NEPAD propo-sal, commits an additional $6 billion in assistance to Africa. While this represents alaudable increase, it pales in comparison to the $64 billion African leaders hadproposed to finance NEPAD initiatives. In the new world order led by a U.S. Administration committed to the vigorouspursuit of its national interests, American policies will profoundly impact Africanefforts to achieve peace and development. I will discuss three of these briefly. Inthe current global economic downturn, industrialised countries are taking steps tominimise the slippage in their national economies and position themselves tobenefit from the upturn. After more than a decade of structural adjustment pro-grams and the adoption of market-oriented strategies, virtually all African countriesare currently seeking to increase their engagement in the world economy andcompete more effectively to attract foreign investment. The African Growth andOpportunity Act (AGOA) enacted by the Bill Clinton Administration providesincentives to increase African exports to the United States. By allowing free accessto U.S. markets for a specified range of countries and products, AGOA has contri-buted to an increase in American imports from Africa by 61% in the past twoyears. In August 2002, President Bush expanded AGOA by clarifying and easingrule-of-origin requirements and adding Botswana and Namibia to the list of eligibleparticipants. While AGOA appears to be making initial headway in the opening of Ameri-can markets to African goods, recent attention has centred on a major new initiativein American development assistance, namely the Millennium Challenge Account(MCA). The central feature of the MCA is a 50% increase in U.S. developmentassistance that will result in an additional $5 billion in aid by 2006. Assuming it isapproved by Congress, the MCA will reverse the downward trend in AmericanOverseas Development Assistance (ODA). Aid levels as a share of the U.S. econ-omy and budget, however, would remain below the levels achieved during the fivedecades, 1945-1995. The funding increase will be administered by the MillenniumChallenge Corporation, a new agency chaired by the U.S. Secretary of State. Usinga new method in aid distribution, MCA funds will go to a small number of count-ries (estimated at 13 for 2004) who, in the words of President Bush, ‘govern justly,invest in their people, and encourage economic freedom The MCA intends to giveselected countries flexibility and ownership in their development plans, but willalso require accountability and measurable results. What will these initiatives mean for Africa? Since the first round of the MCAis restricted to least developed countries, several African countries will be invited
Democracy & Development – Journal of West African Affairs 9to participate. However, the majority will continue to receive a share of ODAadministered by the U.S. Agency for International Development under currentguidelines. Other bilateral donors, while expressing verbal support for NEPAD’scontinental approach, are likely to follow the lead of the U.S. government. We cantherefore expect that a dual approach to development assistance will emerge in thecoming years: preferential assistance to countries that demonstrate what is deemedgood and responsible governance in political, economic and social affairs, andhumanitarian aid funnelled to the rest through private sector and non-governmentalgroups as well as governments. Security policy is the third major dimension of the new world order, after tradeand aid, that will impact Africa. Once again, following the lead of the UnitedStates, global security is defined, especially since the incidents of September 11,2001, as security from acts of terrorism. In the post-Cold War world, counter-terrorism has replaced anti-communism as the major preoccupation of Americanforeign policy. In the same way that relations with African countries before 1989were determined by East-West rivalries, they will now be greatly influenced by theglobal struggle against terrorist groups and governments considered to be directlyor indirectly assisting such groups. African oil producers figure centrally in thisnew strategy as industrialised countries seek to reduce their dependence on MiddleEast oil. The Cold War created many distortions in Africa whose unfortunate conse-quences still prevail. To external powers, the internal governance of countriesmattered less than their strategic value because of a particular export, the locationof global communication facilities, their willingness to act as conduits for militaryarmaments, and whether they happened to serve on the U.N. Security Council atcritical moments. Once again, Washington, DC is sending two different messages:we strongly advocate democracy, human rights, the rule of law, and transparentand honest economic performance; we need your oil, your bases, overflight facili-ties, and your active facilitation of our security operations. In some cases, countriesthat respond to the first summons will also be responsive to the second. In others,they will not, and we may experience Liberia, Kenya, Somalia, Sudan and Zaire allover again, i.e. close relations for strategic reasons with repressive regimes. Thehigh profile meetings of President Bush and Defence Secretary Donald Rumsfeldwith leaders of East African nations in December 2002 considered essential tocounter-terrorism and counter-Iraq operations – such as Moi of Kenya, MelesZenawi of Ethiopia, and Issaias Afwerki of Eritrea, all of whom have deplorablehuman rights records – is reminiscent of the bifurcation of Cold War policies inAfrica. All governments are expected to advance their national security interests.However, while Africa’s homeland security needs are great, its capacity to pursuethem is limited. Since the arrival of an elected government in Nigeria in 1999, forexample, more than three times as many individuals have died in communal con-flicts, at the hands of police and military forces, or as a result of catastrophic fail-ures such as the armoury explosion in Lagos, as were lost in the 9/11 bombingincidents in the United States. Well over two million persons have died in Sudansince the civil war resumed in 1983, and as many in Eastern Congo since the fall ofMobutu in 1997. When we consider persistent warfare in the Mano River zone of
10 Richard JosephWest Africa (Liberia, Sierra Leone, Guinea), the violent fissuring of Côte d’Ivoire,widespread famine in southern Africa abetted by brutality and official ineptitude,and Africa’s 30 million AIDS sufferers, it is arguable that the security needs of theAfrican people exceed those of any other on earth. These profound deficiencies arerisk being overridden as Africa becomes, once again, an arena of proxy globalconflicts – witness the U.S. embassy bombings in Kenya and Tanzania in 1998 andthe anti-Israeli attacks in Mombasa, Kenya of November 2002. Following the Cold War, the Western powers announced with fanfare theirsupport for transitions from autocratic and military governments in Africa, andtheir determination to tie development assistance to economic and political liberali-sation. The implementation of this new strategy was mixed. As in the case ofAfghanistan after the defeat of the Soviet occupiers, there was no Western com-mitment to rebuild Africa in compensation for the travails inflicted by Cold Wargeopolitics. In the tragic case of Liberia, which has lost a tenth of its populationand decades of development to warlordism and tyranny, American political leaderscontinue to disavow principal responsibility for rescuing a country once valued forits communication assets makes chilling reading. The current creation of a U.S.operational base in the small country of Djibouti in the Horn of Africa, and regularNATO patrols along the Somali coast since the defeat of the Taliban regime, arejust the visible aspects of enhanced American security operations in Africa. In viewof the severe economic hardships in much of Africa, the many protracted conflicts,and the low institutional capacity of many states, external security operations inthis continent should not be conducted myopically. Post-Cold War hindsight showsthat American intervention must be coupled with appropriate policies for tacklingAfrica’s own complex security needs.Transforming Governance and Rebuilding StatesIn 1988, after serving as a Ford Foundation Program Officer in West Africa, Ireturned to the U.S. determined to focus on governance issues. As a consequence,the African Governance Program was created at the Carter Center in Atlanta undermy direction. Many gains in Africa were made during the 1990s especially in theemergence of more open polities and a handful of genuine democracies. However,the erosion of public institutions, as a result of corruption, autocratic rule, and thepolitical manipulation of ethnicity and religion, has not abated. Without a funda-mental, indeed revolutionary, transformation of governance in Africa, in bothprivate and public sectors and at local, provisional and national levels, the woes ofthe continent will deepen. In 1968, Stanislav Andreski published a provocative book entitled, The Afri-can Predicament. Most African intellectuals and students of Africa rejected thisstudy as being overly disparaging of the continent and its societies. The languageof the book still offends but the concerns it raises about statehood, nationhood,ethnicity, and corruption are central to our current preoccupations. Andreskiclaimed, in exaggerated style, that ‘the newly independent African states providesome of the closest approximations to pure kleptocracy that have been recorded.’‘The use of public office for private enrichment,’ he further argued, ‘is the normaland accepted practice in African states and the exceptions are few and inconclu-
Democracy & Development – Journal of West African Affairs 11sive.’ During the last three decades, it could have been demonstrated by Africangovernments that Andreski was utterly mistaken. Instead, the use of the term‘kleptocratic’ to describe African governments has gone from verboten tocommonplace. At a recent meeting at the United States Institute of Peace in Wash-ington, DC, for example, Ellen Johnson Sirleaf, Liberian party leader and businessexecutive, dismissed the Liberian government led by ex-warlord Charles Taylor asan ‘autocratic kleptocracy.’ In a room packed with Liberians and American policyscholars and practitioners, no one objected. On May 29, 1999, I was present at the inauguration of President OlusegunObasanjo when he delivered one of the most forthright condemnations of corrup-tion I have ever heard. Today, Nigeria is regarded internationally as having mademinimal progress in responding to this challenge. Entrenched political corruptionhas become one element of a broader phenomenon that can be called ‘catastrophicgovernance’. I define catastrophic governance as endemic practices that steadilyundermine a country’s capacity to increase the supply of public goods. It is cata-strophic governance that is mainly responsible for Africa’s failure to realize itsimmense development potential, aided and abetted by external opportunists. Thereare numerous studies that detail this sad record, for example, the 2001 award-winning book African Economies and Politics of Permanent Crisis by Nicolas vande Walle. Van de Walle contends that the failure to accelerate economic growth inAfrica despite two decades of ‘unprecedented aid flows’ is largely attributable togovernance and institutional deficiencies. Today, as discussed above, international donors are devoting considerable at-tention to improving aid effectiveness. Frankly, Africa’s most crippling deficiencyis not the absence of adequate resources but the failure to generate the necessaryinstitutional capacity in both public and private sectors to make effective use ofavailable resources, whatever their provenance. There is little doubt that interna-tional donors will increase the flow of development aid to Africa, tighten thestandards by which it is administered, and take steps to improve the delivery andcoordination of their assistance. What remains to be demonstrated is that the insti-tutional capacity to make productive use of these aid flows, as well as Africa’s ownresources, will improve in the continent. Unless the chains of catastrophic govern-ance are broken, Africa’s productivity will slip further behind that of the rest of theworld. Nigeria illustrates vividly this predicament. In a November 27, 2002 articlein the Wall Street Journal, former U.S. Ambassador to Nigeria Princeton Lymanobserves that Nigeria’s failure to achieve, ‘effective government, sound economicpolicies or long periods of even formal democracy… threaten to ignite the worstform of religious violence, indeed they threaten the continued unity of the country.’‘Nigeria reels from one of the worst economic declines in the world,’ he states, and‘corruption has robbed the country blind.’ There is no single solution to the di-lemma of building African institutional capacity. It will take a concerted and col-laborative effort among many actors and organisations, in Africa and internation-ally, to effect a lasting transformation of African governance. Systems of governance are fundamental to the building of states. Two weeksago I paid my first visit to South Korea to attend a meeting of the Community ofDemocracies. As I told the delegates during a plenary session, one of my reasonsfor making the long trip was to see with my own eyes a country that, fifty years
12 Richard Josephago, was considered to have less favourable development prospects than severalAfrican countries such as Ghana and Nigeria. How, fifty years later, do we gener-ate processes in Africa comparable to the institution-building experiences of Koreaand other economically dynamic Asian countries? Throughout Africa, key institu-tions in every sector – health, transport, education, public utilities – are still beingeroded from the inside. How can a revolution in African governance be effectedthat would build complexes of institutions, from local to national levels, that oper-ate synergistically? No country can undergo sustainable development unless itarrives at its own answers to these questions. Today’s global economy provides dividends to nation-state entities – whatevertheir size – which develop strong institutions, an educated population, and predict-able legal and regulatory systems. In the case of South Africa, once apartheid wasdismantled, the country’s institutional capacity in public and private sectors en-abled it to respond relatively effectively to many challenges. Nigeria, by contrast,has shuttled from one political system to another without registering significantincreases in the operational capacity of its institutions. As the nation enters anotherperiod of electoral competition, against the backdrop of high social tensions, waysmust be found to prevent further damage to the fragile political and economicinfrastructures of the federation. This is obviously a task to which Nigerian civic,business and religious organisations can contribute enormously. The revolutionary transformation of governance in Africa must be directedfrom within the continent, within Africa’s communities, schools, businesses, andresearch institutes. It must also involve the active participation of Africa’s manysons and daughters who have honed their skills in overseas institutions. I lookforward to being a partner in this momentous endeavour. I was recently appointedDirector of the Program of African Studies of Northwestern University. This is theoldest program of its kind in the United States, established in 1948. Northwestern’sMelville J. Herskovits Africana library, created in 1954, is the largest separatelibrary devoted to the study of Africa in the world. Under the leadership of Dr.Henry Bienen, President of Northwestern and a distinguished student of Africanpolitics, there is a unique opportunity to extend this legacy of service to Africa andAfrican peoples worldwide. In a report published earlier this year, I proposed thecreation of ‘Smart Partnerships for African Development’. This program willencourage a significant increase in the resources available to African institutionsthrough long-term partnerships with universities such as Northwestern and otherorganisations. Twenty-five years ago, I wrote my first article on Nigeria’s political economy:‘Affluence and Underdevelopment: The Nigerian Experience.’ In 2015, whenNigeria has surpassed the Millennium Development Goals, perhaps a sequel will bewritten entitled ‘Affluence and Development: The Nigerian Experience’. In just afew decades, we have seen the phenomenal growth of China and the steady ad-vance of India, two countries whose size and social complexity exceed those ofNigeria. With the hundreds of billions of dollars that Nigeria has earned frompetroleum export over the past three decades, this country should now be establish-ing its own Millennium Challenge Account for the benefit of Nigerians as well asAfrican peoples worldwide. I believe that this vision can be realized. It must berealized. We must make it happen.
Democracy & Development – Journal of West African Affairs 13ReferencesAndreski, S. 1968. The African Predicament: A Study in the Pathology of Moderni- sation. London: Michael Joseph.Englebert, P. 2000. State Legitimacy and Development in Africa. Boulder, CO: Lynne Rienner.Joseph, R. 1987. Democracy and Prebendal Politics in Nigeria: The Rise and Fall of the Second Republic. Cambridge: Cambridge University Press.Van de Walle, N. 2001. African Economies and the Politics of Permanent Crisis, 1979-1999. Cambridge: Cambridge University Press.
16 Bonny Ibhawoh Bien que l’indépendance était le premier pas vers une garantie constitutionnelle pourles droits fondamentaux des Nigérians, l’élitisme du nouveau gouvernement indépendants’assurait que le peuple restait soumis. Comme son prédécesseur colonial, le gouvernementde la période post - indépendance utilisait une législation coercitive et répressive pourmaintenir le contrôle politique. En 1962, les abus des droits de l’homme avaient augmentélorsque l’état donna des pouvoirs illimités aux agents de sécurité et à la police. Tout aulong de la première république, il n’existait aucune organisation cohérente qui plaidaitpour les droits de l’homme. L’activisme des ONGs que plus tard incarnaient les mouve-ments des droits de l’homme n’ont vu le jour qu’aux années 80, quand la dictature militairedevenait de plus en plus répressive. En 1966, le Nigeria avait connu son premier coupd’état. Le nouveau leader militaire, Général Ironsi, avait promis un retour a l’égalité etaux droits de l’homme, mais cela n’avait pas duré. Jusqu’en 1979, les coups d’états succes-sifs qui avaient suivi le régime d’Ironsi s’assuraient que la question des droits de l’hommeserait reléguée à l’arrière plan et ne faisaient même plus partie de la rhétorique politique.Mais en 1979, le rétablissement de l’autorité démocratique civil après dix ans de dictaturemilitaire avait introduit une nouvelle période de constitutionalisme au Nigeria. L’activismedu judiciaire pendant la deuxième république avait abouti à des progrès substantiels pourles droits de l’homme. Mais en 1983, le retour du pouvoir militaire de Buhari avait effacéles progrès acquis sous le régime précédent. Des lois répressives et arbitraires avaient étére-introduites en contravention des droits fondamentaux prévus dans la constitution de1979. C’était en réaction à cette situation de répression que le coup d’état militaire deBabanguida avait eu lieu en 1985. En promettant de restaurer les droits de tous les Nigé-rians, Babanguida s’assurait une légitimité immédiate. Désormais, les reformes économiques instituées par son gouvernement sous instruc-tion de la Banque Mondial et du FMI avaient provoqué une grande opposition. Le régimede Babanguida avait eu recours à l’oppression de toute opposition et avait interdit laliberté des médias et des syndicats populaires. Les lois répressives du régime précédant deBuhari avaient été re-instaurées et même intensifiées. Néanmoins, le développement,accompagné de la résurgence des notions des droits de l’homme après la guerre froidedans l’agenda politique international, avait abouti à une période sans précédentd’activisme en faveur des droits de l’homme. Entre 1987-1989, plusieurs organisations desdroits de l’homme avaient vu le jour et en 1992, pendant la dictature de Sani Abacha, ellesavaient mis sur pied une coalition sous l’égide du CD (Campaign for Democracy). Le CDavait fourni une plate-forme pour qu’un front uni puisse être le porte-parole de tous cesmouvements. En outre, pour la première fois dans l’histoire du pays, le CD avait mis aupoint un programme cohérent et collectif pour les mouvements des droits de l’homme auNigeria. Néanmoins, les organisations des droits de l’homme en Afrique font face à deux pro-blèmes sérieux – le manque de légitimité et de bienséance. Cela est dû au fait que la plu-part des organisations des droits de l’homme ont des fortes alliances politiques et ne sesoucient pas autant aux questions pressantes d’ordre économique, social et culturel quisont importants dans ces pays appauvris. De plus, la plupart de ces organisations man-quent du soutient des communautés à la base. Elles sont souvent financées par des fonda-teurs ou ONG étrangers. Cette dépendance de l’Occident limite l’indépendance de leursinitiatives et implique une relation neo-imperialiste donnant lieu à la suspicion. Par exem-ple, beaucoup d’ONG nigériennes ont façonné leurs programmes de manière à ce qu’ilscoïncident avec ceux des agences donatrices afin de garantir le flux de l’argent frais. Lesrégimes militaires au Nigeria ont utilisé cette dépendance pour accuser les mouvements desdroits de l’homme d’être des pro-imperialistes. Les mouvements des droits de l’hommeexpliquent qu’il n’y pas de ressources locales adéquates pour financer leurs projets. Enréalité, ils n’en ont pas cherché et il y a une dépendance complaisante de l’Occident. Desorganisations de base ont pu pendant longtemps mobilisé le peuple sans soutient externe et
Democracy & Development – Journal of West African Affairs 17il n’y a aucune raison pour que les mouvements des droits de l’homme ne puissent exploreret adopter cette tradition. Un troisième problème découle du fait que peu d’organisationsdes droits de l’homme centrent leur travail dans des zones rurales, alors qu’elles sontsouvent accusées d’élitistes. Un mouvement viable des droits de l’homme ne peut pas êtrecréé si cet éloignement des vrais sources des abus des droits de l’homme persiste. Il n’y adonc aucun avenir pour les mouvements des droits de l’homme s’ils ne bénéficient pas dusoutien idéologique et financier local. Leurs objectifs et leurs aspirations doivent refléterles besoins et les perspectives du peuple. Pour s’assurer de la légitimité et de la bienséan-ce, les mouvements des droits de l’homme au Nigeria et dans toute l’Afrique doivents’évertuer à éviter les pièges des premiers mouvements nationalistes. Leurs projets doiventêtre en accord avec les besoins populaires en abordant non pas seulement les abus visiblescomme la censure de la presse, mais aussi les questions moins visibles, comme la pauvreté,les inégalités basées sur le sexe, et le sous-développement qui continue à violer les droitsde l’homme et les libertés de la majorité des pauvres dans le monde rural. ______________________IntroductionThree significant epochs can be identified in the evolution of the human rightsmovement in Nigeria. The first was hinged on the fight against colonialism andspecifically, the agitation against the abrogation of the right to self-determinationand other civil and economic rights by the British colonialists. Although not oftenrealised, the anti-colonial struggle in Nigeria, as elsewhere in Africa, was also averitable human rights movement though one with an overriding nationalist politi-cal agenda (Mutua 1999). The second epoch in the development of the humanrights movement in Nigeria grew out of the promise of democracy and constitu-tionalism which independence ushered. It reflected the nation-building aspirationsof the emergent political elite and its idealism towards forging the structures of thenew state. The third epoch, characterised by NGO activism, was a response to thefailure of these aspirations; the structural inadequacies of the post-colonial state;the break down of constitutional rule and the authoritarianism and repression thatsubsequently became associated with military dictatorship in the country. In each of these epochs, the human rights movement has reflected the peculiarchallenges that have confronted the state, as well as the changing goals and aspira-tions of each phase of the movement. In each epoch, the human rights movement inNigeria has also been faced with crucial questions of relevance and legitimacy. Inthe anti-colonialist struggle, the elitist, and sometimes ethnic character of thenationalist movement raised questions regarding its relevance and cast doubts overthe legitimacy of its rights agenda. In the post-independence dispensation, similarquestions have been raised bordering on viability, independence, and the level ofdomestic support which human rights NGOs command. This paper addresses some of these questions. In comparing the differentphases of the human rights movement in Nigeria, it examines the successes, tra-vails and constraints of the human rights movement as it has evolved in Nigeria. Itexplores the ways in which the movement has contended with the dynamics ofcolonialism, constitutionalism and militarism in the nation’s political development.
18 Bonny IbhawohOverall, it seeks to broadly evaluate the relevance, viability and legitimacy of thehuman rights movement in Nigeria within the context of changing socio-politicalrealities.The Nationalist AntecedentsAlthough the emergence of Nigerian nationalism predated the establishment ofeffective British rule over the whole country, it was the amalgamation of Northernand Southern Nigeria into a single colonial administrative unit by the British auth-orities in 1914, which created a common consciousness as the basis of the newstate.2 The development of a common nationalist consciousness was informedprimarily by the desire of local peoples for self-rule and freedom from foreigncontrol; the quest for an end to racial intolerance and discrimination, and the de-mand for the opening up of opportunities for Nigerians in the colonial economyand administrative machinery. These were issues that affected all Nigerians irre-spective of their ethnic origins and social status. The nationalist organisations,which emerged to address these issues, were therefore established with the mainpurpose of mobilising, not just a particular class or group, but the entire populationof Nigeria against what was perceived as oppressive British colonial rule. To dothis effectively, a broad agenda, which addressed the issue of the rights and liber-ties of local people, had to be canvassed alongside the more political campaign forindependence. Thus, the nationalist movement, at least in conception, had anostensible human rights agenda, although the more visible demand for independ-ence and self-rule tended to obscure other salient aspirations of the movement. In articulating their anti-colonial agenda, the urban-based African elites whochampioned the nationalist movement drew extensively on the language and idealsof the emerging international human rights movement. Central to this developmentwas the impact of the First World War allied propaganda that stressed the principleof self-determination and which in turn, provided the basis of the peace settlement,became a rallying point for the nationalist movement. This led to the developmentof some of the earliest political organisations such as the National Congress ofBritish West Africa (NCBWA). The NCBWA had as one of its demands, ‘theabolition of racial discrimination in social life’ and the separation of the executivefrom the judiciary to allow for more efficient administration of justice. Similarly,the Nigerian Youth Movement (NYM), which succeeded the NCBWA, advocated,among other things, universal adult suffrage, the protection of Nigerians againstunequal economic competition, the provision of better conditions of service and areformation of colonial judicial and administrative structures. On its part, theNigerian National Democratic Party (NNDP) which was to emerge as the mostinfluential nationalist group in the inter war period, campaigned for ‘the equal andfair treatment of the native population’ (Coleman 1986: 198). These rights based demands led to some reforms in the colonial judicial sys-2 It is recognised that long before the formal imposition of colonial rule at the beginning of the 19th century,certain forces and conditions favouring the emergence of nationalist ideas were already at work. For instance, theSokoto Jihad had led to the establishment of a Caliphate, which included much of what later became NorthernNigeria. By bringing together such a large area under one single political unit, the Jihad paved the way for theemergence of a greater Nigeria. See G.O. Olusanya, ‘The Nationalist Movement in Nigeria’ in Obaro Ikime (ed.),Groundwork of Nigerian History, Ibadan, 1980, p. 545.
Democracy & Development – Journal of West African Affairs 19tem in 1933. Central to these reforms was the extension of the principle of appealunder the colonial judicial system. This provided Nigerians with the right of appealagainst the decisions of the native courts – a right which hitherto was not grantedthe colonial subject.3 New high courts were created throughout the protectorate toreplace the existing native and provincial courts. The colonial high courts andmagistrate courts were also opened to legal practitioners who had previously beenbarred from appearing in these courts to represent their Nigerian clients. In additionto these, the West African Court of Appeal Ordinance was introduced in 1933,conferring the right to appeal in both criminal and civil cases heard by the SupremeCourt and the High Court, on the West African Court of Appeal. By these reforms,the wide and unchecked judicial powers hitherto enjoyed by colonial administrativeofficers were significantly curtailed. The 1933 judicial reforms, and particularly, the extension of the principle oflegal appeal, marked a significant development in the conditions of individual legalrights and liberties in the colonial era. It opened for the first time to Nigerians,regular legal avenues for the review of colonial administrative and judicial action.For the Nigerian elites in the nationalist movement and the press who had relent-lessly criticised the old colonial legal system for its inadequacies in protecting therights and liberties of the people, these reforms were welcome developments.Commenting on the reforms for instance, the Daily Times in an editorial, remarkedthat ‘the changes in the judicial system in Nigeria may be regarded as the greatcharter of liberty for the native peoples of this country, comparable to the MontaguReforms in India.’4 The Second World War served to strengthen the rights agenda of the nation-alist movement. As with the First World War, allied propaganda that the war wasbeing waged to preserve democracy and the right of the people to self-determination lent justification to the nationalist cause. The argument that colonialsubjects in Africa also had the right to determine their own political and economicdestinies began to feature prominently in nationalist discourse. Of particular rel-evance in this regard was the publication of the Atlantic Charter, (in many re-spects, the precursor to the Universal Declaration of Human Rights), and the sub-sequent public discussion that centred on its famous third clause which affirmed‘the right of all people to choose the form of government under which they willlive.’ In Nigeria and the rest of the colonised world, this affirmation of the AtlanticCharter greatly excited the hopes of nationalists. Prime Minister Churchill’s sub-sequent qualifications – that he and President Roosevelt had only European statesin mind; that the ‘Atlantic Charter is a guide not a rule’ and that he had not becomeprime minister to preside over the liquidation of the British empire – did little todampen the aspirations towards the rights of the colonised which the charter hadaroused (Coleman 1986: 232). If anything, Churchill’s rejection of the suggestion that the charter covered co-lonial peoples, served only to intensify nationalist indignation with colonial rule.Within the nationalist movement in Nigeria, his remarks were interpreted not only3 Section 25(1) of the proposed bill provided that any person aggrieved by the order or decision of a native court offirst instance may within 30 days of the date of such an order or decision appeal to native court of appeal or to thecourt of a magistrate.4 Daily Times, March 8, 1933.
20 Bonny Ibhawohas a betrayal of promise but also as a reaffirmation of imperialism and of the ‘whiteman’s burden’ concept of empire, at a time when world opinion was rapidly shift-ing towards a recognition of the universal right of people to self-determination.Arguments were subsequently made by leaders of the Nationalist movement likeNnamdi Azikiwe on the need for the movement to ‘prepare our own blueprint [ofrights] ourselves, instead of relying on others who are too busy preparing theirown’ (Azikiwe 1948: 72). In the Freedom Charter which was subsequently ad-opted in 1948, one of the early political organisations, the National Congress ofNigeria and the Cameroons (NCNC),5 cited Article 3 of the Atlantic Charter as thebasis of its campaign for self-government, proclaiming that the ‘tribes, nations andPeoples of Nigeria and the Cameroons (...) undertake, as of right, to arrogate tothemselves the status of an independent self-governing political community.’6Although this was not seriously intended to be an immediately operative declara-tion of independence, it expressed the aspiration towards a new rights agendawithin the nationalist movement. In spite of its successes in articulating a political framework for independenceand the promise of preparing its own ‘blueprint of rights’, the early nationalistmovement in Nigeria was beset with fundamental problems of relevance andlegitimacy that were to hinder the realisation of these aspirations. Two of theseproblems can be readily identified. The first derived from the elitist and conserva-tive character of the movement, or more appropriately, the leadership of themovement. Many of the early nationalist organisations lacked grassroots support.They were often urban-based (mainly in Lagos) and dominated by an emergentclass of educated African elites whose visions and aspirations did not alwaysreflect those of the vast majority of rural folks across the country. For instance, inspite of its claim to being ‘Nigerian’ and ‘national’, the Nigerian National Demo-cratic Party formed in 1923, remained throughout its history an exclusively Lagosorganisation.7 Its leaders, such as Herbert Macaulay, H.O. Davis, Nnamdi Azikiwe,Ernest Ikoli, and Kofo Abayomi, although committed nationalists, also representeda nascent group of urban-based and status-conscious educated political elites. The second point has to do with the conservative agenda of the nationalistmovement. The nationalist organisations – at least before the Second World War –did not seek to fundamentally challenge or change the structure of the colonialsystem. Many of the principal actors in the early nationalist movement were con-tent with reforming the colonial system to accommodate the immediate interests ofthe local elites. As C.O. Olusanya has argued, the first generation of Nigeriannationalists was essentially conservative in their approach. They did not questionthe goal of British policy in Nigeria per se, but only with specific policies andactions of the colonial administration. One of the aims of the Nigerian YouthMovement (NYM) for instance, was to maintain, even in its quest for colonialreforms, an attitude of ‘unswerving loyalty to His Majesty the King Emperor’(Olusanya 1980: 558). It has been suggested that rather than being seen as a limitation of individual5 Later to be known as the National Congress of Nigerian Citizens.6 My emphasis.7 Abortive attempts were made to establish branches of the NNDP in Abeokuta, Ibadan, and Kano in NorthernNigeria.
Democracy & Development – Journal of West African Affairs 21actors in the nationalist movement, the conservatism and passionate attachment toBritish rule which characterised the movement, was essentially a limitation whichall members of that generation possessed. Their ‘failure’ reflects ‘the failure oftheir time’.8 While this argument may explain and rationalise individual roles in themovement, it is important to note that this failure of the early nationalist movementwas a significant constraint on its ability to articulate a relevant and coherenthuman rights agenda that addressed the salient political and socio-economic issuesof the day. The NYM for instance, had by the mid-thirties begun to lose its rel-evance and popularity partly because it did not seem to react adequately to the newand pressing questions of the period, particularly the problem posed by the eco-nomic depression of the thirties. It is significant that apart from the broad demands for political and judicial re-forms of the colonial administrative structure, there were no specific demands forthe institution of a bill of rights or charter of liberties among the constitutionalreforms demanded by the nationalists. Indeed, it is ironic that the first concreteinitiative in the direction of instituting constitutionally guaranteed rights in Nigeria,came, not from the nationalist movement, but from an administrative commissionof inquiry set up by the colonial authorities on the eve of independence in 1957. The Willink Minorities Commission was set up to investigate the expressedfears of political and economic marginalisation of the minority communities inNigeria and advise the government as to what constitutional safeguards could beprovided for them. If no effective remedy could be found, the commission wasfurther mandated to consider the possibility of creating one or more states to as-suage the anxieties of the minorities.9 In the event, the commission rejected theidea of creating more states and recommended instead, the inclusion of a bill ofrights in the independence constitution. The Commission however did not pretendthat the inclusion of a bill of rights would solve the problem of minorities in re-spect of their fears of repression but it stated that the bill should be inserted be-cause ‘their presence defines beliefs, widespread among democratic countries andprovides a standard to which appeal may be made by those whose rights are in-fringed.’10Independence and the Promise of ConstitutionalismOne significant aspect of the post-independence political dispensation in Nigeriawas the formal introduction of guaranteed rights into the constitution. The bill ofrights included in the independence constitution of 1960 was based partly on theUniversal Declaration of Human Rights, partly on applicable English common lawprinciples inherited from the colonial legal system and partly on the recommenda-tions of the Willink Commission which recommended its inclusion in the constitu-tion (Aguda 1989: 117). Although political independence offered the first concrete step in the directionof the constitutional guarantees of fundamental rights and freedoms in Nigeria,there remained significant limitations on the protection of these constitutional8 Ibid.9 Minority Commission Report. Cmd. 505, p.97.10 Ibid.
22 Bonny Ibhawohrights in the new political dispensation. The new political leadership manifested thesame elitism and conservative character of the nationalist movement. Many restric-tive colonial laws and policies which limited the rights and liberties of the people,and against which the Nigerian political elites who championed the nationalistmovement had vigorously campaigned under the colonial dispensation, wereretained by the new regime. Some of these laws were the Official Secret Act of1962 and the Sedition Offences Act, which became a convenient tool with whichthe ruling regime sought to suppress opposition and dissent. In one famous instance, a prominent nationalist politician and renowned math-ematician, Chike Obi, was charged for publishing a pamphlet in which he criticisedthe corruption and intolerance of the ruling government of Abubakar TafawaBalewa.11 He was promptly arrested, tried, and convicted for sedition. His appealon the grounds that his fundamental rights to freedom of expression as enshrined inthe Nigerian constitution had been violated by the conviction, was dismissed by theChief Justice who ruled that the conviction ‘was reasonably justifiable in a demo-cratic society.’12 It was, however, the political crisis that engulfed parts of the country in 1962,which raised the most serious human rights concerns after independence. Specifi-cally, the state of emergency declared in the Western Region in 1962 following apolitical crisis, triggered a spate of human rights violations in the post-indepen-dence era. A minority government, in spite of public protestations, sat tight inpower sustaining its hold by widespread rigging of elections, the intimidation ofpolitical opponents, and the harassment of the press and the judiciary. As reminis-cent of colonial rule, coercive and repressive legislation were widely employed tosustain political control. Laws like the Emergency Powers (General) Regulations,the Emergency Powers (Requisition) Regulations and the Emergency Powers(Protected Places) Regulations of 1962, gave the police and other security agentsunlimited powers to summarily arrest and detain persons who were consideredthreats to public order and security. Thus, the inauguration of democratic constitutional rule and an indigenous rep-resentative government at independence did not necessarily usher in the anticipatedadvances in the general conditions of individual rights and liberties in the country.It is also significant that in spite of state violation of the human rights guarantees inthe Independence Constitution during the First Republic, there were no significantefforts at NGO campaign and advocacy against government’s excesses on a humanrights platform. This kind of NGO activism that was to later characterise the humanrights movement did not emerge until the worst period of military dictatorship inthe 1980s. Indeed, apart for the role of the radical students union movement under theauspices of the National Union of Nigerian Students (NUNS), the trade unionmovement, and the isolated individual efforts of some social critics, there was no11 What Chike Obi actually wrote in the offending booklet titled The People: Facts You Must Know, was actuallyno more than an innocuous tirade against the government. He has written among other things, ‘Down withenemies of the people, exploiters of the weak and oppressors of the poor (…) The days of those who have enrichedthemselves at the expense of the poor are numbered. The common man in Nigeria can today no longer be fooledby sweet talk at election time only to be exploited and treated like dirt after the booty office had been sharedamong the politicians.’ See DPP vs. Chike Obi (1961) 1 All Nigeria Law Report (ANLR), 186.12 Ibid.
Democracy & Development – Journal of West African Affairs 23coherent articulation at an organisational level, of a popular agenda for humanrights advocacy during the First Republic. One explanation for this may be that theNigerian elite as successors to the colonial throne were more preoccupied with thequest for political and economic ascendancy and less interested in raising criticalvoices over issues of rights, which went beyond their quest for dominance. Thismay also explain the development of vibrant political opposition parties like theAction Group, under the charismatic leadership of Obafemi Awolowo; the emer-gence of a radical trade union movement; the growth of influential professionalorganisations such as the Nigerian Bar Association and the Nigerian MedicalAssociation, but not a rights-based advocacy movement.The Challenge of MilitarismIn 1966, Nigeria witnessed its first military coup d’état. There was widespreadrelief with the military takeover of power and the overthrow of Nigeria’s crisis-ridden first republic. For one, the new military regime pledged a commitment topromoting fundamental rights and freedoms and as a demonstration of this, the newmilitary ruler General Aguyi Ironsi, within a few days of assuming office promul-gated the Circulation of Newspaper Decree. By the provisions of the decree, thevarious laws banning certain ‘opposition’ newspapers, which were enacted by theprevious civilian regime, were repealed and punishment was prescribed for inter-fering with the distribution and sale of any newspaper in Nigeria (Ojo 1987: 249). In spite of its initial pledge to guarantee fundamental rights however, the auth-oritarian and arbitrary character of the military regime was to have profound effectson the conditions of rights and liberties in the country, particularly with thecounter-coup of July 1966, which brought General Yakubu Gowan to power. Soonafter the first military intervention, a Constitution (Suspension and Modification)Decree, which effectively abrogated constitutional rule in the country, was prom-ulgated. With this decree, much of the powers separated under the preceding de-mocratic constitutional dispensation between the various arms of government – thelegislature, the judiciary and the executive – were vested in one body of militaryofficers known as the Supreme Military Council, headed by the military head ofstate. Even with these developments, it was generally assumed that the fundamentalconstitutional principles, on which the nation was founded at independence, werestill operative. The first major test of this assumption came in a case in which acitizen challenged as unconstitutional, the Forfeiture of Assets Validation Decreemade by the military regime in 1968. After the case had dragged on in the lowercourts, the Supreme Court in a landmark decision annulled the decree. The courtruled that by making a law, which arrogated to it, absolute powers to confiscateprivate property, the military regime had engaged in an act of ‘legislative judg-ment’ which was contrary to the principle of fair hearing. Barely two weeks after this ruling was made in 1970, the Supreme MilitaryCouncil sought to counter it by issuing the Federal Military Government (Sup-remacy and Enforcement of Powers) Decree No. 28 of 1970. The new decreeasserted the absolute supremacy of military decrees over any other laws or judicialdecisions in the country’s legal system. The decree stated that the military ‘revolu-
24 Bonny Ibhawohtion’, which took place in 1966, abrogated the whole pre-existing constitutionalorder in Nigeria with the exception of what had been preserved by the militaryregime under the Constitution (Suspension and Modification) Decree of 1966. Itadded that ‘each military revolution involved an abrupt political change which [is]not within the contemplation of the constitution of the federation.’13 In effect, thedecree declared null and void, any decisions made by the courts in exercise of anypowers under the constitution, which challenged the validity of a decree of themilitary regime. Thus, the military regime having suspended the constitution, chosewhat to obey of what was left, and made what was left of the constitution subject todecrees issued subsequently (Ajomo and Okagbue 1991). This decree effectivelyushered in a super-state under the military. The outbreak of the Nigerian civil war in 1968 provided further excuse for theintroduction of more repressive laws by the military regime. The rights to fairhearing, free movement and personal liberty hitherto guaranteed in the operationalparts of the ‘suspended and modified’ constitution were now further limited bysuch war-time laws as the Armed Forces and Police (Special Powers) Decree14which conferred special powers on the Inspector General of Police or the Chief ofStaff of the Armed Forces to detain any person, if satisfied that such a person ‘is orrecently has been concerned in acts prejudicial to public order.’15 The decree alsoconferred special powers on the police or members of the Armed Forces to arrestany person without warrant or to enter any premises, search and seize prohibitedgoods such as explosives, ammunition and firearms. In practice, these laws becamegrounds for widespread arbitrary arrests and detentions. Throughout this phase of military dictatorship between 1966 and 1979, therewere no significant organisational platforms for the articulation of the salienthuman rights issues of the period. The nationalist groups which had advancedhuman rights causes in the colonial era and which developed into political partiesat independence, were all proscribed with the military intervention of 1966. Humanrights activism was therefore limited to the individual efforts of a few social criticslike the radical lawyer Gani Fawehimi; the musician Fela Anikulapo-Kuti; WoleSoyinka, a university professor; Olu Onagoruwa, a constitutional lawyer, and TaiSolarin, a school teacher. Even then, their efforts were presented and perceivedmore as issues of social justice rather than human rights issues per se. For instance,in 1972, when a journalist was publicly assaulted and brutalised on the orders of amilitary governor, it was left to vocal advocates of social justice like Gani Fawe-hinmi to champion the case and to do their best to defend other citizens so slightedby military power.16 In another prominent incident, soldiers attacked and assaulted the popular mu-sician, Fela Kuti and burnt down his residence, after he had released a song that13 Quoted in Kayode Eso, ‘Nigerian Grundnorm’, Idigbe Memorial Lecture, (Lagos, 1986).14 Ibid.15 See Chapter 62, Sections 166, 167, 218(1)(2), 219(1) and (2), for example.16 The journalist, Minere Amakiri, reportedly had his hair shaved with broken bottles and given 24 strokes of thecane on his bare back in Port-Harcourt, Rivers State, for writing a story that was considered unpleasant to the stategovernor, Alfred Diette-Spiff. Amakiri had reported in his newspaper that teachers in Rivers State had contem-plated resigning en masse in protest against their poor conditions of service. His offence in so publishing was thatthe report of the proposed teachers’ strike was put out on the Military Governor’s birthday. The case eventuallywent to court and the journalist was awarded punitive damages against the Military Governor’s ADC. See the caseof Amakiri vs. Iwowari, 1972 (unreported).
Democracy & Development – Journal of West African Affairs 25ridiculed Nigerian soldiers as mindless zombies. Although it was common know-ledge that the attack was ordered by top officers in the military, a commission ofenquiry set up to investigate the incident concluded that the assault had been car-ried out by ‘unknown soldiers’. Eventually, no redress was offered to the musicianwhose property was subsequently forcibly acquired by the government. In spite ofthe unprecedented and extensive public outcry which this and similar incidents ofhuman rights violation generated, active condemnation and opposition to the gov-ernment – on the human rights front – took no organised form and were limited tothe individual efforts of a few social critics and uncoordinated public protestations.Human Rights in the Second RepublicThe re-establishment of democratic civilian rule in October 1979 after a decade ofmilitary dictatorship ushered in a new era of constitutionalism in Nigerian. As inthe First Republic, the hand over of power by the military regime under the newdemocratic dispensation was backed by a presidential constitution, which restoredfull constitutional rule and made elaborate constitutional provisions for the protec-tion of fundamental human rights. One of the unique features of the human rights provisions of the 1979 constitu-tion however, was that unlike the Independence Constitution of 1960 and therepublican version of 1963, the language appeared much more positive, therebygiving the impression of a ‘bill of rights’ rather than a ‘bill of exceptions’. Forinstance, where the independence constitution provided that ‘No person shall bedeprived intentionally of his life...,’17 the 1979 constitution positively affirms that‘Every person has a right to life.’18 Another feature of the fundamental humanrights provisions in the 1979 constitution was that its provisions were more com-prehensive, especially those relating to the scope of individual liberties. The inclu-sion of the right to legal aid was also innovative although in practice, the constitu-tional provision for legal aid did little in actually redressing the problems associ-ated with the administration of justice in the country (Nwankwo et al. 1996). What marked the most significant advance recorded in human rights promo-tion and the rule of law during this era of constitutional rule was the activism of theNigerian judiciary. The judiciary was particularly active in protecting both theabsolute and qualified rights guaranteed in the 1979 Constitution. In various land-mark judicial decisions, the courts upheld the sanctity of the constitutional protec-tion of fundamental human rights. Notable among such decisions was the cele-brated case of the malicious and politically motivated deportation of a legislator inthe Borno State House of Assembly, Shugaba Abdulrahman Darman. In that case,Shugaba Darman, a member of an opposition political party, was summarily de-ported from the country by the ruling government on the allegation that he was nota Nigerian. It was subsequently ruled by the court that the summary deportationconstituted a violation of the right to fair hearing, even if, as it was alleged, theperson involved was a security risk to the state.17 Section 18 of the Constitution of the Federal Republic of Nigeria, 1963.18 Section 32 of the Constitution of the Federal Republic of Nigeria, 1979.
26 Bonny Ibhawoh Another example of the judicial activism which characterised the human rightscondition in the country during this period was the case of Tony Momoh vs. Senateof the National Assembly in which the applicant, an editor of the Daily Times,published a story in the newspaper about national legislators ‘begging’ for gov-ernment contracts. The aggrieved senators subsequently passed a resolution invit-ing the applicant to give details of the impropriety alleged in the newspaper article.The applicant sought an order of the court to restrain the senate from compellinghim to appear and disclose his source of information on the grounds that it wouldconstitute a breach of the guarantees of freedom of expression and the press underthe constitution. In its judgement, the court held that a newspaper editor is protected and enjoysthe immunity of non-disclosure of the source of his information, particularly ifpublic interest so demands. The Court took the view that the Constitution protectsany medium for the dissemination of information, ideas, and opinion and that thiswould include a newspaper publications. Any attempt to force a person such as theapplicant (Tony Momoh) who disseminates through the medium of a newspaper, todisclose the source of his information, apparently given in confidence, would be aninterference with the freedom of expression granted by the 1979 Constitution.19 Comparatively therefore, the Second Republic, at least in terms of the role ofthe judiciary, ushered in significant advances in the conditions of human rights inthe country. The ruling National Party of Nigeria (NPN) often prided itself on thefact that throughout the four-year term of the Shehu Shagari-led NPN government,there were no political prisoners or ‘prisoners of conscience’ in the country – arecord which, it was further claimed, was matched by few African countries. Thesegains in human rights were to mark a sharp contrast with subsequent politicaldevelopments in the country following the re-intervention of the military in 1983.Return to MilitarismThe military coup which toppled the Second Republic was a direct affront onconstitutional rule. The military takeover of government contravened the expressprovisions of Section 1(2) of the 1979 constitution which provided that ‘the FederalRepublic of Nigeria shall not be governed, nor shall any person or group of personstake control of the Government of Nigeria or any part thereof, except in accordancewith the provisions of this constitution.20 On the face of it therefore, the 1983 coupwas a violation of the constitution, although it has been argued by several apolo-gists of military rule that the coup d’etat of 1983 was in many respects, redemptive.It is suggested that the corruption and mismanagement of national resources thatcharacterised the Second Republic, threatened the stability of the country and madethe military intervention of 1983 timely and inevitable (Oyovbaire and Olagunju1992: 10). In specific relation to human rights, the return of the military to governancemarked a new phase in the human rights situation in Nigeria. By the Constitution(Suspension and Modification) Decree No. 1 of 1984, some fundamental rights19 See Tony Momoh vs. Senate of the National Assembly, (1981) 1 Nigeria Constitutional Law Report (NCLR), p.105.20 See Constitution of the Federal Republic of Nigeria, 1979.
Democracy & Development – Journal of West African Affairs 27guaranteed in the 1979 presidential constitution were either suspended or modified.For instance, the restricted definition of ‘period of emergency’ in section 41 of thebill of rights dealing with restrictions on and derogation from fundamental rightswas suspended. Left intact though were the constitutional guarantees of such basicrights as the right to life, the right to dignity of the human person, and the right tofreedom of thought, conscience and religion. In pursuit of its declared agenda of ‘sanitizing the nation’, the military regimeled by Muhammadu Buhari, further introduced such repressive laws as the StateSecurity (Detention of Persons) Decree No. 2 and the Recovery of Public Property(Special Military Tribunals) Decree No 3 which established special tribunals forthe trial of former public officers suspected of wrong doing. The wide and arbitraryuse of these decrees and tribunals by the military regime spelt adverse implicationsfor human rights conditions in Nigeria in the period between 1983 and 1985 – aperiod which saw the complete militarisation of national administration. The mili-tary regime showed preference for the use of ad hoc tribunals, rather than theregular courts, for trying a large number of offences created by its decrees. ThePublic Officers (Protection against False Accusation) Decree,21 The ExchangeControl (Anti Sabotage) Decree,22 and The Robbery and Firearms (Special Provi-sions) Decree,23 all provided for the trial of offences created by them, by tribunalsspecially created for the purpose. The operations of these decrees and tribunals,which were not subject to appeal in the regular courts, constituted a flagrant con-travention of some of the fundamental rights and freedoms guaranteed in the 1979constitution. By including ‘ouster clauses’ in many of its laws, the military regime barredthe courts from questioning the validity of a federal government decree or stategovernment edict. This also precluded the courts from inquiring into the validity ofadministrative and executive actions done pursuant to such a decree or edict (Alabi1993: 206). For instance, Section 12(6) of the Recovery of Public Property (SpecialMilitary Tribunal) Decree provided categorically that ‘no appeal shall lie from adecision of any tribunal under the decree,’ thus putting a limit on the constitutionalright of appeal to the highest courts of the land. Subsequent decrees issued by the military regime continued to negate the con-stitutional and republican aspirations of the country. One notorious example of thiswas the Public Officers (Protection Against False Accusation) Decree of 1984. Bythe terms of the decree, it became an offence for anybody to publish any statement,whether ‘true or false’, which brings a public officer – meaning any member of themilitary administration – into disrepute. The offence was punishable by two years’imprisonment without option of fine.24 Two journalists were subsequently sen-tenced to jail for contravening this decree over the publication of an apparentlyinnocuous news report about the government’s diplomatic postings. Perhaps the most obnoxious manifestation of human rights abuse through arbi-trary legislation during the Buhari regime came with the enactment of the SpecialTribunal (Miscellaneous Offences) Decree, No. 20 of 1984. Among a battery of21 No. 4 of 1984, Sec. 3.22 No. 7 of 1984, Sec. 4.23 No. 5 of 1984, Sec. 6.24 See Section (1), Public Officers (Protection Against False Publications) Decree No. 4 of 1984.
28 Bonny Ibhawohother offences, the decree made it punishable with death by firing squad, for anyperson without lawful authority to import, export, sell, offer for sale, distribute orotherwise deal with any crude oil or petroleum product in Nigeria.’ The decree alsoprovided for the execution by firing squad, for any person who without lawfulauthority deals in hard drugs. Under this decree, drug related offences attractedretroactive punishment and three drug-related offenders were subsequently publiclyexecuted by firing squad. Expectedly, the wave of public opinion towards these decrees was one of re-sentment and disapproval. In one of the many demonstrations of opposition to thearbitrary use of decrees and tribunals by the Buhari military regime, the NigerianBar Association in 1984 took the official stand to boycott proceedings of the tribu-nal constituted under the Recovery of Public Property (Special Military Tribunal)Decree No. 3 of 1984. The Nigerian Labor Congress (NLC), the Nigerian MedicalAssociation (NMA), and other professional associations also similarly expressedopposition to the use of repressive decrees by the regime. In all, under the Buhari regime, Nigerians found themselves under an authori-tarian military regime whose absolute rulership was unprecedented and left noroom for redress. The arbitrary use of decrees and edicts as state legislative instru-ments under this era of military rule strengthened the combination of absoluteexecutive and legislative powers under which the usurpation of judicial powers wasa matter of course. It was under these tense and repressive circumstances thatanother military coup toppled the Buhari regime in 1985, setting the stage for anew phase of military dictatorship and an era of increased human rights conscious-ness and activism in the country.Structural Adjustment, Military Authoritarianism and HumanRightsOn assuming power after a palace coup in 1985, the new military ruler, IbrahimBabangida, announced that his government would be anchored on respect for thefundamental human rights of all Nigerians. He vowed that he would not presideover a country where individuals are under the fear of expressing themselves andpromised that his government would be open and transparent. As part of the newcrusade for human rights, some of the repressive decrees promulgated by theousted Buhari regime were immediately repealed. One of these was the notoriousDecree No. 4 of 1984, under which two journalists, Nduka Irabor and TundeThompson, had been detained. As a further demonstration of its commitment topromote human rights and the rule of law, the Babangida regime reviewed thecases of several Nigerian politicians who had been convicted by military tribunalsset up by the Buhari regime to investigate their conduct in government (Agbese1994: 147-148). These measures won the Babangida regime instant legitimacy. Rather than thelimitation of the right to free expression, which characterised the preceding Buhariregime, the Babangida government pledged to allow Nigerians to openly debatemajor national and political issues. Within weeks of the coup d’etat which broughthim to power, Babangida inaugurated a nation-wide ‘IMF debate’ as a popularoutlet for discussing in particular, the impasse over Nigeria’s negotiations with the
Democracy & Development – Journal of West African Affairs 29International Monetary Fund over a $2.5 billion loan and in general, the nation’seconomic future. The apparent aim of the debates was to empower the ordinaryNigerian and make him feel a sense of involvement in the governance of the coun-try. The debates, which were extensively conducted in the press and other publicforums, conveyed an unmistakable public antipathy and rejection of IMF andWorld Bank conditionalities. In apparent deference to public opinion, Babangidapublicly repudiated the IMF and declared that Nigeria would, instead, opt for a‘home grown’ solution to her economic difficulties (Olukoshi 1991). However, lessthan a month later, the president unveiled an economic package including thederegulation of the exchange rate, higher agricultural prices, financial liberalisa-tion, and partial privatisation. Although this package was presented as ‘homegrown’, it was actually negotiated with World Bank officials and was premisedupon supplementary finance from the Bank (Mosely 1992). One year later, a fullStructural Adjustment Programme (SAP) was introduced which elaborated andextended earlier adjustment reforms. In 1989, when the full inflationary effect of devaluation and de-subsidisationbecame more evident in the rising cost of living, public restiveness over SAPerupted. ‘SAP riots’ engulfed universities and major cities across the country. Theoverwhelming public opposition to Babangida’s economic reforms was followedby a dramatic change in the declared policy of the regime towards human rights.After the brief period of tolerance and flirtation with respect for human rights, theBabangida regime resorted to overt repression involving extensive police action,the ban of newspapers and popular trade unions, and the arbitrary arrests of per-ceived opponents of the regime’s economic policy, to stem the tide of anti-SAPprotestations. Many of the repressive laws enacted by the Buhari regime which hadearlier been repealed to win the regime some legitimacy, were replaced by new andeven more repressive decrees that provided the regime with even wider powers ofdetention. The notorious Nigerian Security Organization (NSO) which had beenscrapped as part of the regime’s human rights promotion initiative was replaced byan even more obnoxious organisation – the State Security Service (SSS). In its bid to assert control over an increasingly restive and dissatisfied civilpopulation, the Babangida administration, by a special decree in 1986, excised theAcademic Staff Union of Universities (ASUU) and other senior staff associations,from membership of the Nigerian Labor Congress (NLC). The regime also bannedstudents’ unions in all institutions of higher learning in Nigeria. The peak of theBabangida regime’s deteriorating human rights record came in 1987 with theproscription of the Newswatch magazine. The regime explained that Newswatchillegally obtained and published the report of the Political Bureau, which was beingstudied by government. As punishment for this ‘illegality’, the magazine wasbanned for six months. A special decree was subsequently promulgated, withretrospective effect, to confer the necessary legality on the ban.25 These developments, coupled with the post-cold war resurgence of humanrights in the international political agenda, led to increased domestic and interna-tional concern for the human rights conditions in the country. The crippling eco-25 Ibid. p. 205.