By Bamidele Aturu
Professor Omorogbe’s paper is a stimulating dissection of the plundering of the resources of the country by its ruling elite. Her central argument that Nigeria must be ‘founded and established on the rule of law, with the law operating and performing its role as the framework for ensuring order in society’ is cogently and masterly argued.
Without any iota of doubt she has contributed significantly to our understanding of the crisis of development or under-development in which we are doubtless enmeshed. While one may not agree with her perspective, it is difficult not to notice that her contribution is underwritten by patriotic scholarship and a rare passion and commitment to change.
She exploded, for example, with concrete statistics the idiocy that confuses growth with development. One has used the word ‘idiocy’ advisedly as the strand or brand of economics that engages in that confusion has been long discredited and discarded. As she poignantly argued ‘Economic growth is concerned with aggregated figures, whilst development is concerned with discernible and measurable impacts of monies that have entered the state on as much of the population as possible’.
Although she controversially began by stating that she was not interested in criticizing any government, she ended up rightly counseling us to ‘disregard the cheery news and figures that are regularly spewed out by the Coordinating Minister of the Economy’. Her position that we are still far from the true path of meaningful growth from all available evidence is unanswerable, except by those who deal in statistical concoctions and fairyland economics.
In spite of the brilliance of her arguments, there are a number of issues that she threw up that deserve further probing. First, her perspective that we are poor because we are all transgressors and that we are all transgressors because we are all leaders at one level or the other is at once problematic and unnecessarily syllogistic. The main premise, even by her admission, is that we are all leaders.
The other premises are: All Nigerian leaders are transgressors, so we are all transgressors. One does not have to be a dialectician to know that every phenomenon has essential and non-essential attributes or elements. When one is discussing the crisis of leadership or of development in a country it is helpful to identify the layer of leadership that bears ultimate and essential responsibility for the crisis one is focusing on otherwise one ends up blaming the victims for the state of their victimization, an obviously unpardonable error.
If one is discussing the failure or failings of family for example, it might be wise to go microscopic and finger the father or mother or even go nanoscopic and examine the role of brothers, sisters et cetera as leaders in society. But when we are dealing with failure on the macroscopic level of the state, there is a sense in which one might be fairly accused of trivializing the subject if one holds responsible the messenger whose entitlement to a minimum wage of N18000 is still being contested by some Governors for the economic woes of the country.
We need to focus more on those layers that bear ultimate responsibility for the acts of omission and commission that have virtually grounded our country. Even in terms of magnitude, the devastation wrought by corruption in high places cannot be seriously compared with the indiscretions, here and there, of the lower rungs.
The danger really is that when we conclude that all are responsible for the troubles of the country, then the real culprits escape punishment and because they are not punished the culture of impunity which our lecturer so detests, and rightly too, is entrenched. Although somewhere in the paper she makes allowance for a few Nigerians who are exempted from the rot, her main thesis robs the exemption of any weight.
Second, her reliance on the rule of law as a solution for the crisis seems, with the greatest respect, to ignore the instrumentalist function of the law in class-divided states. Hence her assertion that ‘In a nutshell, the rule of law operates [ to enable] the operation of the social contract between the people and the state, and is simply about ensuring the existence of a society with laws that protect and enhance the quality and security of life of the people, which are to be administered and implemented justly, impartially, and without fear or favour.
Every person is subject to the law, irrespective of rank or status in society, and one law exists for the same classes and types of people under the same circumstances’ does not fit our understanding of the function of the law in states such as ours. The concept of the rule of law has to be rigorously examined for there are all kinds of law; there are just and unjust laws; bad and good laws.
We cannot reach a conclusion that a law is just or unjust, good or bad without entering the realms of politics and philosophy. This then compels an analysis of the social forces and processes that produce or make laws. The lecture might have left all this out due to constraints of time and space, but it is an unavoidable analysis if we are not to engage in sterile discussion.
Fundamentally, we conceive the law as the instrument of the ruling class to perpetuate the exploitation of the masses. There is a passage in Poggi’s The Development of the Modern State that corroborates this view. In describing the liberal state he made the point that it was ‘constructed to favour and sustain through its acts of rule the class domination of the bourgeoisie over the society as a whole’ and that ‘the equality of all individuals before the law made sense as a constitutional principle because as a matter of course the legal protection of private property directed the order-keeping, law enforcement, and repressive activities of police and courts to favour the interests of the propertied groups’
Our lecturer’s perspective of the rule of law does not pose or answer the questions: Which class formulates the laws? What are the interests protected by the laws?; This definition which presents the rule of law as benefitting the whole society and which does not indicate the specific interest(s) which it serves, contradicts our knowledge or position that society is made up of different interests and classes.
If we proceed from the premise that the Nigerian society is made up of different classes, as I do, then one can easily appreciate that the Nigerian state does not exist and can possibly not exist to protect the interest of all the classes of Nigerians. In other words, the law fashioned by the Nigerian state is the instrument of the dominant class, the propertied class, for the protection of the interests of that class and necessary subjugation of the interests of the working class. The analytical task before us is to clarify the linkages between the class basis of society and social domination generally.
Rule of law is therefore rule of a specific class in a specific kind of state. The character of the dominant class is reflected in its preferred accumulation mode and in its law. We therefore need to do more than what dependencists do namely to characterize the Nigerian state as a dependent neo-colonial state. I think that the Nigerian state is a rogue state, not in the sense of the original formulation of the term by American statesmen.
Although the term or concept of rogue states can be labeled by leftist scholars and critics as an imperialist coinage since those who popularized its usage were leaders of the United States of America and other developed capitalist societies, the content that we give to the concept or term is radically different from the conception of the said leaders.
A doubtless pro-American characterization of rogue states offers that to be classified as a rogue state, ‘a state had to commit four transgressions: pursue weapons of mass destruction, support terrorism, severely abuse its own citizens, and stridently criticize the United States’. Rogue states are generally seen not to behave rationally or act in their own best interests. Unfortunately, William Blum, who combatively, but with compelling examples, depicts the United States of America as a rogue state did not offer his definition of a rogue state.
We conceive a rogue state as one in which survival or accumulation takes place and is sustained not by production but by a system of stealing without any form of pretence and where those who control the institutions of state privatize them for the purpose of protecting the system of stealing. I doubt if any serious and decent observer or student of the debauchery that takes place in Nigeria in the name of governance would contest that Nigeria at the moment fits this definition.
We may as well add that stealing is not used here in the Nigerian generic sense of describing the fat allowances that officials (legislative, executive and judicial) award or rather allocate to themselves or the venal and ‘normal’ kickbacks and bribes received from contractors but the barefaced taking of unearned public funds from the treasury by public officials for personal use just like that.
Corruption and the culture of waste
If we apply the rule of law as a solution to corruption without examining the social forces and processes that produce laws, we are likely to run into some problems. Let us look at the most recent of the scandals, the purchase of N255 Million bullet-proof cars by the NCAA for the Honourable Minister of Aviation, Madam Oduah.
Let us assume that the purchase was captured in the budget, the Appropriation Act, let us assume that there was no inflation or over-invoicing involved, let us assume that she needs more protection than other ordinary Nigerians that section 16 of the Constitution obligates the state to secure, in that case the rule of law has been complied with. But that kind of rule of law contributes to corruption and the pervasive culture of waste.
Let us take a look at the way the rogue state fights corruption. Those who steal billions of Naira whether as Governors or pension reformers are arrested and prosecuted with the attendant razzmatazz in the media. They plead not guilty and are remanded in prison custody; then they hire a battery of lawyers (there is a huge war chest as it were to hire anyone available for hiring) who apply for bail; under our rule of law the offence of official corruption is bailable; after bail the lawyers bring as many frivolous applications as possible for adjournments, to quash the charge etc, the trial goes on interminably until the suspect becomes a Senator or dies in the process or even disappears.
Again, we have not breached the rule of law. The question then is what kind of rule of law is this. Certainly this could not have been contemplated by Dicey and his disciples as they did not write about rogue states. The reproductive logic of a rogue State is clear: the more roguish you are the higher you go. After all, it is a rogue state anyway.
One of the most creative ways the public is fleeced in our ‘rogue republic’ is through the conduit known as Security Votes. Heads of governments at all levels and tiers have appropriated to their offices huge sums of money as security votes. These moneys are spent, as you probably know, not on security or at least not on public security, but to fund party thugs, girlfriends and for the private security of the heads of governments. Now the stealing is that, according to the roguish logic, security votes are never to be accounted for.
They are not audited. It is only in a rogue state that moneys appropriated by the legislature can be spent anyhow, again, just like that. We have challenged the nitwits who peddle this nonsense to show us one law that states that security votes cannot be audited. They have not been able to show us one, but of course one cannot be surprised if they have manufactured one for the purpose of rule of law.
Of course, in a rogue state the only law that matters is that which protects the institution of stealing. We see then that all our Governors and anyone who subscribes to unaudited security votes are part of the racketeers tearing the moral fabrics of our society apart.
Yet in spite of huge trillions of Naira stolen under the guise of providing security for the people and the emergence of all sorts of funny security contractors, Nigeria has become one of the most insecure countries in the world. This insecurity and the utter incompetence of the security apparatuses to contain regional and ethnic insurgencies is what some analysts have in mind when they regard the Nigerian State as either a failing or a failed State. But we need not quarrel over terminologies. It is a matter of time. A rogue state ultimately becomes a failed State, and most states failed precisely because they became roguish.
Making the rogue state fail: Imperative of Political Organising
Conscious citizens certainly cannot wail over the failure of a rogue state. Indeed, it is the duty of all such citizens to do all they can to accelerate the failure of a rogue state. The point, we believe, has been sufficiently made that the rogue state cannot be brought to its knees through moral suasion or preachments. The state is a political tool; it can only be negated and replaced by political means.
Based on the foregoing premise, there is no alternative to political organizing as the sound strategy for uprooting the existing rogue state in Nigeria. But what exactly is political organizing? It is the critical creation of platforms and forums in society in general to change the way we relate with one another and with the existing institutions of the state with a view to democratizing them.
This would be the emergence of the real civil society as opposed to the uncivil and coopted and state-created society that constitutes part of the hegemonic structure of the existing state.
The first element of the new civil society is the attitude of ownership, ownership of our lives and of the resources within our geographical location. Of course, attitudinal change must be predicated upon the existence of a conscious cell of committed change-agents; for there is no such thing as automatic consciousness.
People may be dissatisfied with their conditions and may even be willing to act to change those conditions. They stand no chance unless they act consciously. Those who are sufficiently incensed at the comprehensive degradation of lives and humanity by the rogue state must step forward and volunteer to help create the Change Cells.
The cells must be established in our schools, public institutions, professional organisations, political parties, market associations, security organisations and among peasants.
When people become conscious that they own all except the lives of others, they would readily do everything to resist the privatization of social life. Governors will not be able to spend public funds without accounting for them. Even Vice-Chancellors will conduct the affairs of their institutions openly and transparently.
It is this critical culture that can lead to the ultimate weakening, removal and replacement of those who control political power by means of exclusive access to and monopoly of the resources that belong to all. While in the process, legal reforms will be forced in many areas of life, it must be understood that legal reforms without more cannot destroy the rogue state.
Many of the existing political parties cannot survive the political awakening that we have in mind. At the moment they are led by political entrepreneurs who see politics and governance as their main investments. These overlords cannot survive in the new atmosphere of democratic culture that we envisage.
There is therefore the need for an existing Vanguard Party of the People. How the party will emerge is a question that can only be resolved in the crucible of the struggle by the Cells empowered by the new democratic attitude and imbued by the loftiest ideal of inclusiveness and equity.
It cannot be decided upon the fancy of anyone, and certainly not on the basis of sterile academic treatises. What is clear is that without a Vanguard Party, the rogue state cannot be defeated. Some wily members of the ruling class may create the impression that they are different from those who directly run governments today at different levels, but the truth is that these people are essentially one and the same.
They are united in the way and manner they exclude the people from the use of the country’s resources. They are united in their vision of Nigeria, the vision of privatization of our lives and resources. This is why they must all be resisted politically.
We must thank Professor Omorogbe for her immense efforts, in particular for her inimitable elucidation of such issues as resource curse, for her passion and for supplying the statistics that show how backward we are and for her suggestions on the way forward.
I adopt the arguments proffered by Claude Ake in Revolutionary Pressures in Africa
, Zed Press, London, 1978. He concluded that ‘class refers to relation to the means of production and that class membership is decided in terms of ownership or non- ownership of the means of production-p.59; see also Oladipo Fashina, ‘Labour and Politics- the Challenges of Social Transformation of Nigeria, FES, 2009 for a detailed theoretical and practical discussion of the theory of classes in Nigeria.
William Blum, Rogue State: A Guide to the World’s Only Superpower, New Updated Edition, Spearhead, South Africa, 2002
In the case of…I challenged the counsel to …provide the law that supports the contention that security votes are not subject to audit. I was not obliged. The court had no choice but vacate the earlier order that Mr Ibori should not be prosecuted by the EFCC. Although, his eventual trial ended in a fiasco, the vacation of the order was the basis for his arrest and prosecution. Complicit judicial injunctions forbidding arrest of corrupt suspects did not start with Odili or Maina