Keeping Power In Check: Media, Justice And The Rule Of Law

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By  NSIKAK SOLOMON IDIONG

 

 

 

 

 

 

Being  the text of a public lecture delivered as part of activities to mark World Press Freedom Day, organized by the Nigeria Union of Journalists, Akwa Ibom state, on Friday May 4, 2018, at the NUJ Press Centre, Information Drive, Uyo.

 

 

 

 

Introduction

 

 

 

In a recent survey that assessed the extent to which government officials around the world are deemed to be law-abiding, Nigeria was ranked in the zero to 10th percentile, the lowest rung of the index (The World Bank, 2018). By comparison, Botswana, Namibia  and even Burkina Faso!  were ranked much higher than the proverbial giant of Africa. Smaller in every respect than the Lugardian behemoth that was (mis)conceived in 1914, these three countries, along with many others in Africa, were ranked in the 50 to 75th percentile.

 

 

 

 

The results of that study should hardly surprise us, living as we do in a country where the Federal Government selects which court judgements to obey and which to ignore; a country where a member of the opposition party can be incarcerated ad infinitum in the name of an anti-corruption war  incarcerated, mind you, in spite of several court  rulings mandating his release; and a country where the executive arm of  government can unilaterally appropriate billions of naira to purchase armaments without the consent of the National Assembly, the independent and co-equal arm of government mandated by law to approve or disapprove any and all governmental appropriations.

 

 

 

 

Nigeria is a country that defies explanation. Its system of government is at once clearly defined and incomprehensible. This, after all, is perhaps one of the few democracies in the world where vehicle drivers are expected to fly off the road (into bushes and sidewalks presumably) at the distant approach of a government officials convoy or risk being manhandled by the horsewhip-bearing security detail attached to the potentate ensconced in the dim-glassed interior of the SUVs bought and maintained with taxpayer funds. Need I also mention that ours is possibly the only democracy where a member of parliament can organise the broad-daylight snatching of parliaments symbol of authority, its mace, and be rewarded a few days later with an appointment into the ruling partys convention planning committee? I could go on and on, but the picture is clear: Ours is a country where membership of the political class, where admission into the moneyed oligarchy, seems to convey on the privileged initiate the freedom to flout laws with impunity  in short, the ability to live above the law.

 

 

 

 

Am I suggesting, by any means, that the rule of law does not exist in Nigeria? Not at all! I am only making the point that in Nigeria the rule of law operates in different ways for different people. If unfortunately you are a socio-cultural group, perhaps an ethnically constituted association, agitating for independence from the Nigerian commonwealth, then you are liable to be proscribed as a terrorist organisation. But if you belong to the 97 per cent who voted the right way, you may embark on a campaign of mass murder and engage in acts of genocidal wantonness and your patrons in power will coo at your misdemeanours and advise your victims to accommodate you as brothers.

 

 

 

 

Better still, your excesses will be blamed on itinerant malcontents bred and released into the Sahel like blood-sucking vampires by the late Muammar Gaddafi. So the point is not that the rule of law does not exist in Nigeria; the point is that the rule of law that currently emanates from the gilded corridors of Aso Rock and from many of our state houses is not the rule of law envisaged by the drafters of the Constitution of the Federal Republic of Nigeria nor is it the one popularised by the eminent British jurist A. V. Dicey, to whom the contemporary concept of rule of law is often attributed.

 

 

 

 

So, before we proceed, it may be useful, judging by the topic of this discourse, to remind ourselves of what the rule of law and its related concept, justice, truly mean. By so doing, we will perhaps be able to articulate the role of the press in sustaining these ideals.

 

 

 

 

The Rule of Law Defined

 

The basic premise on which the rule of law is based dates back to antiquity. The ancient Greek philosopher Aristotle recognised the principle, if not the phrase that all citizens should be governed by law (Bingham, 2010, p. 3). Simply stated, the rule implies that every person is subject to the law, including, perhaps rather counter-intuitively for us in Nigeria, those in power, those who make laws, those who enforce those laws, and those whose duty it is to interpret those laws. I say counter-intuitively because Nigerian common sense would seem to suggest that when one has gained accession to high elective or appointive public office, one has attained near-deification, a formal authorisation to enjoy all the exclusive appanages concomitant with such an apotheosis.

 

 

But that seems completely antithetical to the spirit and intent of the rule of law. Where the rule of truly law exists, the ordinary law of the land is deemed supreme over all citizens, no matter how powerful such citizens may be. As expounded by Professor A. V. Dicey, the rule of law is based on three principles, namely:

 

 

 

i. legal duties, and liability to punishment, of all citizens, are determined by the ordinary law and not by any arbitrary official fiat. In other words, the country is governed by established law, not by the caprices of the president, no matter how much personal integrity or Spartan discipline the president purportedly possesses;

 

 

 

ii. disputes between citizens and government officials are to be determined by the ordinary courts applying ordinary law; and

 

 

 

iii. the fundamental rights of citizens, such as freedom of the person, freedom of association, and freedom of speech, are rooted in the natural law and are not dependent on any abstract constitutional concept, declaration or guarantee (Martin and Law, 2016).

 

 

 

 

A government based on the rule of law is referred to as a nomocracy, a term derived from the Greek word nomos, which means law.  This begs the question: Does Nigeria qualify to be referred as a nomocracy, a place where law reigns? Is our country even a proper democracy? These questions have elicited different responses from different scholars. Some have argued that Nigeria is a democracy to the same extent that the United Kingdom or Japan or Kenya is a democracy, for, according to such scholars, no style of democracy should be termed superior to another. Analysts who espouse this position also argue that to aver that we are not a country of laws implies that we are living in a chaotic nihilism, which, such scholars argue, is akin to the Hobbesian state of nature (Tamanaha, 2002; Stephenson, 2008; McIntyre, 2014).

 

 

 

 

In order not to be bogged down in a chicken-and-egg controversy and in order to proceed to a brief explication of the concept of justice, I will quickly volunteer an opinion which I readily concede might not be very popular. That opinion is this: In my estimation, Nigeria still has a long way to go before it becomes a true democracy or even before it evolves into a country where there is anything approaching a consistent, fair and unbiased application of the rule of law. The tenor and timbre of socio-political life in Nigeria still bear so close an affinity to our military past that one is tempted to doubt that the converted democrats of today are what they claim to be. Anybody who doubts what I am saying should consider the strange resemblance between the Public Officers (Protection Against False Accusation) Decree 4 of 1984 and the so-called Hate Speech Bill being considered by the National Assembly.

 

 

 

 

How then can one describe Nigerias democratic ethos? What rating can we give our country on the governance continuum that ranges from thoroughgoing autocracy to liberal democracy? Personally, I would say that ours is a titular democracy, a democracy in form but not fully in content. It is a brand of democratic nominalism that is becoming much too common on the African content, a hypocritical tokenism in which those in power at the centre bask in the vacuous euphoria of being popularly elected, while at the same time exhibiting all the draconian hallmarks of the Mobutus, Mugabes and Abachas of this world, especially in their dealings with members of the opposition. Consequently, one witnesses a situation where those in the opposition are pilloried and persecuted as perpetrators of the most pernicious acts of corruption whereas people who are accused of even more egregious acts of perfidy continue to luxuriate in the ruling party where they are afforded official protection. If the rule of law is integral to any definition of democracy, I leave you to decide whether a government that exhibits such tendencies as I have just described can be truly termed democratic.

 

 

 

 

Justice Defined

 

 

Although the concept of justice is said to differ according to culture, every system of law purportedly seeks to safeguard and promote justice. Justice, however, is not synonymous with law  it is possible for a law to beunjust (Martin and Law, 2016, p. 191). Justice, then, is the moral ideal that laws seek to uphold in the protection of rights and punishment of wrongs. To prove that laws are meant to uphold justice, the word is often used in the legal system; for example, in High Court of Justice, justice of the peace, and administration of justice.

 

 

 

 

Intrinsic to every definition of justice is the idea of fairness, which is why the concept of justice is traditionally symbolised by a blindfolded woman with a sword in one hand and a pair of scales in the other. The legal philosopher John Rawls invites us when thinking of justice to imagine ourselves behind a veil of ignorance that denies all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans (Rawls, 2009, p. 61). When one is able to decide right and wrong in this manner and to dispense approbation and sanction without fear or favour, then justice is said to have been done. Justice therefore is closely allied with the rule of law, for without the rule of law the dispensation of justice becomes an uncertainty.

 

 

 

 

Justice is important because where justice is threatened, peace is endangered. However, when people perceive that they are fairly treated, governance becomes less arduous. The task of upholding justice needs the cooperation of all and sundry, including judges, parliamentarians, citizens, journalists, etc.

 

 

 

 

The Role of the Journalist

 

 

Any discussion of the role of journalism in society must make reference to the concept of the Fourth Estate of the Realm, an idea with which all students of journalism are familiar. According to Watson and Hill (2015), the eighteenth-century British parliamentarian Edmund Burke (1729-1797) is reputed to have originated this phrase, which describes the press and its role in society. In Burkes opinion, the other three Estates were the Lords Spiritual (the church), the Lords Temporal (the judiciary) and the Commons (the legislature). And yonder, Burke is believed to have said in Parliament, sits the Fourth Estate, more important than them all. Commenting on this exalted conceptualisation of the role of the press, Watson and Hill (2015, p. 103) opine that:

 

The press, like the other estates, serves the State, as differentiable from government, and thus functions as a force for social, cultural and national cohesion. Underlying this argument is the assumption that while governments might be in error, the State is benign if not sacrosanct The classifying of the press as the Fourth Estate points up the ambivalent role of the media in society: does it tell the truth, the whole truth and nothing but the truth; or, because the priorities of State seem to require it, (does it) manipulate, conceal or deny that truth?

 

 

 

 

From the foregoing, the challenge facing todays journalists seems quite obvious: Are we to be a press that contributes to good governance or shall we be counted among the hatchet men who by their deeds or misdeeds contributed to the destruction of Nigerias longest experiment in civil rule? This question is important because while governments might be in error  might in some cases be far removed in policy and conduct from what responsible governments should be  that failure in and of itself does not justify the demolition of the entire superstructure of the State, for to do so would be to jeopardise not only the regime that happens to control the reins of State at the time, but also the wellbeing, survival and security of the citizenry for whose sake the State ostensibly exists.

 

 

 

 

Keeping power in check, therefore, does not consist in calumniating the holders of public office, nor does it necessitate the brand of journalism which, I regret to note, is becoming all too common on the pages of our local tabloids. I hesitate to even call it journalism, for when one takes one ounce of fact and mixes it with a hundred kilograms of fiction and garnishes that admixture with large helpings of other salacious spices such as spin, rumour and conjecture, baking the entire confection in the oven of sensationalism, then the resultant broth, unwholesome as it certainly will be, should not be dignified with the exalted sobriquet journalism; it deserves to be addressed by its proper name: jobbery.

 

 

 

 

Unfortunately, one must admit that pecuniary considerations have compelled many practitioners of the pen trade in Nigeria today to abandon the watchdog role of the press and become what Akpan and Idiong (2012, p. 12) have described as barefaced bootlicking lapdogs. One cannot but appreciate the existential dilemma that many journalists face in an economy where ethics and morality are severely tested by the exigencies of survival. To quote Akpan and Idiong (2012) again:

 

The peculiar problem facing the Nigerian journalist today is the challenge of having to work in a society where the levels of legitimate income are very low and where financial survival is predicated on patronage by the moneyed oligarchy. This group of power holdershave done their utmost to ensure that dissenting voices among the press are corrupted or otherwise financially asphyxiated, all in a bid to bring large segments of the Nigerian media into permanent indentureship(p. 12)

 

 

 

 

To ameliorate this problem, I wish to reiterate the call made by Udoakah (2017) and other scholars: Government should institute a special salary scale for journalists. If medical doctors and teachers can be given special remuneration, why should journalists be denied a similar privilege? In what way is the journalism profession inferior to the ones mentioned above? I cannot think of any such ways, for every society needs its reporters and broadcasters just as much as it needs its physicians and teachers.

 

 

 

 

In what ways, then, can journalists serve as a check on people in power? In my opinion, some of the ways of doing this are by insisting on calling things by their proper nomenclatures, by giving vent to minority opinions, and by resisting the urge to see everything through the prism of governmental opinion. Let me illustrate the points I am making by citing one American and one Nigerian example. After the emergence of the Abu Ghraib torture photographs in 2004, in which American military personnel were shown subjecting Al-Qaeda suspects to inhumane treatments, the US government refused to use the word torture when referring to that incident, preferring abuse or mistreatment. The mainstream US media followed suit, using the same euphemisms favoured by the government (McQuail, 2010). A similar scenario is unfolding in Nigeria. The Federal Government has been quick to proscribe the Indigenous People of Biafra as a terrorist organisation, but the same government has resisted every pressure to apply the same tag to the herdsmen who have killed hundreds, if not thousands, of innocent Nigerians.

 

 

 

 

It matters nothing to the government that the killer herdsmen have been declared the worlds fourth deadliest terror group while the IPOB has not been convicted of the murder of even a single person. If members of the press must serve as a check on the excesses of those in power, they cannot afford to act as mere megaphones of the ruling class or of the dominant ideology. To be a journalist is to reserve the right to deviate from the popular narrative, to be able to tell the world what the elite say but also to give vent to the views of the contrarians, who might constitute a disenfranchised minority.

 

 

 

 

Society as a whole stands to gain when the media are given the freedom to play this balancing role. Press freedom is universally desirable because those who are in power today may become members of the opposition tomorrow, and vice versa. The recent history of Nigeria bears testimony to this truth. If we suppress the press today, forbidding it from saying anything positive about those whose ideology or political persuasions do not align with ours, will it not be hypocritical of us to ask that we be treated fairly when the roles are reversed?

 

 

 

These considerations lead me almost inexorably to propose the adoption of Picards democratic-participant theory of the press. This tradition, which is aimed at safeguarding the health of democracy, emphasises media diversity and the protections of minority voices (Picard, 2005). It also espouses many of the key concerns of the social responsibility theory  media truthfulness, accuracy, fairness, objectivity and self-regulation  but in addition, it advocates the deliberate protection of media diversity by law, so as to compensate for cases where the political will to enforce social responsibilityis not strong enough (McQuail, 2010, p. 171). This solution might not be perfect, but it is certainly one alternative to consider as our democracy grows and matures. I would hasten to add that safeguarding the sanctity of the press has become an absolute imperative because of what our society stands to lose if the press fails, and because the work of the press is becoming increasingly perilous by the day.

 

 

 

Regardless of the challenges journalists may face in todays Nigeria, however, the press remains an effective means of promoting accountability in government, and journalists play an essential role in upholding the rule of law. As noted by the Rule of Law Institute of Australia (2018, n.p.),

 

The Rule of Law requires freedom of speech and (of) the media. People must be free to comment and assemble without fear and be able to criticise the actions of government. The role of the journalists in this process is pivotal.If their sources of information are not protected, and they themselves are open to legal action which prevents them from reporting in the public interest, the rule of law is threatened.

 

 

 

 

In the light of recent events taking place in Nigeria today, I very much fear that the semblance of rule of law that exists today, which was itself won by dint of struggle and sacrifice on the part of members of the press, is being squandered in the name of an anti-corruption fight in which laws are flouted at will and some alleged cases of corruption are, in the famous words of Shehu Sani, treated with insecticide while others are pampered with deodorants (Baiyewu, 2017, n.p.). Yet, equality before the law lies at the heart of the rule of  law.

 

 

 

 

According to  openDemocracy (2018, n.p.), everyone should be bound equally bythe laws of the land. In the face of this type of duplicity and double standards, it is little wonder that the current occupant of Aso Rock has pointedly refused to hold the traditional media briefings or address a local press conference in recent times. He knows that he would be pestered with uncomfortable questions and confronted with inconvenient truths in much the same manner that our own Ibanga Isine did during the first Presidential Media Chat in 2015.

 

 

 

 

Conclusion

 

 

In the course of this discussion, I have attempted to highlight the current state of the rule of law in Nigeria and to assess how the media themselves can contribute to the upholding of justice and the sustenance of the rule of law. However, no one should be under any illusions that the task of sustaining these worthwhile ideals belongs exclusively to the media. If impunity is to be curtailed, if civil democracy is to be sustained, if the corruptive tendencies of power are to be ameliorated, society as a whole has the duty to support and empower the institutions that can help it achieve these objectives. One of the most important of such institutions is a free press. The existence of a free and independent press is a sine qua non for the existence of a free society. Those who wish to see a free and prosperous society but do not wish to see a free press are like those aquaphobes who would like to dive into a swimming pool but do not want to get wet!

 

 

 

 

Let me conclude by making a prognostication. One may call it a prophecy, if one wishes. That prognosis is this: In spite of the challenges of this hour, in spite of the seeming resurgence of dictatorship in our nation, in spite even of the possible re-enactment of repressive laws disguised as instruments of national cohesion, the Nigerian press which survived Abacha will survive and flourish even in the most adverse of circumstances. So also will the rule of law survive, even if it is trampled under the jackboots of the foot soldiers of militaristic democracy. Like the Sphinx, these great ideals  a free press and the rule of law  will re-emerge from the graves to which their adversaries may temporarily have consigned them, for a free press cannot be totally eliminated nor can anyone permanently banish the rule of law

 

Distinguished gentlemen of the press, on this optimistic note, I wish to thank you most sincerely for your attention and I do hope that listening to me was not too boring an experience for you.

 

Nsikak Solomon Idiong, PhD is of the Department of Communication Arts University of Uyo he can be reached via nsikakidiong@uniuyo.edu.ng

 

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