Change, wishful thinking and second chances

On the eve of President Buhari’s first inauguration in 2015, I was asked to contribute an article to an agenda-setting exercise of sorts. In the piece, I pointed to three areas, from the legal practitioners’ perspective, where I thought we might see decisive action from the incoming administration. Those three areas were Judicial Reform, Regulatory Stability and establishment of the Rule of Law.

I was optimistic about these three areas because of the history of the incoming Vice-President, Professor Yemi Osinbajo, during his time as attorney –general in Lagos State. Lagos State had seized the reform initiative for civil procedure, opting for what was shaping to be a much more efficient process. Lagos was also very pro-business reform, clashing with the federal government on many fronts, the resulting litigation of which set out many of today’s precedents on federating units and the centre. Unfortunately, these antecedents have not counted for much in the context of my 3-point agenda over the past four years.

Supporters of the government will no doubt argue that the government has in its own very peculiar way tried to tackle corruption in the judiciary. And I will readily admit that reform is not just about processes – the best and most efficient processes in the world will matter very little if justice is buyable. Leaving room for the benefit of the doubt as to the sincerity of the government’s intentions however, the saying that the road to hell is paved with good intentions was never more apt. With its purported ‘sting’ on judges, the extremely controversial removal of the chief justice and the appointment on an interim successor and even the recent wining and dining with judges in the name of fast-breaking to cite a few instances, public confidence in the judiciary is certainly not higher than the administration met it.

This segues quite well into the Rule of Law. Not only has this administration suggested that it has the power to decide what laws and orders of court it will obey – it does not, to be clear – the attorney-general’s interventions in matters of concession and taxation have been arguably somewhat off the mark. If the federal government cannot be compelled to obey the law in its totality and will also not do so of its own volition, it is only a matter of time before state governments follow suit.

More importantly, if potential investors are uncertain about the abidingness of contractual terms with government or that orders of court are enforceable, other countries will become the preferred destinations for international business. Even more important is the effect that a disregard for the Rule of Law has on domestic interactions. People who feel that the law does not apply to everyone equally or that it does not apply at all to government and its agents will inevitably start to think about taking matters into their own hands. The growing outrage at extrajudicial killing by the police and other armed and uniformed agencies is clear for all to see.

Which brings us to the final item from four years ago – regulatory stability and predictability. Again, this is not something I think the government managed to achieve. There’s the issue of the various Executive Orders and the way the administration has purported to deploy them towards amending Acts of the National Assembly. Some Executive Orders were challenged in court, but even without that happening, there is surely something concerning about the ability of the Executive to amend legislation. People are quick to point to Executive Orders in the America but they are also of uncertain constitutional validity and each one has faced robust opposition as well.

Back in Nigeria, there is also the matter of the Federal Inland Revenue Service designating banks as tax collectors. While technically, the FIRS can appoint revenue collection agents, what the move has meant is that the FIRS can now circumvent the hurdle of proving the actual tax liability and banks can now directly reach into people’s bank accounts and hand their money to the Revenue. This raises all sorts of questions that, of course, no one in the administration wants to confront or answer.

All this begs the question, what can legal practitioners expect from this administration over the course of its second term? Will the government now attempt to reduce the length of time the average litigant spends in court? Will its anticorruption war finally ditch appearances for substance? The government is on a huge revenue drive, so it is unlikely the FIRS will be asked to reverse itself but will concerted action against the trigger-happy police now happen? Will Rule of Law and Law and Order be the legacy of their second term? I certainly hope so.