keynote address delivered by Prof. Wole Soyinka at the Nigerian Bar Association (NBA) Annual Conference held in Port Harcourt.
LET me begin by confessing, without any fudging, that it was with very mixed feelings that I finally agreed to join you today at your annual conference. Some wounds dig deep into the human psyche, and continue to suppurate long after they were inflicted. Such, in my case, was the trial and execution of my late colleague and friend, Ken Saro-wiwa and his eight co-defendants in this very city. I have written about it, both in prose narrative and in anguished poetry, so I am saying nothing new. When I discovered that the chairman of your association was the very prosecutor in Ken’s case, I changed my ‘yes’ to a ‘No’. Then came the arguments for and against from NBA’s intercessors. The argument that tilted the balance, ironically, was never proposed at all. This was - could it possibly be that NBA was seeking an engagement on the issue, with the aim of arriving openly, and on the very scene of a singular trauma, at a measure of closure?
It was an intriguing possibility, one that I found frankly seductive. And now the timing, unsuspected at the time, turns out to be providentially propitious over and above any original considerations, Law having thrust itself to the forefront of national concerns, and not quite in a manner that redounds to her dignity. So let us at least dispense with that abnormal event that remains a transformative watershed in the lives of many of us, to which we all responded, and still respond, even subconsciously, in our inner directed, individual ways.
It would be irrational to have failed to take note taken of the circumstances under which Law then existed. I do take into consideration the regard under which Law and Justice were held during that reign of dictatorship dementia. That regard was, in one word – disposable. At best, patronizing and condescending, at worst, contemptuous. And yet it was different only in style and execution from the democratic equivalent that the nation has since experienced, such as the sack of Anambra State for over three uninterrupted days, overseen by an agency of the Law - the police. The same enabling environment was provided during the trashing of the Oyo State House of Assembly under what claimed to be democratic governance. What happened in the court premises of Ibadan, the brutalization of members of the Bar during judicial hearings for the restoration of legitimate governance to Oyo State, again with the same arm of Law looking on - all these were hardly different from what obtained under Sanni Abacha during the trials of Ken Saro-wiwa and his colleagues. We shall not even bother to enumerate the rash of extra-judicial killings, unsolved till today, mostly of political challengers.
In this very Port Harcourt, the Ogoni Nine defence lawyers, led by Gani Fawehinmi, were harassed and manhandled, their documents scattered to the winds. They were denied a level playing field. They were insulted and deprived of meaningful defence space. Cameras captured the scenes of this reversion to state force of intimidation at its crudest, contemptuous of opinion, local and external. Images were projected in gory detail. International observers were disgusted. The defence could only operate with one hand tied behind its back and, in the end, Gani Fawehinmi and his team withdrew - controversially – from their brief.
My view till today is that it was not Gani Fawehinmi and his team who should have withdrawn, but the Nigerian Bar Association, including its prosecuting member. It was prime setting for collective affirmation of the principle of Law, even under dire circumstances, indeed most especially under the direst circumstances, where an issue of life and death was involved. As with most other dramatis personae – direct or merely peripheral – of that painful drama, closure remains a destination much desired. I do not think that we shall attain it at any one encounter but, lancing the tumour of evasion and letting out the scab covered pus of Truth is one way of inching closer to that moment of closure. We have moved beyond recriminations, but all social organisations need to learn from the past, open themselves proactively to challenges of an abnormal nature, work hard at options of creative alternatives even where society is suffocated under the horrors of insensate, all-consuming power.
Today – and I speak of immediate, ongoing events - the problems of Law, and the challenges to her ministers are vastly different, but the implications for society remain the same – a severe drought on the judicial landscape, a deficit in public confidence, a questioning of the very viability of the legal recourse. It goes beyond a House divided against itself, asks whether the Citadel of Law has ever been much more than a long sustained mirage whose promise as a shimmering oasis of justice has finally evaporated.
One of the most riveting images of that struggle against the Abacha tyranny remains, for me, the picture of a former president of this same Nigerian Bar Association, Olisa Agbakoba with one eye blackened and nearly closed from an encounter with the outlaw enforcers of Ken Saro-wiwa’s direct murderer, the dictator Sanni Abacha. It was clearly a defining moment when an officer of the law discarded his wig and gown, having decided that only direct identification with the Civic Will remained as the last remaining recourse for the restoration of social justice. It is wrong that such a stark situation of limited choices should be imposed on a guardian of the portals of Law, but it is a choice where, when taken, reminds us that in the pursuit of democracy, the commonwealth of humanity sometimes requires methods of commitment outside the privileged bounds of one’s professional constituency.
We shall return to this theme shortly, and in greater detail, as we proceed. But first let us situate the nation’s governance experience within a continent’s formative history. As the last straggler clambered onto the ‘unity’ conveyance, the OAU in the early sixties, and was applauded into the chambers of the United Nations, Africa, many claimed, had finally come of age.
Had she? Was there something missing perhaps? A crucial lack that has resulted in the hideous destabilization of the continent North to South and East to West? One does not propose for one moment that this absence was solely responsible for a continental – not merely stagnation but - retrogression. That would be over-simplifying the complex nature of the organism called nation, and nation especially of the deleterious genesis of colonialism. One also concedes that coming of age has never implied entering a phase of existence that is devoid of stress, retrogression, or uncertainties. What we wish to call to mind is simply this: in the process of the emergence of the African modern state (in company with a number of Asian and Latin American states) one governance option was constantly given short shrift, irrespective of ideological leaning. That missing item is not much of a riddle. We only have to ask ourselves, taking an example each from two extremes of the ideological spectrum, this question: what was the abandoned option that was common to one nation of extreme radical Left - Sekou Toure’s Guinea - and another of the extreme Right, Mobutu Sese Seko’s Congo Zaire? Answer: Democracy. Even where Democracy was the starting acceptance as in Ghana, it was soon jettisoned. The culture of inclusive participation, constitutionalism, even law, Human Rights and accountability quickly became cumbersome. ‘Liberal democracy’ was pronounced like a dirty phrase, it stood in the way of the anti-colonial struggle, the African Personality etc. At times it was even deemed a sign of ‘western decadence’, a call to ‘bourgeois individualism’. It has taken upwards of half a century for the process of reversal, the ‘wind of change’ that was first sniffed by Harold Macmillan in apartheid South Africa, to traverse the continent, gathering force and turning into a veritable hurricane by the time it touched down in the Maghreb, toppling dictatorships in Tunisia, Egypt and Libya.
Democracy has a reticent characteristic of never appearing glamorous, no, not the way ‘radical’ sounds and positions itself. It is such a mundane expression, so pedestrian. It seems to drag, and we all prefer to sprint. Democracy could even be the name of a daily attire, of a farm implement or a social get-together. It is worn so threadbare in discourse of measured sobriety that many hanker for a change of clothing that stands apart from basics – flashy, ideally embodied in the unquestioned, charismatic leader. Paradoxically however, this same Democracy often appears difficult to sustain. Let us probe into the interstices of this state of governance evolution a little more closely.
Democracy may be viewed as a social platform – emphasis on platform, that is, a level plane, or better still, a trampoline - but balanced on three legs. Those three supports are anything but linear. They are much closer to those intricately carved traditional three-legged stools whose legs intersect in the middle, then stretch outwards to rest firmly on flat ground. In the type of stools I speak of, the legs are, to all appearances, carved from a single piece of wood with impressive ingenuity. One of those legs is known as the Constitution – written or unwritten, a set of protocols that enables society and defines its mode of functioning. The second is Law – a code of social regulations and modalities of adjudications that is sustained by its own autonomous structures and agencies. We also know that Law existed in pre-literate societies where enforcement was just as rigorous, or lax as lax we know it today.
Regarding that latter option in the provenance of Law - laxity - just to help us along, to remind us that role designation is not always the same as role fulfillment, compelling us to keep our feet on the ground, is a current commentary on the derelictions of Law by an executive governor. He voices a frustration that is the daily plaint of millions of Nigerian citizens. Thus, in The Guardian of August 17, 2011, we encounter this item:
“Governor Adam Oshiomole, swearing in his new state Solicitor-General, seized the opportunity to declare that the maxim – “equality before the law” must be practiced to the fullest for people to have implicit confidence in the nation’s democracy.
Oshiomole goes on to elaborate further on this in a personal, direct, experiential manner, down to earth:
“Before I came into government, I have always had the feeling that there are certain persons in society whom. through collusion by people in the Ministry of Justice, appeared to be above the law. They could kill and walk out freely. If they cannot help prosecute them, they can charge them in a manner and water down the charges such that no reasonable judge would convict them on the basis of the evidence presented. When the evidence is so compelling then they cannot be watered down, they resort to endless adjournments” etc. etc,
Law, in short, is also subject to manipulation. However, flawed or flawless, Law is not a leg of our tripod that can be dispensed with. Democracy cannot exist without it. However, the active core of Law is bound within that summative maxim “equality before the Law” even more profoundly than other popular guidances such as “justice delayed is justice denied” etc. etc. ‘Equality before the law’ cannot be detached from the very ontology of Law, any more than “equality under the constitution”. Infringement of either provision renders them invalid, inoperable, defunct and undermines, not only Democracy, but society itself. Again, let us bear this in mind as we proceed.
The third leg of our tripod, the Civic Will – I glancingly referred to it earlier - is a paradox since it is an extract from, and also finds its expression in the vital beings that make up society – that is, the citizenry, yet it remains a nebulous aggregate of that public pulse. Needless to remark that it is not codified, and it certainly is far more ancient than either Law or Constitution, and in fact may amount to the record of a people’s history. Take any one of those three supports away and – the result is predictable. A two-legged stool is simply not viable, even when carved to intersect somewhere along the middle.
This operation of the three supports is one of mutual inter-dependency. Social evolution has complicated the operations of both Law and Cosntitution, sometimes even while claiming to streamline both. That is one of the paradoxes of development – we should not complain but do our best to unravel such complexities and find a new language and mode of transmission for their ready absorption into public understanding, observances and application. Law of course interprets and adjudicates provisions and ambiguities in the Constitution where necessary. The Law also intervenes in the province of Civic Will – a ready example is the enforcement of Human Rights, without which Democracy cannot even begin to be conceived. Take a look at the recent history of this nation for instance, where the Civic Will has to be exerted again and again on the streets. As a nation, we would still be subject to those obsolete colonial laws that required citizens to obtain a police permit before any assemblage or procession in public spaces. That colonial law, as it was claimed to exist, was tested under the Constitution, and overturned through the very functioning of Law on behalf of the Civic Will.
Under the allegedly democratic reign of Olusegun Obasanjo that degenerated fast into a police state – as many warned at the time - you will all recall that a procession of women in Lagos, on their way to deliver a letter to the state government, was tear-gassed. Now why were those women on the streets? What was the content of their letter? They were women whose children had perished in the inferno of a crashed plane. These mothers, and others who joined them in an expression of solidarity, were tear-gassed, baton charged and arrested. They included members of the very association assembled in this hall, perhaps even present here today. That was a gross encroachment on Civic Will by an agency of one of the Democratic supports – the Law - a warped presumption of responsibilities that was irresponsible and inhuman, and it demanded the re-assertion of the Civil Will on all fora – the media, through the Law itself, or simply and defiantly – Back on the Streets!
Civic Will is seemingly inert, but is easily the most dynamic and eloquent leg of Democracy. But first, we must avoid any over optimistic assessment, or romanticisation. Civil Will is not homogenous. It can prove contradictory, fractitious and even self-desructive, acting against its own interest. Indeed, it is best to see this support that is the Civic Will as a composite, a mosaic that is not cast as a single mould, but welded from sometimes incompatible scrap-iron pieces, fragmentary and fragile. That is the safer image. It ensures that we do not find ourselves astonished and rear-ended when it breaks apart and flies off in contradictory directions, leaving it prey to its traditional enemy, Power. Its authenticity sometimes proves as elusive as that other problematic entity that is glibly called - the public good.
We know also that the Civil Will is not necessarily authenticated by the highest decibel or expressions of intransigence, nor is it determined by its proneness to volatility and destructiveness. If it were, the recent disturbances in the normally phlegmatic United Kingdom would be deemed an expression of that nation’s Civic Will, or the homicidal myopia of the Boko Haram, or its predecessor the Maitasine, as representative of the Nigerian Civic Will. Civic Will is subject to internal stress, even as it takes the battle to its partners and rivals in the democratic construct – the Law and the Constitution - the latter as a referential point, the former as its controlling, reconciling or interpretative agency.
Yes, it is sometimes necessary that the Civil Will take the battle to the Constitution. This should not be surprising. The Constitution is – or should be – an expression of the Civic Will, not its suppression. When it has emerged as the latter, and as long as such a constitution is not legitimized by the patent, transparent and collective activity of the people on behalf whom it has been fashioned, there will be tensions. And as long as the Law purports to act on behalf of such a document of suppression, there will also be repudiation of the Law in that regard. In short, a recipe for social anomie. The Constitution saves itself – at least, saves itself to fight another day - because, in-built into its provisions, are the mechanisms for possible change.
It is disheartening that humanity is forced again and again to that ledge of desperation where it must express its own unflinching resolve against the encroachment of Power. The example, first of Libya, but even more horrendously of Syria are humbling lessons, inspiring but also near unbearably agonizing. To watch the Syrian populace emerge again and again, unarmed, despite being cut down by the cowardly agents of al-Assad, the mass killer of Syria, picked off methodically like fish in a goldfish bowl, with children singled out also by snipers in order to inflict the maximum anguish upon, and thus demoralize their parents, is to be confronted all over again with the resilience of the collective human spirit in its seizure of that immaterial bequest of the human psyche called – Freedom. Even if African governments, including ours, have largely remained silent or tepidly disapproving of this daily butchery of the Syrian people, I take on myself the presumption of conveying the solidarity of the Nigerian people to their Syrian brothers and sisters – this, alas, is all we have to offer. I express our moral disgust at the criminality of the usurper of their collective sovereignty. in the estimation of all decent people, al-Assad has excommunicated himself from the human community, and we look forward to the day when he, and his henchmen will be tried for gross crimes against humanity. History is on the side of the people. Their Civic Will is being stressed to a degree that one cannot quite recall in the past half century. Their cause is humanity’s historic cause and, in all humility, we salute their courage. Theirs is a costly struggle, but triumph they shall in the end.
Such luminous, inspirational instances apart, one still recognizes that the Civic Will is not a seamless mould, is not homogenous and is not proven by belligerent energy. The question then becomes, how else, by what means other than violence, can Civic Will be determined?
Let us not mystify an answer that is so glaring, so obvious that it is amazing it should ever rise in contention – that answer is, Dialogue. Next, how do you organize a Dialogue? I have heard that question posed and it deserves its dismissal as a monumental distraction. There are numerous ways in which a nation can dialogue with itself. We are not short of precedents in this very nation, some genuine, others fake, purely rhetorical and insincere, constituting an equally monumental distraction away from the genuine dialogue. We engaged in one a few years ago, which was clearly nothing more than an opportunistic device for a private, illegitimate power agenda. We shall not go into those particularities. What needs to be emphasized is that, where dialogue is lacking, monologues take their place, and these can be of nation destroying intransigence. Either that or - silence, ominous silence that erupts eventually in irreversible consequences.
It could be of course that Dialogue is totally unnecessary. There are voices we hear regularly which preach that our nation has reached that stage where Dialogue has become superfluous, where the character if the nation is so indelibly stamped on its operations that dialogue becomes not just a distraction, bur a force for destabilization. Let us assist them even further in their disposition. We shall offer that the other two structured legs of Democracy – Constitution and Law (unlike Civic Will) are so firmly established, so intricately woven into the fabric of civic being that they have indeed become the incontrovertible expressions of the Civic Will itself and thus, must be taken as immutable. We shall further advance that Civic Will is not necessarily grasped in events of overt manifestation, such as Dialogue, that it is already expressed in the operations of Law and Constitution. Why expend time and money on something that already exists and is seen to be functioning?
Constitution, that third partner in the democratic tripod, is a candidate for such easy dismissal. It has not have passed – in the Nigerian case – the test of a product traceable to the manifested expression of the Civic Will, and many will attest to its identity as the concoction of a minuscule minority cabal known as the Military Mafioso. Today, even if that document is not to the satisfaction of huge swathes of the nation’s population, it has become, we shall propose, its expression, simply through its operation along symbolic processes such as elections, functioning institutions such as legislative houses, and the participation of millions of Nigerians in the populating of those chambers. If I may express this through a Yoruba proverb: ti ewe ba npe l’ara ose, oun na a d’ose. Traditional soap we know normally comes wrapped in leaves, so, translate that as: give it sufficient time and the wrapping leaf of the soap also turns to soap. Civic Will is no more mystical or illogical than that law of Nature, where even inert matter finds its destiny with seeming passivity but in reality, produces a dynamic result.
Thus, when a constitution of the most alienated originationation remains unchallenged, is actually cited as the legitimisation of acts, policies and structures of governance, then that constitution, we may argue, becomes an expression of the Civic Will.
But suppose the structure that is upheld by these three legs appears to be tottering? I asked this question not so long ago in Abuja. I recall the exhausting, largely tautological rebuttal that this received from a governor, known as the Comrade governor, who had been invited to contribute some remarks. I had to chalk that down, by the way as a unique experience. I was the Keynote speaker, he was just a discussant. My speech lasted fifty minutes, his nearly one hour and twenty minutes, so there was no room left for other discussants, audience participation, or even the final response by this Keynote speaker. In the United States it is known as filibustering – I simply had not known that the tradition had been imported to Nigeria with the presidential system. However, let us pass over for now and stick to substance – at least on the present occasion.
His interjection, the sum of which was that the nation as a democratic state was hale and hearty, in no need of a medical check-up or second opinion, is even something to which I am willing to grant plausibility. Nations have been known to survive in a state of advanced decay or through merely living on the brink. Some are dubbed banana republics, others client nations to more forceful and productive ones. They carry out orders which may or may not coincide with the interests of the people who constitute the nation. We have known these nations both of the right and left – the satellite nations of the once Soviet blocs, the Third World supply depots of the capitalist bloc whose leaders swagger through the corridors of the United Nations contributing nothing of their own to the progress of their own nations or of the world.
These so-called nations are no more than nation spaces. We cannot claim ignorance of the existence also of nations simply classified as “failed states” yet they seem to have taken to heart the proposition of that colourful politician/businessman, also from Edo state. When he was told that his son would not be nominated for a second term as governor, having failed woefully in the first term, his response was, “So what? If you sit and exam and you fail the first time, aren’t you allowed a “re-sit”? So maybe ours, which has been classified a failed state in company with others, is also having a re-sit. But permit me to pose this question: isn’t the mark of seriousness the will to do extensive revision before a re-sit? So let’s take the proposed dialogue as a “re-sit”, and proceed to an in-depth revision exercises.
The dynamics of mutual testing of interests – collaborative, adversarial, territorially expanding and retreating, contending and conceding until attaining an even keel of functional interaction, are part and parcel of the operations of Democracy, deepening and strengthening in the interests of the people it is meant to serve. There are benign, even creative challenges, needless to say, and there are malevolent, simply destructive ones. Neither Law nor the Constitution is written in stone and where the Constitution is not itself a product of Civic Will, it is especially vulnerable. As already emphasized, Civic Will can itself become a facilitator of any imposition, including despotism, real or incipient, simply by the culture of complacency, of acquiescence and collaboration in the operations of any set of protocols of association, however lop-sided. The Nigerian constitution today enjoys that dubious civic validation. It may be a grudging accommodation, it may be resentful, it may indeed be hostile but, yes, the Constitution is the nation’s document of self-validation – but that is not the same as saying that it has thereby come to stay. Visit the motor park any day and it will not take you long to find a bus or a lorry emblazoned with that truism: No Condition is Permanent.
Even absence or omission is not permanent. Augmentation or rectification – owing to developed or diversified needs, a changing world with unaccustomed challenges, newly encountered models for possible emulation - it is all part of social development. So now, let that reminder bring us down to some topicalities. Let us address one item to which some constituent units of our national estate have woken up as an unjust but rectifiable absence. We have reached a point in nation becoming where abstractions, while useful and stimulating, sometimes distance the urgent realities in which we are involved, so this is a good moment to refer to the recent controversy over a call for the insertion of a missed arm of our banking system, and ask why it is being elevated nearly to a ‘do-or-die’ affair. Surely, to bank or not to bank, belongs in the province of human choice. So far, no one has advanced any evidence that the entry of an Islamic bank contravenes the Law or offends letter or spirit of the constitution.
That recent cri de coeur - a cry from the heart – of the Sultan of Sokoto is a useful entry point into this subject and his cry actually opens out into two dimensions. First, I find myself in empathy with him – “why do people try to islamise….” etc. etc . I however expand it to read – why do people attempt to force into a religious mould, any religious mould – clearly social issues, negative or positive, transparent or obscured, projected or actualized etc. etc. Why on earth should Islamic Banking become a hot-air issue, with inflammatory discharges going back and forth, drum wars resounding, clerics, politicians and pundits at one another’s throat?
The recent upheavals across the largely Arab/Islamic world have nothing to do with christsian banking, any more than the five-day mayhem in more or less Christian England have the least connection with the existence of Islamic banks which I have seen occupying the same street with Christian originated banks, even though the latter are not so described. Islamic banking has not been mentioned as a contributory factor to the devastating collapse of European and American banks and the economic meltdown of the world. Islamic banking was not responsible for the hideous, mind-boggling corruption among several Nigerian banks, executives of which flouted that moral injunction contained in ancient Mosaic commandment – Thou shalt not steal. Thou shalt not covet they neighbour’s goods, least of all when such goods are placed in your sacred charge as highly paid, over guardians.
Islamic banking is not responsible for the violent unrest in the Niger Delta, the massacres of Idi, Zaki Biam, Bauchi, Kaduna, Gombe. Maiduguri etc etc. I have not heard Islamic banking cited in the manifesto – if any - of Boko Haram. It never featured in the statement of purpose of its predecessor, the Maitasine, whose followers butchered mainstream moslems with even greater zeal that they dispatched christians and the so-called ‘infidels’ of other faiths. Islamic banking is not responsible for the failure of Nigeria to have acquired sustainable electric power in sixty years of independence. It is not responsible for the breakdown of all human public services – from education to health and shelter, nor is it responsible for the total eradication of moral restraints that once existed in the nation, producing the new lucrative pastime of totally dehumanized criminal minds – the kidnapping of human beings – even the aged, feeble, or simply vulnerable for ransom. Only two years ago, at a lecture in Lagos, I urged the need to conserve and protect a nation’s youth as its primary asset – little did I know that this was already being taken literally, manifested in the stuffing of children into car boots ln order to extort millions of blood-soaked Naira.
I frankly do not understand the fuss. Banking laws exist. If an Orunmila Bank were to be proposed by followers of orisa, and it does not breach the nation’s laws, then such a proposal need not give anyone sleepless nights. And even if the Law is held to oppose it, orisa followers are entitled to take the initiative and make a case for a change in existing laws – that is their democratic right and no one can take it away from them. I shall be among the first to open an account with the Bank of Orunmila, based on Ifa precepts. Until one is established however, I shall join Pastor Tunde Bakare in opening a solidarity account with the Islamic Bank whenever it begins operations, as long as its terms are favourable to the needs of a seventy-seven year old writer without pension, but thankfully with minimal needs.
The extension – by implication - of the Sultan’s protest is, for me, a far more potent charge directed at society, and crucial to the setting for this gathering. It implicates two of the legs on which we have posited the democratic edifice – Law, and Constitution. It is inevitable that we expand the provenance of this challenging lament, since it is one that is not limited to any one religion. It thrusts its interrogatories beyond Nigeria and onto other lands and societies, so let us simply re-phrase it to read: “Why do people theocraticize…..” straightforward concerns of secular existence? The question applies to a particular cast of mind, usually moulded and fixated during impressionable years. By its adult phase, such minds have become inflexible and calcified, incapable of responding to any kind of phenomena except through theocratic lenses. The thrust of that question goes to the heart of democracy, and determines the basis of the democratic order. And yet, what other order is possible for harmonized co-existence in a pluralistic society differentiated by faith, history, and customs?
Here is a familiar example – trite, yet persistent, a recurring decimal in public instruction. The Plateau government, recently passed a law forbidding that women be dressed in trousers, under a supposedly Christian ethic of ‘proper dressing’. What business, in heaven’s name, has Christianity to do with a woman’s trousers? During an earlier bout of puritanic fever, this time in one of the south-eastern regions – I forget which, since state boundaries never seem to stop moving – one such resurgence took place under a military regime. As we have learnt to expect – and that gifted psychiatrist, Franz Fanon, had identified the syndrome in his seminal work, THE WRETCHED OF THE EARTH - the first line victims of the oppressed are always the next in line down the ladder of misery, a symptom of frustration and impotence that finds release in vengeance - not on their oppressors - but on other wretched of the earth. Mob rule took over.