Liberal legalism and the challenge of development in Nigeria.

• Author: Lawan, Mamman

1. Introduction

   Nigeria is one of the underdeveloped nations of the world. Over 70 per cent of its population lives below the poverty line (UNDP 2007), it has the second highest maternal mortality rate (WHO 2005; World Bank 2005), the highest number of children out of school and a high rate of adult illiteracy (UNESCO 2007; UNDP 2007). The state of underdevelopment cannot be attributed to lack of resources. Being one of the major oil producers in the world, Nigeria has earned enormous amount of wealth from its oil over the years. What is the possible remedy for this paradox of want in the midst of plenty? In development discourse, law is often invoked as a viable means of development. A good legal framework is expected to guarantee the calculability and predictability needed in order to achieve economic growth. This idea, tagged in development parlance as liberal legalism, is a common prescription by the World Bank to developing and transition countries. For instance, the World Bank reports that it has supported 330 'rule of law' projects and spent $2.9 billion on the sector since 1990 (Trubek in Trubek & Santos 2006: 74).

   On face value, liberal legalism offers an attractive recipe for development. However, it is not without a critique which questions its legitimacy. For example, it has been labelled ethnocentric and naive, insensitive to the realities in developing countries. Nigeria being a developing country, these charges are relevant in its context. Even if the critique is glossed over, this article argues that liberal legalism is inadequate because its main focus is the market while Nigeria's major developmental problem is public corruption which causes loss of up to 70 per cent of public funds. It is therefore necessary to emphasise measures which tackle corruption in order for the country to meet its developmental challenges.

   The liberal legalist idea came in three phases: the Law and Development Movement (LDM) of the 1970s, the legal reforms under the Structural Adjustment Programme (SAP) of the 1980s and the World Bank's rule of law project which started in 1990. The last phase was introduced as one of the four elements of good governance which the World Bank identified as relevant for development. The other three elements are public sector management, accountability and transparency and information. This article argues that for corruption-ridden countries like Nigeria, it is good governance which should be emphasised, particularly the issue of public accountability which deals directly with public corruption.

2. What Does Liberal Legalism Entail?

   Liberal legalism has an instrumental conception of law. In its third phase, the World Bank identified rule of law as a necessary element for development. Rule of law, according to the Bank, constitutes the following five critical elements:

   (a) Rules known in advance: Since economic policies are implemented partly through rules, governments need to ensure that the rules are known in advance. Rules here include legislation, decision of courts, guidelines and regulations. Having rules known in advance implies three subelements: the existence of a coherent set of rules, their communication with accuracy, clarity, and effectiveness and the non-retroactivity of laws. The Bank has been concerned with the communication and coherence aspects of the rules. For instance, it has observed that communicating rules through publication of official gazettes has ceased in many developing countries and it started to assist these countries to restart the process and to introduce other means of communication. The Bank states that "peoples' knowledge of their rights helps both to limit the arbitrary behaviour of government officials and to create the climate of predictability which is associated with the rule of law" (World Bank 1992: 32).

   (b) Rules actually in force: Rules need to be applied actually. When laws are left in abeyance, an analysis of why they do not apply would be better instead of enacting new ones. Some aspects of enforcement of rules have a clear bearing on economic development and have received the Bank's attention over the years particularly in improving tax collection and changing security laws to enable lenders recover debts. For instance, in Sri Lanka, the Bank caused a change in the law which required lenders to obtain the leave of courts before they move against a mortgaged property. The law was based on historical concerns about the need to protect debtors from unscrupulous lenders. Now this leave is unnecessary because it does "not match the need of a modern economy" (ibid: 34, Box 9).

   (c) Rules applied consistently to all: Laws are not made for private citizens only. The state too is expected to exercise power according to law; government officials too should be subject to law just as private individuals are, and that their actions should derive from and be limited by specific legal authority. Legality and legitimacy cannot be established without the proper and consistent application of rules by government and its officials. It is only then that a predictable atmosphere would be created. This does not divest government of discretion. But discretionary power in law is always not absolute. It must be exercised based on reasons that are applied consistently, fairly and impartially and be related to a framework of purposes, policies, principles and rules. These limitations to exercise of discretionary power need to be respected as well (ibid: 34-35).

   (d) An effective, independent mechanism for dispute resolution: For a proper functioning of an economy and for conducting efficient private economic activities, it is necessary to have confidence in the enforceability of agreements in any legal system. This in turn requires an independent and credible judicial system that would ensure that private contractual arrangements are respected and that the law is applied uniformly. Without an independent, credible and efficient judiciary, the rule of law loses its conflict-resolving and confidence-inspiring function. "Unreasonable delays, uncertainty, and high costs in enforcing agreements between private parties all tax economic actors inequitably and damage economic efficiency. It is also evident that a strong judiciary is not only vital in enforcing contracts but is a shield against arbitrarily exercised executive power" (ibid: 35-37).

   (e) Clear rules and procedure for amendment of rules: The needed climate of predictability and stability in a legal system would not be provided if rules are constantly or arbitrarily repealed, amended, or waived. Ad hoc decisions whereby laws are enacted, amended or invalidated without known and established procedure create a perception of arbitrariness and subjectivity. Laws of this nature invite disobedience and cause a general lack of credibility for the entire legal system. It is important therefore to have and to publicise procedures for amending or repealing laws. How this would be achieved is however outside the mandate of the Bank. It is the prerogative of the country concerned to decide how the legislative process is organized and how the legislature is constituted and by whom (ibid: 38).

   As acknowledged by the Bank, two main dimensions emerge from the various definitions of rule of law. One is instrumental, which focuses on the formal elements necessary for a legal system to exist. The other is substantive, which refers to the content of the law and concepts such as justice, fairness and liberty (ibid: 30). The Bank's version of the rule of law is instrumental. It takes the form of formal legality which simply requires law to be general and announced in advance, applied equally, and to be certain without necessarily bothering about its contents (Tamanaha 2004: 34-35; Santos in Trubek & Santos 2006: 258; Tamanaha 2006: 130). It is what Dworkin (1985: 11) refers to as the "rule-book conception". In this sense, rule of law could be compatible with repression and totalitarianism as Raz (in Cunningham 1979: 4) argues:

   A nondemocratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. This does not mean that the nondemocratic system will be better than those Western democracies. It will be an immeasurably worse legal system, but it may excel in one respect: in its conformity to the rule of law. From 1999 onward, the World Bank expanded its version of rule of law with the incorporation of socio-political concerns by introducing the Comprehensive Development Framework (Faundez 2000: 2-3; Rittich in Trubek & Santos 2006: 203; Santos in Trubek & Santos 2006: 266). (1) For instance, it recognised human rights as relevant to development (World Bank 1998, in Pahuja 2006: 3) and acknowledged that the causes of poverty are as much political and social as they are economic (World Bank 2000; Faundez 2000: 3; World Bank 2002). Its legal reform agenda now includes "judicial reform, decentralization, labour standards, equal opportunities, gender equality, land tenure systems, criminal law and the protection of the environment" (Faundez 2000a: 31).

   The IMF also combines economic and political concerns in its content of law in development by invoking among others, "an aggregate governance index" which has six measures five of which relate directly to the rule of law. There is also an independent rule of law measure and it is defined as "the protection of persons and property against violence or theft, independent and effective judges, [and] contract enforcement" (Pahuja 2006: 4). With the UNDP, rule of law has been more politically-oriented as it underscores constitutional reform, entrenched bill of rights, and strong protection of human rights as necessary preconditions for development...