The entity often known as ‘the international community’ has a touching faith in standard liberal constitutions and one-person-one-vote elections. Now, while those are outstanding human inventions, it is becoming clearer every day that in plural, deeply divided societies these inventions alone will not lead to settled systems of governance.
The current difficulties in Cote d’Ivoire, Iraq, the Sudan and other places suggest that more is needed, a lot more. In what follows, I draw on lessons from developments in Nigeria. I do that without intending to suggest that Nigeria has ‘made it’ politically, or that the gains there are not provisional and fragile. Far from it. My intention is to offer a constitutional lawyer’s reflections on what it takes to get deeply divided societies to settle down so that we can all focus on how to achieve effective and accountable governance.
Colleagues often ask me the following question: ‘Nigeria appears complex and boisterous, will it fall apart?’ I always say: ‘No. It is stronger than you think.’ Here is why, and each reason I offer in defense of my position leads to, I argue, a generalizable lesson.
(1) No vetoes, no exits, you have to engage and bargain: At some point, the different factions of the Nigerian governing elite decided that it was better to negotiate with others and strike workable deals than to, as Nigerians say, ‘fight to finish’. I don’t want to put a date on it, but it happened. And it happened when power elites that had assumed they were veto players in the system came to realize that they were not, and secessionist dreams were abandoned by one or two other groups. This moment – a sort of equipoise or balance of forces – is crucial. For, if you have groups able to effectively overawe other groups, or you have a dictator able to sit on everybody, this crucial requirement will not be met.
(2) Build the practice of pushing hard then settling on a deal: A leading politician once said to me that Nigeria is governed at night. For, that is when members of the governing elite drive around the capital and talk, and talk and talk. For instance, at significant moments since the late 1990s, the country has avoided threatened breakdowns of the political system. The most recent is the crisis of succession to the late President Yar Adua, who was incapacitated in office and later died. People kept asking me if the crisis was terminal and I would say: ‘Nope, eventually a deal will be worked out.’ I believe that for deeply divided societies, this practice is important; for, if it is sustained, the system will settle down. For instance, it took the Iraqis nine months to form a government after the last election, but now that they have succeeded the players have learned crucial lessons. They have to keep practicing pushing hard but eventually settling on a deal that everyone can live with. If they keep doing that, Iraq will settle down. If they don’t it will not settle down.
(3) Evolve a useful set of constitutional conventions: Since the late 1970s, Nigeria has been trying to adapt liberal constitutional democracy to its own context. Some of the adaptation has taken the form of formal constitutional rules, like abandoning the Westminster model and adopting the presidential system, requiring supermajorities for key decisions, including the rule that a president cannot be elected with a simple plurality of votes but must show support in two-thirds of the states in the federation.
But some of the rules have been informal, and they are rules designed to promote inclusiveness, so that no one ethnic group or geo-political zone can monopolize power. One of the conventions – that the presidency should rotate between the north and the south -- is currently being contested and renegotiated.
As classically defined by A.V Dicey, constitutional conventions are ‘understandings, habits, or practices which, though they may regulate the conduct of officials, are not in reality laws at all since they are not enforced by the Courts.’ Another leading authority, Ivor Jennings, points out that constitutional conventions have two functions to fulfill:
“In the first place, they enable a rigid legal framework –and all laws tend to be rigid – to be kept up with changing social needs and changing political ideas…Secondly, the conventions enable the men who govern to work the machines. Government is a cooperative function, and rules of law alone cannot provide for the common action.
Governing elites, and the active citizenry, have to work to adapt the broad principles of liberal constitutionalism to the needs of specific, plural, deeply divided societies. Otherwise, they cannot work the machine. It will keep breaking down.