Liberal Legalism and the Challenge of Development in Nigeria
Lawan, Mamman, Law, Social Justice and Global Development Journal
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. …