Law and Development: Bridging the breaches in the circle of development within the

context of particularities1

by

Peter Chukwuma Obutte, LL.B (Ib.), LL.M (Ife) Sp.LL.M, LL.D (Oslo)

Department of Public and International Law,

Faculty of Law, University of Ibadan.

pc.obutte@mail.ui.edu.ng

pcobutte@gmail.com

Abstract

Development remains a recurring objective for governments in

‘developed’ and ‘developing’ countries alike. Curiously, the

process has been more tortuous for the latter than the former. The

developing countries’ aspiration towards sustainable and

qualitative living standards has been fraught with inconsistencies,

complexities and uncertainties. Many of the developing economies

have remained in transition with fears of getting only worse due

largely to lack of focused and realistic planning. This paper

explores the multi – dimensional correlations inherent in the

traditional endogenous and exogenous factors2 of the development

discourse. The paper concludes with advancing a realistic

approach for the attainment of desired development goals. The

propositions are constructed within a developing society’s legal

framework taking into consideration the prevailing peculiarities

and particularities.

1 The first version of this paper, titled ’Breaches and bridging in the circle of development: Locating the ‘Rights’

links within the context of particularities’ was one of the two public lectures delivered by the author at the

Faculty of Law, University of Oslo on September 27, 2007 during the defence of the Doctor of Laws degree of

the Universisty of Oslo, Norway. 2 The problem with control or influence in a nations’ economy by external ’forces’ may in some ways be better

understood when viewed from the perspective of Egon Ceaser Corti’s comment, ”Give me control of a nation’s

monetary system and I care not who writes their laws”. See generally, Egon Ceaser Corti The Rise of the House

of Rothschild, M.A: Blue Ribbon Books, 1972, p.8. cited in: Bates, L, The New Economic Disorder, Florida:

Excel Books, 2009, page 48.

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Part 1

1. Introduction

In the last two decades, there has been a wave in what appears to represent an increasing

acceptance and tacit unanimity within the academic community that development is a process

towards improving better living conditions. Progress, however, is far removed from reaching

a global consensus on how tackle underdevelopment or the causes of underdevelopment.3 The

discourse has attracted varying shades of intellectual sympathy leading to interrogations of the

intrigues and related politics of development to contemporary issues of development before

environmental sustainability. Notwithstanding, as the conditions of underdevelopment

continue to live persist in societies, attempt would be made to establish the causal linkages

from the juridical dimension. In this connection, the paper examines the relevance of law in

the development process and how the administration of law alters the conditions of

individuals and society. In establishing the relevance of law in a society, the paper applies

hypothetical adaptations of ‘products’ and ‘processes’ and will thereafter indicate how

existing legal framework and norms can be utilized in a pragmatic manner to actualize better

standards across each society’s developmental spheres. The importance of this approach is to

underscore correlations and common linkages of factors that otherwise influence stability and

development trajectories of society through a downward or upward direction. Law is

considered as an effective and utility mechanism in driving the processes which are designed

to secure development.

With the conventional reasoning and basic notion that the quality of a product is largely

determined by the process which such a product has passed through or been subjected, the

pattern is applied to societal path to identified development goals.

3 Hellum notes that ”Law and underdevelopment theory starts out with the unequal economic relationships

between the North and the South as its major premise. This theory was inspired by Marxist economic analysis

and Andre Gunder Frank’s underdevelopment theory. While modernisation theory regards modern and

traditional laws and economies as separate spheres, underdevelopment theory focuses on their interdependence.

The basic linkage between the capitalistic and subsistence sector has been supplied by the concept of

dependency which focuses on the interdependence between two sectors in a deloping nation, namely, law and

economy. Underdevelopment is explained by reference to the international capitalistic economy and the

dependency of the international capitalist order for its development on the continued exploitation of raw

materials and labours from, so called, Third World countries. Thus I, according to this theory, it was in the

interest of the capitalist order to ensure that the Third World remained in a state of economic dependency and de

facto control of and by the West”. See Frank, A. G Crisis in the Third World, New York: Holmes and Meyers,

1981 cited in: Bentzon, A. W., Hellum, A., Stewart, W., Ncube, W., and Agersnap, T. Pursuing Grounded

Theory in Law, Oslo: Tano Aschehoug, , 1998, page 89.

3

Of primary importance are the measures taken to ensure the ‘expected’ quality in

developmental outcomes. And we would recall that the consideration of law in this manner is

not too different from the socio – legal analysis of social processes and social engineering4 per

se. It is in this connection that law in social engineering has been likened to a process in

which law provides the framework that a society builds upon. Taken differently, law could be

regarded not only as a means to an end but that which constitutes the ‘intentionally

constructed framework for social order.’5

Administration of law is consequently required to be confined to a process of effectively

facilitating lawful ends pursued by societies; through operations of lawfully constituted public

institutions such as ministries, departments and agencies at national or supranational levels.6

The paper is drawn from the need to discountenance the experimental approach (and the

excuses that follow thereafter) often associated with governance. For example, and as would

soon become obvious, the inherent disparities and features in countries torn between

complexities of economic models curiously embraced by them on the one hand and on the

other hand, the ability to understand the peculiar challenges facing such societies. The extent

and magnitude of untoward impact on a nation’s economy is often depicted in various

contradictory principles at the implementation phase.

Using two events and an analogy, the paper underscores the importance of qualitative

institutional processes in an intentionally productive manner, due to the linkage of ‘outcome’

from such undertakings in a given society. The importance of this approach is evident in the

realisation that many countries, especially as the transitional or developing economies,

continue to face the challenges of balancing out political mandates, good governance and

4 In the application of law within the context of purpose, place of relevance and locality a commentator observes

that: ‘Law provides the framework which the society builds on ... it’s a very logical field. And you have the

engineers who are taught to do things methodically. And also to realize that when you meet an obstacle, you find

ways to go round it or deal with it. It depends on your attitude towards solving problems’. See, Bayo Banjo, Disc

Communications Limited, Ikeja-Lagos, Nigeria, in an interview with Sakibu Olokojobi, The Nation, September

1, 2007, available at: http://www.thenationonlineng.com/dynamicpage.asp?id=29884, accessed September 1,

2007. 5 Moore F. S., Law as Process, An Anthropological Approach, London: Routledge & Kegan Paul, 1983, page 1.

6 That is, barring ’ambiguity of capitalism, socialism, communism (controlled economies and market

economies). It has been pointed out that ’an economy may be said to be capitalistic if its technology requires the

employment of large amounts of capital. In this sense, the U.S. economy and Soviet (former U.S.S.R) economy

are both capitalistic. Capitalism is usually applied, however, to economies in which most producer’s goods are

privately owned. In this sense the U.S. economy is capitalistic and the Soviet economy is not. Socialism is often

defined as the public owenership of producers’ goods and communism as the public ownership of most wealth,

including both producers’ and consumers’ goods.’ See generally, foundational essays on related themes in,

Wilcox C., Willis D. W., Holland H., Morten S. B., Economies of the World Today: Their Organisation,

Development, and Perfomance, Harcourt Brace Jovanovich Inc., 1966, page 2.

4

development with competing socio – economic challenges. Among various expectations

within a given geographical environment, credible economic governance stands out as the

most crucial challenge, though, a recurring aspiration of societies which incidentally,

represents one of many responsibilities of government. Therefore, how a government makes a

success or failure of this task will be of significant consequences. Even though it is often

underestimated, the consequences of outcomes are of different proportions across developed

and developing societies. The concern of this paper, however, is more on the consequences

which unexamined processes continue to have on developing societies.

The analogy of product and process, earlier referred was brought to the fore by Jeffrey Sachs

at the 2007 BBC Reith lectures when he recalled John F. Kennedy’s historical statement that:

‘Let us focus instead on a more practical, more attainable peace,

based not on a sudden revolution in human nature but on a

gradual evolution in human institutions, on a series of concrete

actions and effective agreements which are in the interest of all

concerned…It must be dynamic, not static, changing to meet the

challenge of each new generation, for peace is a process, a way of

solving problems’7

Through this path of conceptualisation, the paper aims at underlining the need for re –

appraisal of priorities of governance given current challenges, in addition to recommending

ways of consolidating identified (specific) national imperatives through an appropriate

framework.

The paper is divided into two parts and 12 sections.

Part 1 of the paper presents two scenarios and analogies to provide illustrations for the socio-

legal premise on which this paper is based. It continues the evaluation of issues through

thematic sections of: the circle concept; localities and particularities; facilitation of ‘rights’ as

legitimate aspiration of persons; dignity is more important to the human spirit than wealth;

7 Sachs, J. Bursting at the Seams, London: Royal Society Reith Lectures No.1, 2007.

5

infrastructure and network for development; plan of action for development; and brief

discussion on ‘rights and weak links’.

The second part of the paper proposes a framework applicable to an economic sector and

capable of facilitating realisation of a society’s development needs. It presents a practical and

solution-based approach in a typical governmental process, using a socio – economic premise.

This specifically examines development – friendly regulation models focusing on regulation

by objective; the components of regulation by objective and realisation of regulation by

objective. The paper is concluded with a few remarks.

To illustrate the significance of ‘process and product’, the paper places two scenarios in

perspective for a contextualised analysis.

The first is that phase which Africa found itself since the introduction of economic reforms

around the mid – 80s. The after – effects of the World Bank/IMF conditionalities have

continued to generate debates. These debates are pitched between (a) whether the reforms

caused the worsening economic conditions (exogenous/external factors) that followed and (b)

whether the present economic realities in African countries can be traced elsewhere, for

example such endogenous or internal factors represented by corruption8, bureaucracy

9 etc. As

the debates continue, the governments of African countries are far removed from both camps

and feign ignorance of cause(s) of the increasing economic hardships being experienced by its

8 As the country struggles with improvement in the quality of life, good governance and credible economic path

‘… it is generally considered that corruption is at the root of Nigeria’s inability to escape poverty and

underdevelopment’. See Obasanjo, O. ‘Nigeria from pond of corruption to Island of Integrity’, a paper delivered

at the 10th

Anniversary celebration of Transparency International, Berlin: 2003 cited in: Onyeka, S. O. and

Obasi, M.N ‘Due Process and Management of Public Finance in Nigeria’ Law and the Challenges of Nation

Building in the 21st Century, Umuahia: 2009, conference proceedings of the 42

nd Annual Conference of Nigerian

Association of Law Teachers, 24 – 29 May, page 94. Akintola highlights two potentially effective approaches

(institutional and legislative) in combating corruption in Nigeria. The first approach is institutional, requiring

some sort of “a synergy and or collaboration between the Economic and Financial Crimes Commission (EFCC),

the Independent Corrupt Practices Commission (ICPC), the Code of Conduct (CPC) Bureau, the National Drug

Law Enforcement Agency (NDLEA), the Customs and Excise, the Nigerian Immigration, the Tax Boards at all

levels and professional bodies such as the Nigerian Bar Association, the Institute of Chartered Accountants in

Nigeria, the Institute of Taxation, the Nigerian Union of Journalists, Institute of Auditors, the Institute of Estate

Surveyors and Valuers and the Institute of Quantity Surveyors, Sociologists and Criminologists in the

Universities.” Akintola proposition is predicated on the platform that such arrangement will “beat fraudulent

political office seekers/holders that have the penchant for making anticipatory declarations of assets”. The

second approach is legislative, requiring the amendment of the EFCC and ICPC Acts by inserting “penalty of

death sentence for any public officer, contractor, professional or private citizen found guilty of official

corruption after a trial by a court of competent jurisdiction … as the practice in Singapore (and China). See

generally, Akintola A Corruption and the Rule of Law: Wither Nigeria, University of Ibadan: 2010 Annual

Alumni Lecture, 2011, pages 50 – 53. 9 Peter Enahoro presents bureaucracy as ’the art of officaldom by the officials for the sake of officialdom’ as

well as ’a national ritual perfomed by everyone with the slightest advantage of being placed in a position in

which he has to perform a function for members of the public’. The aurthur notes that ’if the British eve come

back – ... they will find that among the few instituions they left behind which have survived independence, is

bureaucracy’. See generally, Enahoro P., How to be a Nigerian, 2009, Ibadan: Spectrum Books, page 47.

6

people. The reasons for the perceived indifference to the debates and determination to find

solutions have also generated further debates.

Whichever direction the argument goes, two issues which are not disputed are:

(a) the mode of internal economic management style is crucial especially to overcome

worsening economic conditions; and

(b) the undeniable fact that most developing countries, due to the reforms experiences,

have remained in the ‘failed state’ list.

The second scenario is the news report of June 21, 2007 by a Nigeria print and electronic

media. In the report, a Nigerian daily newspaper, The Tribune, cited the European Union

Ambassador to Nigeria, Robert van der Meulen, expressing the EU’s regret in providing huge

financial support to the Independent National Electoral Commission (INEC) for the 2007

presidential, gubernatorial and local elections. The EU’s regrets followed complaints on cases

of large – scale rigging during the elections as depicted by the outrage of the civil society. In

addition to the regrets, the failure to hold credible elections provides an insight into the causes

of corroding internal structures which have continued to worsen its development and socio –

economic conditions.

The two scenarios are interlinked as they both provide isolated instances that depict

‘regrettable’ or ‘unintended’ outcomes under a given process. One can ascribe the failure of

this process to lack of clarity of objective. In the first account which refers to World

Bank/IMF, we notice a mismanaged process which has only left scholars debating for

decades, on how it could have been done better. In the second account on EU’s

disappointment with the outcome of Nigeria elections, it reinforces the imperative of

understanding a process and establishing an appropriate framework for the process. That

would at least prevent missing an opportunity to contribute in a democratic process.

To better understand the significance of a given process, one can visualize aggregation of

societal processes, as a journey embarked upon by a society towards attainment of an

identified goal.

The goal of governance is often designed and presented to actualise development through a

variety of manifestations – stability, nation building, or democratisation. The non – realisation

7

of the goals by countries often depends on the implementation strategy of the government on

the one hand and on the other hand, the nihilistic indifference of the governed to ensuring

government accountability. For example, let us consider bridging the digital divide as the

journey, by way of analogy. We can further visualise members of the society carrying heavy

wooden planks to place across a gulf that divides two societies, A (developing countries) and

B (developed countries).

And we can further assume that it is in the best interest of both societies to bridge the gulf.

From its point of departure, society A is led by its leaders, on the journey to bridge the gulf;

with society B, watching from the other end of the divide. In this journey, the ultimate arrival

and placing the wooden plank successfully across the gulf will depend largely on how

important the journey is understood by those leading society A.

Where the leaders of Society A are uninterested in the journey while the journey is in

progress, a few questions may arise. Such question would include: (a) should society B show

any commitment to ensure the arrival of society A at their destination of ‘bridging the gulf’?

(b) Notwithstanding a negative or affirmative answer to question (a), a critical question for

society B and the members, not leaders, of society A, would be to investigate if there are

limiting factors creating obstacles in the journey in order to realistically consider options. This

approach is preferred to doing nothing. There is no doubt that favourable outcomes could

have been possible under any of the above processes and analogy, for the common good or

public interest.

One approach in which this would have been possible is to have ensured an initial pre-

identification of the objective or end; and setting in motion the modalities to secure an

effective process or means such that the desired outcome/product (end) can be guaranteed.

But the problems of consensus on the best approach to societal problems in spite of huge body

of laws in developing countries necessitated the need to locating means of achieving

effectiveness beginning from specific enclosures of societies.

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2. The circle10

concept

In considering the impact of government development policies in a given society, it is

necessary to examine the unit’s satisfaction with economic goods in a given country. It is

similar to emphasis consumer confidence as an index in determining performance of

consumable goods, products and services. The actions (however well – intended or

questionable) of political leaders translate into economic policies and implementations. There

is a chain of interconnectedness in a society. It is given that a family unit is a microcosm of a

society. The society on its part is consequently comprised of aggregation of families with

norms and values that guarantee fulfilment of their aspirations and stability in those units. The

collective units thereafter make up a society in each geographical enclosure with relative

stability as part of its foundation from the units earlier referred. The other part is two –

pronged: a part represents societal stability secured through efficient governance structure,

appropriate economic policies, apposite ideological linings and patriotic preferences of rulers.

The second part is that aspect of society managed with legal frameworks and creations

designed to meet the collective aspirations of a people. Such creations are usually represented

by established institutions of government such as ministries, departments and agencies all of

which are saddled with the responsibility of facilitating the individual pursuits and societal

goals.

A state forms part of a global society and consequently, enjoys the membership of comity of

nations. The efficiency of institutional structures and framework can be discerned from the

viability of a micro unit in any given society; using the individual and aggregation of

individuals to measure the conditions of people.

This step can be extrapolated to a wider global community for purposes of understanding how

we have contributed to world stability through our internal legal systems and framework.

It will then mean that we can sustain application of solutions from specific to general rather

than solutions pursued from the general perspective without bothering of the specific realities.

10

In a similar analysis, reference has been made to the Special Rappoorteur on the Promotion and Protection of

Human Rights, Mr Leandro Dspouy, in his final report on human rights and extreme poverty where he

describered poverty as ”... a string of misfortunes: poor living conditions, unhealthy housing, homelessness,

failure – often – to appear on the welfare rolls, unemployment, ill – health, inadequate education,

marginalisation, and an inability to enter into the life of society and assume responsibilities? The distinguishing

feature is that these deprivations – hunger, overcrowding, disease, and illiteracy – are cumulative, each of them

exacerbating the others to form a horinzontal vicious circle of abject poverty” Cited in: Adekoya, C. O ’Lifting

Nigerians from Extreme Poverty: Grave Human Rights Challenge for Government’, Vol. 1 (2009), Akungba

Law Journal, No. 3, page 37.

9

It is also considered that societal existence is an interdependence of components and elements

that are vital; not only in their distinct forms, but for the quality of the outcome or product that

is achieved.

In a process, typical of a journey, there is a fundamental requirement of planning, specific

standard(s) for components and elements to guarantee quality of projected outcome. The socio

– economic process is not an exception and consequently will depend on compliance with a

legal framework to function, not only for predictability but for stability that secures collective

societal expectations and fulfilment of individual aspirations. A contrary approach creates

breaches that gradually manifest in a variety of ways. If society subscribes to democratic

principles but is unable to sustain it, the breaches can be identified at the point of

administration of laws. The uniqueness of a society could pose a challenge to its inhabitants

when multilateral institutions fail in their duty to understand the variations for purposes of

working for national and common global interests.

This distinctiveness provides a platform for initial enquiry into facilitation of efficient

application of ground rules as a way of solving larger problems. The context – compliant

method, also, underscores the uniqueness that is reflected in the words of Jacqueline

Novogratz who, at the Conference on Technology, Entertainment and Design (TED), made an

observation on ‘Investing in Africa’s Own Solution’ and stated that:

“There is enormous opportunity to make poverty history; to do it

right we have to build business models that matter; that are

scalable and that work with Africans, Indians, people all over the

developing world who fit into this category to do it themselves

because at the end of the day, its about engagement, its about

understanding that people really don’t want handout, that they

want to make their own decisions, they want to solve their own

problems and by engaging with them, not only do we create much

more dignity for them but for us as well”.11

11 See generally, http://www.ted.com/index.php/talks/view/id/91, accessed on September 7, 2007.

10

As many post – independence African states relied on learning quickly to catch – up with the

level of development in the home countries of the colonialists, little attention was paid to

strategies capable of entrenching durable a framework that could secure a sustained progress

on the development path. Ommitting that crucuial component in the development process is a

predictable outcome with a wide – spread and prevalent dearth of technical expertise to take

control of major economic sectors that drive such nation’s economy. Though it is reasonable

to exercise caution in entrusting a nation’s economic decisions on foreign nationals for

reasons of national security, pride and continuing independence, however, this paper argue

that legislative intervention would have been utilized in ensuring adequate protection of state

and citizens from perceived exploitation. Too much caution may never be exercised in any set

of circumstances. Commentators for example concluded that the political stability of Senegal

in the year following independence was ensured by the presence of French technical assistants

in the civil service. It was further argued that ‘although these advisors were few in number

(and a minority of manpower provided through the French Aid program), their power and

effectiveness far outweighed their numerical strength12

. Adamolekun specifically notes that:

” ... by the time the West African territories became independent

in 1960 (Guinea, 1958), the proportion of top administrative posts

held by the French varied between 90 and 98 per cent.13

Understandably, one of the major policies pursued by the

Senegalese Government Council, establshed in May 1957, was to

increase the number of Senegalese occupying such posts, a policy

commonly refered to as the Africanisation or Senegalisation of the

civil service. Within three years the number of Senegalese senir

bureaucrats had increased consierably, both by simple integration

and by the apointment of qualified individuals after a course of

administrative training in France.14

In another perspective it was observed that:

12

O’ brien R. C., Foreign Ascendance in the Economy and State: The French and Lebanese 1979. In: The

Political Economy of Underdevelopment, Vol. 3 (1979) Sage series on African Modernization and Development,

Sage Publications, page 101. 13

See generally, D. Pepy, “Les Etats africains et leurs problems;” unpublished cours at the Institut d’etudes

politiques de Paris, 1964/65, p.351. Cited in Adamolekun L Politics, Bureaucracy and Development in Africa,

2006, Ibadan: Spectrum books, page 32 – 33. 14

Adamolekun L Politics, Bureaucracy and Development in Africa, Ibadan: Spectrum books Ibadan, 2006, page

32 – 33.

11

“… the attempt at building developmental states is not alien to

Africa, but it may not have produced the desired results. For many

post – independence African leaders, development was a major

preoccupation15

and they espoused various developmental

ideologies. From Ghana came Kwame Nkrumah’s philosophy of

Pan – Africanism, centered on the need for political and economic

liberation through the strategy of regional integration, designed to

promote economic development on the African continent. For

Julius Nyerere of the United Republic of Tanzania, the ujamaa

philosophy was to be the basis of collectivism in agriculture, aimed

at promoting rural transformation. In Zambia, Kenneth Kaunda

adopted the development philosophy of humanism, while for

Leopold Senghor, former President of Senegal, the anchor was on

the philosophy of “negritude”16

It is apparent that the post – independence African states could not match their aspirations

with realistic planning and predictable outcomes. The countries that introduced reforms did

same several years, like Nigeria’s indigenization policy of the 70s. While several decades

after independence, African countries are no where near their aspired level of relative comfort

with improved quality of life. It requires noting that ’given the focus on development, the

early post – colonial state in Africa was described by some as a ’developmental state’.17

15

Mkandawire, T. ’Thinking about Developmental States in Africa’, Cambridge Journal of Economics, 25 (3),

(2001), page 289 – 314. Cited in: Governing Development in Africa – The Role of State in Economic

Transformation, Economic Report on Africa 2011, published by Economic Commission for Africa, page 101. 16

Adejumobi, S. ‘Economic Globalisation , Market Reforms, and Social Welfare Services in Africa’, 2004. In

Globalisation and Social Policy in Africa, T. Akin Aina, S.C.L. Chachage and E. Annan – Yao, eds.

CODESRIA, Dakar, Senegal, page 30 in: Governing Development in Africa – the Role of State in Economic

Transformation, Economic Report on Africa 2011, published by Economic Commission for Africa, page 101. 17

See for example, Gibbon P. Civil Society, Politics and Agricultureal Development, 1997, In: Lindberg S. and

Sverisson A. (eds), Social Movements in Development, London: Macmillan, Cited in: Cited in: Governing

Development in Africa – The Role of State in Economic Transformation, Economic Report on Africa 2011,

published by Economic Commission for Africa, page 101.

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3. Localities and Particularities

Taking the analogy of process and product further, there is the presumption that laws of a

given society represent the core values of the society and aspirations of people within that

locality. The recognition of means of realising the basic tenets of the law not only upholds

societal values and peoples dignity but acts as an inclusive mechanism for societal values.

The given scenarios represent instances where public institutions expected to manage specific

processes in the public interest failed to succeed due to inability to fully appreciate societal

peculiarities while designing and implementing its development programs.

The consequences of ignoring the locality and particularity principles underscore the

contention that systems or places to a large extent, differ in accordance to urgency of needs

and what must be explored to circumvent impossible institutional bottlenecks that would

otherwise frustrate the realisation of a desirable end. The viability of economic systems with

these localities has direct correlation with functionality of the laws. This observation will

suffice in analysing the effectiveness of international cooperation as indicated in scenarios A

and B above.

Though development has dimensions of localities and particularities, it requires clear – cut

pattern that links national peculiarities and differentiations with identifiable international

benchmark for the protection of people’s rights to good governance. The economic reforms in

many African countries referred in scenario A were embraced by those societies largely

because the process were supposed to usher in an improvement in socio – economic

conditions reflected in lower prices, more choices for consumers, efficiency in service

delivery in addition to stimulating economic development. As improved economic conditions

and development have not been achieved by the governments in scenario B, the civil society,

labour unions and political groups have continued to urge their various governments to find

ways of bridging the widening gaps in the circle of development in each polity. It is, however,

observed that more breaches continue to occur thus widening the various gaps that currently

exist.

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4. Facilitation of ‘rights’ as legitimate aspiration of persons

Active participation of persons in a given society requires the facilitation by not only the

instruments of law, but an efficient framework for the protection of basic rights and freedom.

Furthermore, collective participation in a society provides a foundation for stability and

development. The stability provides a framework for institutionalised self – enforcement of

laws in a society. This requires the commitment of all to support legitimate livelihood of all

by ensuring observance of the rule of law in spirit, practice and in letters.18

All of these are predicated on the assumption that laws do exist to support each society in

their developmental goals aggregated from the unit goals of individuals or persons that

constitute such entity. The justification for the enforcement of laws based on those solemn

aspirations becomes imperative. There are instances where the journey or destination is to get

closer to either getting laws to function in addition to protecting fundamental human rights.

There seem to be a trend where basic rights only exist under the law, but are not realisable in

practice.

The existence of fundamental rights in any given systems is an affirmation of human dignity

and values with commitment to uphold them. It is often the existence of rights and their

realisation that provides the most important distinction between the developed and developing

countries.

5. Dignity is more important to the human spirit than wealth

The sub – theme ‘Dignity is more important to the human spirit than wealth’ under of this

section reflects one of Jacqueline Novogratz’s observations and profound findings after two

decades of working in Africa.

The simplicity of the statement is nowhere close to the complexity of problems of dignity

which the administration of laws is often confronted with in developing societies.19

A school

of thought for example contends that Africa’s development should be the sole responsibility

of the international community. But this view is giving way to the reasoning that places the

18

Akintola points that “the ancient concept of rule of law I clearly distinguished from rule by law, which now

have in Nigeria … the difference … is that under the rule of law, the law is pre – eminent and can serve as a

check against the abuse of power. Under rule by law, the law can serve as mere tool for a government that

suppresses in a legalistic fashion. See generally, Akintola A., Corruption and the Rule of Law: Wither Nigeria,

2011, page 19 supra. 19

It should be noted that this situation is regrettably present in developed societies where the victims are usually

more from the immigrants’ group of the country under consideration.

14

responsibility of development on the national government. Again, the two extreme views have

not provided solution to the problems.

This is due to the failure of national governments to find remedial steps to improve the

welfare of people; and undertake programs within an effective framework even as conditions

of people continue to worsen.

There is a leaning towards improving prospects of development realisation, by widening

people’s participation. This is anticipated through the examination and application of relevant

protections related to socio – economic rights. In doing this, the fault lines of development

will be identified, restored and strengthened, as a way to provide viable links for growth in a

given locality or particularity.

6. Infrastructure and network for development

The task of ensuring expected outcome requires mutually defined and agreed outcome before

process initiation, under a national framework or international cooperation; particularly in

areas of accountability for social infrastructure and evaluation of millennium development

goals. For example, a crucial requirement for achieving the lofty goals of developments goals

depend on credible processes that support good governance in affected societies.

The due date for Millennium Development Goals was set at 2015, while governments have

already demonstrated indifference to the date by declaring new dates. The conflicting dates

may at some point in the future provide a justification for not reaching the goals, thus missing

a credible benchmark for the development related undertakings by national governments or

multilateral efforts. Prime among the goals is eradication of poverty which is intrinsically

linked to others such as eradication of hunger, reduction in child mortality, reduction in

maternal health etc.

Nigeria for example has shifted its date from 2015 to 202020

for the realisation of its

developmental goals. It is evident that what should be important are not the dates, but the

determination and realistic plan to achieve those goals. In the economic sectors21

, the African

countries have continued to implement received directions from international financial

20

The numerical representation in government communications and documentations is 20: 2020, signifying the

country’s aspiration to be among the 20 industrialized nations by the year 2020. 21

Generally, this include the real, services, financial and public sectors of the nation’s economy.

15

institutions which outcome have only been more evident in controversy than in durable

economic development.

On good governance, several initiatives have been explored to encourage its realisation. A

striking example is the institution of the award of ‘5 million United States Dollars for most

effective African Head of State on good governance instituted by Sudanese – born and

founder of Celtel Communications, Dr Mohammed ‘Mo’ Ibrahim. The award makes an initial

payment of ‘a $5 million initial payment, and a $200, 000 annual payment for life to African

heads of state who deliver security, health, education and economic development to their

constituents and democratically transfer power to their successors’.22

It is surprising that such

stakes will be put in place to persuade African heads of governments to do the thing for their

people.

Some observers have already faulted Mo Ibrahim’s approach and do not believe that it will

guarantee or improve good governance. They argued that a bottom – up approach rather than

top – down approach will better serve the current realities to promote ‘effective governance’.

However, top – down or bottom – up, the issues are only being scratched and would therefore

contend that public – focused processes require self – enforcing mechanism that guarantee

their effectiveness. A necessary corollary to the preceding condition is dedicated and

statesman – like leader. The panel responsible for the award are confronted with the difficult

of selecting a worthy recipient through a catalogue of nominations representing “... selfish,

avaricious, egomaniacs who do not know the true meaning of leadership”.23

Along this

reasoning, Anele opines that:

“The fundamental problem with the Nigerian economy is not lack

of good economic policies – in fact, we have a glut of them. What

the economy requires for resuscitation is patriotic zeal,

selflessness, clear vision and resolve by the leadership to

implement policies and programmes that will boost employment

and wealth creation”24

22

See generally, http://en.wikipedia.org/wiki/Mo_Ibrahim, accessed 26th

September, 2011. 23

See generally Anele, D. ‘Nigerians, Where Are The Genuine Patriots’, 2011, The Sunday Punch, September

25, page 16. 24

Anele D. Power of Reason, 2011, The Sunday Punch, September 18, page16.

16

7. Plan of action for development

Two vital rights that guarantee self – enforcing processes are civil and political rights of

voting and socio-economic rights of the consumer:

Democratic rights: A plan of action is required to identify effective ways of improving the

welfare of people through processes that secure democratic rights as foundation to bridging

the internal processes in the circle of development. This is necessary as most of the civil

societies in developing countries have been disenfranchised and incapacitated from exercising

their political will.

Consumer rights: As most civil societies rely on demonstration of consumer rights in the

consumption of economic products, there is need to engage with processes that protects

consumers and ensure active recognition of socio – economic rights across various economic

sectors. For example, there exist a need to establish regulations that stimulates self regulation

and the effective procedure for legitimate claims presented by consumers.

There is an urgent need to:

(a) ensure that infrastructures of durable economic development are established in a

manner that sustains self-implementation; and

(b) evaluate institutional frameworks and examine ways of cooperation aimed at

strengthening infrastructures and clarifying points of relevance to general populace.

The importance of forgoing outline is to emphasise that it is through strengthening of

infrastructures for effective self-administration that protection of rights can be realised. The

experimentation which has been a way of governance remains too costly for human lives and

society in general.

Lessons from matured systems and across jurisdictions have shown that it is possible to

expand the participation of civil society through for example, the appropriate regulation of

markets and thus improve the prospects of durable and sustainable development.

17

8. ‘Rights’ and weak links

The existence of fundamental rights25

in any society requires corresponding availability of

verifiable infrastructures, authorised by law, for their enforcement and in the realisation of

individual freedoms.

The unenforceability of rights occurs daily in variety of ways. The retrogression of societies

begins with the inability to protect rights which would have enabled an individual contribute

to society’s general well – being. This breach or failure to uphold rights causes needless

anxieties to individuals and creates further breaches in the evolutionary process of a given

society. Examples of this are littered in developing countries where basic and fundamental

rights are unenforceable. Furthermore, when rights can not be enforced, the people as units

become weak links rather than strong links to processes that are designed for progress in any

society such as development plan, societal stability, etc.

It is often noticed that inability to enforce rights is not caused by absence of courts; rather,

such inability lies with cobwebs of technicalities and costs that are beyond the reach of

affected individuals.

An effective alternative would have been reliance on supranational instrument or international

framework. However, lack of clarity and politicised framework do not make the problem any

easier by relying on international instruments. And expectedly, the lack of potency in

international legal instruments finds a companion in a national inefficiency that consequently

explains the hostage conditions that a people finds themselves in; while their governments

continue to fail their societies.

In confronting this, the circle concept earlier referred, thus delimits lines that facilitates

operational effectiveness of countries considered within their natural geographic entities for

purposes of enforcing its laws. Thereafter such states would better fit into larger global

society under the existing obligations and commitments.

This concept provides on one hand, the basis for mandatory requirement on national

governments to underscore the fundamental importance of local and peculiar realities; and on

25

A lot of progress is required to narrow or eliminate the existing gap between the first generation, second

generation and third generation rights. It is a paradox that obstacles and impediments to the actualization of

rights and inherent better conditions of living for individuals are perennially constructed through legitimate

processes.

18

the other hand, an obligation of fair dealing by multilateral agencies and governments on

issues affecting vulnerable societies.

Relations with countries will recognise the critical need to establish collective effort at

ensuring operational effectiveness of infrastructures of rights as they ensure stronger links

capable of sustaining a peoples aspirations or a given national objective. The success of this

endeavour would again, bridge the weak links in the circle of development.

Through part 1, we highlighted some vital links of democratic and fundamental rights as

forming raw materials of a social engineering framework in a society. The processes of

realising them have continued to be met with avoidable difficulty.

The breaches in the processes still require bridging for purposes of:

(a) ensuring that the vital links of fundamental and democratic rights in a society are

restored and;

(b) improving the prospects of progress in any society.

The process of bridging the breaches or absence of fundamental and democratic rights may be

difficult, as we know that completion of elections are often considered fait accompli. A

subsisting challenge therefore is how to secure the protection of individual or consumer rights

afterwards, that is, in the economic market place. A practical approach to such task is what is

considered under the theme, regulation by objective.

Part 2

As we have indicated elsewhere, it is ironic that the challenges of governance have not been

reduced by the presence or existence of laws in a society even though the laws were made

with the intention of resolving identified problems. A practical approach of realising the

objectives of law is therefore shown under the regulation by objective.

9. Regulation by Objective

Regulation by Objective is a proposed regulatory model that seeks to incorporate into one

frame, a variety of fundamental and realisable goals of government or related entity. The

19

model is directed towards providing a tool and benchmark in overcoming challenges of

transitioning systems and complex economic governance. It is essentially of a business

management origin, sharing important similarity with Management by Objective introduced

in 1954 by Peter Drucker in ‘The Practice of Management’.

However, while Management by Objective is an organisational leadership approach which

proposes the collective participation of management and employees in defining an

organisation’s goals as well as means of achieving those tasks; regulation by objective in

contrast focuses on internal and external multiparty consensus on setting effective strategy for

the realisation of fundamental goals of government, civil society and business community

using sector – specific legal instruments as benchmarks in a given economic environment.

10. Components of regulation by objective

The components of regulation by objective comprise a sequence of:

(a) Identification of specific policy and statutory concerns;

(b) Determination of the state of sector/market under consideration;

(c) Consideration of necessary obstacles to policy goals;

(d) Institution of effective legal means to mitigate identified problems;

(e) Establishing follow – through mechanisms and procedures such as – sustained

monitoring, periodic and case-based investigations; and

(f) Appraisals on targets, rate of success, level of sector/market response, general

performance and re – evaluating implementation framework.

As mentioned earlier, constituting parties under this concept would require inclusion

of principal representative of government, regulators, consumer and stakeholders of

the industry.

20

11. Actualising Regulation by Objective

Considering growing challenges in instituting credible framework for quality processes across

government departments, the actualisation of regulation by objective would depend on:

i. Locating and putting in perspective the regulatory parameters for quality appraisal.

ii. Ability to work out a practical definition of regulation.

iii. Understanding the fundamentals, both within and comparative contexts.

iv. Reconciling regulatory objective with legal and policy instruments and a

consensus for application.

v. Agreement on sanctions for breaches or violations.

Regulatory complacency and disregard for market trends have direct set-back on the market in

the short – term, as well as having capacity to reducing the prospects of economic benefits in

the long – term.

It is troubling that a few societies, especially in developing countries are pitched against the

unfortunate burden of justifying existence through the legendary neglect and inability to

provide basic utilities by their governments.

12. Conclusion

A sustained improvement on the well-being of members of a society ultimately promotes

global harmony. It is a process that requires commitment by the governments in managing

affairs of governance especially in relation to ministries, departments and agencies established

by law for such functions and purposes.

It also requires unmistaken understanding of the fact that the absence of basic and

fundamental rights dis – empowers the people of a society in participating in processes that

will enable them overcome their peculiar problems.

The regulation by objective model provides a process of cooperation between governments,

and verifiable stakeholders to ensure that policies and laws meet societal expectations. This

promises to be particularly useful for complex market systems especially in transitional

economies with undeveloped and underdeveloped regulatory models. The relevance of RBO

practice presupposes inherent linkages of productive processes within a socio – economic

21

environment exemplified by market management and national framework in a synchronised

format.

We are once again reminded that if we do not act with authentic zeal and commitment, the

hopes of shared prosperity could instead become a nightmare of shared insecurity.26

Exploring

the benefits of RBO will help both the strong, weak governments and even failed states to

impact positively on the lives of their people rather than loss of opportunities resulting from

demonstration of ‘excessive enthusiasm’27

and application of experimental strategies at this

amazing moment of human history.

Finally, one of the trite principles of law communicates the reasoning that ‘laws are made for

man and not man for laws’. However paradoxical it may sound, we argue that there is a

crucial need to apply laws in a purposeful manner, to improve the life of individuals and

society, rather than focusing on ideologies. A focused, planned and pragmatic approach to

solving a country’s economic problems would be better than government by experimentations

as plethora of excuses abound for justification of economic failures by the state. The

synergised priorities of governments across national levels should outline processes and

procedures that ultimately sanctions institutionalised indifference to the people’s seemingly

unending pains of underdevelopment, in the midst of huge natural resource – wealth.

26

Sachs, J. ‘The Great Convergence’, 2007, London: Reith Lectures available at:

http://www.bbc.co.uk/radio4/reith2007/lecture3.shtml, accessed august 26, 2007. 27

Phrase used by a member of Nigeria Senate, Professor Jubril Aminu to define the vigorous application of the

economic reforms in Nigeria, from1999 – 2003.