LAW: ITS BOUNDARIES AND FRONTIERS AND THE NIGERIAN SOCIETY
BY MUHTAR ETUDAIYE
DEFINITIONS
A subject such as this one can hardly be discussed without recourse to
definitions. Foremost is the question, what is society? For a working definition,
we may define society, in the aftermath of the evolution from a hunting and
gathering society to a sedentary one where roles and responsibilities were
shared with authority in the hands of one man, as a group of people living
together who have agreed implicitly and or explicitly to proceed in common under
certain beliefs and customs etc. This is indeed buttressed by a string of political
scientists. The International Ecyclopaedia of Social Sciences defines it as “a
relatively independent or self-sufficient territory of cultural distinctiveness and
sexual rescruitment”. Kathleen Heasman has defined society in its more concrete
and specific way to refer to large sections of people who have some
characteristic and in a restricted sense to mean the social contacts found in a
group like the society found in a factory1. It is a self sufficient system of action
which is capable of existing longer than the lifespan of an individual, the group
being recruited at least in part by the sexual reproduction of the members.
Inclusiveness and self-sufficiency are very important. What is undeniable is that
society must be constituted by a group or what the sociologists call a human
group. Sprott2 defines a group in the social psychological sense as “a plurality of
persons who interact with one another in a given context more than they interact
with anyone else”. He adds that, “A village may be said to form a group in this
sense because there is more interaction between its inhabitants than there is
between them and people living in the next village. A nation may be called a
group because the members of the nation interact with one another more than
they interact with the members of the nation across the frontier”3. Deutsch sees a
group as existing “to the extent that the individuals comprising it are pursuing
promotively interdependent goals”4.
Law is a simple and uncomplicated concept until the pointed end of a stiletto
pierces it open to reveal its schismatic factionalisation. Thus it is acknowledged
that “the definition of ‘Law’ could be an exhaustive and very endless exercise”5.
Law has simply, but in the realm of jurisprudence inadequately, been defined by
Justice Aderemi as “order”. He adds:
1
In the Study of Society, 1976
Sprott, W.J.H., Human Groups, 1958, p. 9
3
Op. cit.
4
Deutsch, Morton, Group Dynamics, ed. Cartwright D. and Zander A.F., 1955, P. 330
5
Justice Aderemi, Pius Olayiwola: Law as a Factor for Political Stability in the Third Republic; Paper
delivered during the Law Week Programme organized by the Nigerian Bar Association, Ilorin Branch on
February 1, 1989.
2
It is a form of discipline. It is a combination of justice and fair-play. It is a
phenomenon that is ever present in every aspect of human life. It is
certain and ascertainable …”6
and it begins again to take the appearance of that “very endless exercise”.
Order is an inappropriate definition for law. Rather and more appropriately, the
purpose of law and the reason why it is necessary is to maintain order; to order
the affairs of man in a way that one man’s right stops where the next man’s right
starts. A learned author7 appears to join in this assessment:
“The recognition that even in the simplest form of society some system of
rules is necessary seems almost inevitable. In any society, whether
primitive or complex, it will be necessary to have rules which lay down the
conditions under which men and women may mate and live together; rules
governing family relationships; conditions under which economic and foodgathering or hunting activities are to be organized; and the exclusion of
acts which are regarded as inimical to the welfare of the family, or of larger
groups such as the tribe or the whole community. Moreover, in a complex
civilized community, even if simplified to the degree dear to the heart of an
anarchist like Read, there will have still to be a large apparatus of rules
governing family, social and economic life. The idea that human
community on whatever level, could ever conceivably exist on the basis
that each man should simply do whatever he thinks right in the particular
circumstances is too fanciful to deserve serious consideration. Such a
society would not be merely, as Read puts it, ‘a society without order’, but
the very negation of society itself”8.
Law may be defined as rules legislated by the government or other authority but
indeed that would be a very narrow definition for it is acknowledged that courts
indeed also have legislative roles in that sometimes they make law by the
decisions they make which decisions may by the principle of judicial precedent
be binding on other courts. On the other hand it would not be out of place to refer
to the courts of law as “authority” which brings it within the purview of the above
definition. But law may also flow from judicial writings which may be adopted by
the courts and may thereby wear the toga of a precedent or they may derive from
custom whose origins are not so apparent but which, as the legal field matures,
may become embodied in statutes or may themselves become rules of law
pronounced by judges and consequently become precedent.
Law however may result in unsavoury consequences at least in some eyes.
Thus, Mr. Bumble in Charles Dickens’s Oliver Twist blurted, on being informed
that he was liable for his wife’s actions, that:
6
Op. cit.
Lloyd, Dennis: The Idea of Law (1987); Penguin Books
8
Ibid. at p. 24
7
“If the law supposes that, the law is an ass – a idiot”.
Some have ventured to add that “the law is a veritable ass”.9
That kind of sentiment formed the basis for the introduction of the principles of
equity which sought to cushion the unfair impact of the strict application of the
law to the letter.
It would again be impossible to relate law to society without at first a
consideration for the origins of law. The issue of the origins of law has provoked
protracted arguments about the fountain of legal authority. But perhaps there is
need to look at the logical origins of a society and from there pinpoint the origins
of law. Sprott lends credence to this assessment of origins:
“Of course, if you consider two people who belong to any culture – a
system of standards accepted by the wide community of which they are
members – meeting for the first time, it is perfectly true that they will be
equipped already with expectations about each other. They will have
learnt to deal with strangers, according to the rules of their larger group;
that among other things is what manners are for. Their initial contact, if
they have been adequately trained, will be smooth enough; they will not
have to develop standards of their own for the purposes of superficial or
temporary interchange. If, however, they go on meeting, and form a group
of two, each will have to respect the ‘little ways’ of the other; they will have
common interests, in the arts, in sport, in financial enterprises or in
anything else. Gradually mutual customs peculiar to themselves will be
accepted by each, and form a set of mutually harboured expectations
which form the standards of their interacting, over and above what one
would call the ‘common rules of politeness’. In addition, action in
accordance with these standards will be regarded as ‘right’, and
unexpected action, where an expectation is present, is something which
has to be explained – it is somehow inappropriate and threatens the
harmonious existence of the group”10.
Soon according to him, without the members of the group noticing it:
“… a set of customs becomes established which are regarded as ‘right’
within the context in which the group operates, and they are felt by each
member as being in some sense outside himself. He does not think: ‘I
must do so and so because of B’s expectation; he thinks, if he thinks
about the matter at all: ‘I must do so and so because it is our way
ofbehaving’; or, ‘because if I do not, I shall get black looks’. The group, if it
9
Segun, Mabel: Friends, Nigerians, Countrymen, Chapter 7, p. 29 (1977)
Sprott, W.J.H., Human Groups, Penguin Books 1958, pp. 12-13
10
has been in being for a time, assumes a kind of independent existence in
the minds of its members, and the rules are ascribed to it”11.
Herodotus12 provided the fifth century Greek insight into political thought with the
categorization of the acknowledged beauty of monarchy, aristocracy and
democracy. There was a tendency for the monarchy to disintegrate into a
tyranny. But democracy, because it propagates the equality of all men before the
law is wont to become mob-rule. Thus a government by the best available men,
in his estimation, is to be preferred. Whether government by these men will
eventually and ultimately translate into rule by men who are headed by a man
who utters words such as:
“Well, when the President does it, that means it is not illegal”. – Richard
Nixon
remains a moot point to be mulled for eternity.
Herodotus did not stop there. The undisputable best, in his estimation, had to be
rule by the one best man. Whether that rule by the one best man will eventually
and ultimately translate into rule by men who utter words such as:
“They charge me with the commission of great crimes. Men of my stamp
do not commit crimes”. – Napoleon
no one will probably ever know.
Aristotle believed that what was just by law did not always tantamount to what
was just by nature. There was a concept of natural justice valid universally with
the same force. These conclusions he drew from his observation of the Greek
city states. The Greek city states such as Athens prided themselves in their
adherence to natural justice. In other words every man be he a man of means or
the wretched low down must receive his just due. In Euripides’s Phoenician
Maidens appears this exhortation to honour:
“Equality, which knitteth friends to friends,
Cities to cities, allies unto allies.
Man’s law of nature is equality”13.
A lot was to be garnered from a glimpse at the Greek political institutions of the
time. There was in place an assembly at which every Greek male of above the
age of twenty was entitled to attend and magistrates were made answerable to it.
11
Ibid. at p. 13
Herodotus: History, Bk. III, 80-82
13
Ll. 536-542 (Way’s trans.) as reproduced by Sabine, G.H., A History of Political Theory, 3 rd. ed., Harrap
1961, p.26
12
The tenure of the magistrates was brief and reelection was outlawed giving a
leeway to other citizens to aspire to the same heights. The magistrates tried both
law and man and quashed the laws it held to be unconstitutional. There was trial
by jury and the members of the jury were nominated from a body of six thousand
elected each year. There was an intricate system of what, in modern parlance, is
called checks and balances in place. Pericles drooled with pride on the glory of
Athens in this famous funeral oration:
“I would have you day by day fix your eyes upon the greatness of Athens
until you become filled withlove of her; and when you are impressed by
the spectacle of her glory, reflect that this empire has been acquired by
men who knew their duty and had the courage to do it, who in the hour of
conflict had the fear of dishonour always present to them, and who, if ever
they failed in an enterprise, would not allow their virtues to be lost to
theircountry, but freely gave their lives to her as the fairest offering which
they could present at her feast”14.
Tyranny was assailed:
“No worse foe than the despot hath a state,
Under whom, first, can be no common laws,
But one rules, keeping in his private hands
The law”15.
Law, it appeared, was meaningless to a society without these ideals of
patriotism.
From whence did natural justice flow? Is it from the laws of a Supreme God and
can the laws of this Supreme God be made subservient to the laws of man? In
Greek settings of that time, the Sophocles’s Antigone is often cited. It is said that
Antigone was charged with having breached the law by undertaking the burial
rites of her brother. Her response:
“Yea, for these laws were not ordained of Zeus,
And she who sits enthroned with gods below,
Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Could’st by a breath annul and override
The immutable unwritten laws of Heaven.
They were not born to-day nor yesterday;
They die not; and none knoweth whence they sprang”16.
14
As recited by Sabine, G.H., ibid. at p. 12
Euripides, The Suppliants, II. 429-432 (Way’s trans.) as reproduced by Sabine (ibid.) at p.18
16
Ll. 450-457 (F. Storr’s trans.) as reproduced by Sabine (ibid.) at p. 29
15
Or is law merely conventional? Is justice merely the rule, rather than of right, of
might in the eyes of nature? Some hold that indeed nature is representative of
the master-servant relation as between the strong and the weak on earth.
Callicles17 states that:
“If there were a man who had sufficient force … he would trample
underfoot all our formulas, and spells, and charms, and all our laws which
are against nature”18.
Legal justice in those circumstances would merely buffer the weak against the
might of the strong.
Cicero would later offer of a true law, right reason, diffused in all men, constant
and everlasting. There was always a tendency to relate natural law to theology.
The Calvinist, Johannes Althusius (1557-1638) relied on theology as a basis for
his theory that there was a law binding on all peoples universally. His fellow
Calvinist traveler, Grotius moved on from there insisting that there was such a
thing as the natural law even if it were to be supposed that God does not exist or
is not concerned with human affairs. Thomas Hobbes came along and defined a
law of nature “lex naturalis” to be “a precept of general rule found out by reason,
by which a man is forbidden to do that which is destructive of his life”. Grotius
and Hobbes thus assumed the mantle of the leading lights of the natural law
school.
Plato, a student of Socrates, had immense distrust of democracy and this was
only matched by his distrust of politicians whose ignorance and incompetence, in
his view, were the peculiar bane of democracy. He was a student of his master’s
philosophy that virtue is knowledge. The pilosopher, the scholar, the scientist the
men of knowledge ought to possess and exercise decisive power in government
on the basis singularly of their knowledge. Through that he propounds his theory
of the enlightened despotism. Thus government had to be an art depending on
exact and precise knowledge. Second, society is a mutual satisfaction of needs
by persons whose capacities supplement each other.
Sabine says that:
“So firmly was Plato convinced of the pernicious effects of wealth upon
government that he saw no way to abolish the evil except by abolishing
wealth itself, so far as soldiers and rulers are concerned. To cure the
greed of rulers there is no way short of denying them the right to call
anything their own”19.
17
Gorgias
484a (Jowett’s trans.) as reproducd by Sabine (ibid.) at p. 31
19
Ibid. at p. 57
18
The 18th century French philosopher Jean Jacques Rousseau opined that for the
law to qualify to be obeyed, some sort of social contract freely agreed by free
citizens must exist. But John Austin the English jurist argued instead that laws
are nothing more than a series of commands from the ruler, the sovereign to the
ruled. Simultaneously, Friederich von Savigny was proposing in Germany that
law was a thing that grew naturally out of a nation’s spirit, environment and
history. Von Savigny referred to the volksgeist (the spirit of the people) and
proposed that the nature of any particular system oflaw had to be a reflection of
the spirit of the people who had evolved it.
There was still another insight. The field of Legal Realism is itself realistic for the
law is the law until defined by the judge. When once pronounced upon by the
judge the law may at once wear a new toga. And from pronouncing upon the law
the judge may indeed have pronounced the law. It is indisputable that judges
make law and that the law is what the judges say it is. BARENBLATT V. UNITED
STATES20 is one good example of judge made law. The First Amendment to the
United Staetes Constitution provides in clear language that Congress shall pass
no law abridging freedom of speech, press, assermbly or petition. Period.
Barenblatt, a college professor was named by a witness before the
Congressional Committee on Un-American Activities as having been a
communist during his school days. He was summoned to testify but refused on
the ground that the Committeeby so doing violated his First Amendment rights
and that it was conducting a legislative trial. His contept conviction was upheld by
the court of appeals. At the Supreme Court the minority held that the First
Amendment could not be read by any stretch of imagination to say that
“Congress shall pass no law abridging freedom of speech, press, assembly and
petition, unless Congress and the Supreme Court reach the joint conclusion that
on balance the interest of the Government in stifling these freedoms is greater
than the interest of the people in having them exercised” as the majority had
done but they were overridden by a majority that turned to its refusal “to blind
itself to world affairs” and the conclusion that “the balance between the individual
and the governmental interests here at stake must be struck in favour of the latter
and that therefore the provisions of the First Amendment have not
beenoffended”. Where necessary, judges have widened thedefinition of law
beyond, some might say, its bounds. In one case21 a Supreme Court justice had
his life threatened by a disappointed litigant named Terry and the Attorney
General consequently assigned a United States marshal, Neagle, to protect him.
When Terry appeared aboutr to assault him, Neagle shot and killed him and was
then held on a charge of murder by State authorities. The Federal Government
sought Neagle’s release on habeas corpus under a federal law that made the writ
available to a person “in custody for an act done or omitted in pursuance of a law
of the United States”. The snag was that Congress had enacted no law
empowering the President or the Attorney General to assign marshals for the
20
21
360 U.S. 109 (1959)
In Re Neagle 135 U.S. 1(1890)
protection of justices. The United States Supreme Court while discharging Terry
from custody held that:
“In the view we take of the Constitution of the United States, any obligation
fairly and properly inferable from that instrument, or any duty of the
marshal to be derived from the general scope of his duties under the laws
of the United States, is ‘a law’ within the meaning of this phrase”.
This inevitably leads to the subject of “political questions” which is an exercise of
law making functions by the courts and over which the courts especially in the
United States have held for quite a while that they have no jurisdiction. It is said
that the “political questions” doctrine was first applied in 184922 in a case in which
the Rhodes Island government still operated under its 1663 charter. There was
rebellion by a liberal faction and two competing governments co-existed,
sometimes violently, for a while. When a private citizen brought an action for a
trespass against an official of one of the governments the official contended that
he was acting on the authority of the lawful government. Had the court reached a
decision, it would have been compelled to go into which government was the
legitimate one. It therefore declined to decide it being a political question. A
learned jurist23 has conceptualized the doctrine:
“Controversies which meet the test of justiciability are nevertheless
occasionally refused adjudication by the Supreme Court on the ground
that they involve ‘political questions.’ Like justiciability, the political
questions doctrine is a manifestation of the general principle of judicial
self-restraint. It is based in part on constitutional doubts about the scope of
judicial power and in part on a prudent awareness of the practical
limitations of courts and judges. The constitutional element in determining
justiciability is the extent of judicial power under Article III; the
constitutional element in determining the political questions doctrine is the
separation of powers. Consideration is given, in other words, not only to
the proper scope of the judicial power but also to the powers and duties
assigned to the legislative and executive branches”24.
But BAKER V. CARR25 has become the locus classicus on this principle and the
judgment of Mr. Justice Brennan as the authoritative exposition of it. He there
made the sound distinction that because a case comes within the description of
“political cases” does not necessarily bring it within the political questions
doctrine:
“It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political question,
22
Luther V. Borden 7 How. 1 (1849)
C. Herman Pritchett: The Federal System In Constitutional Law (1978); Prentice Hall
24
At p. 70
25
369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)
23
althougheach has one or more elements which identifies it as essentially a
function of the separation of powers. Prominent on the surface of any
question held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or
theimpossibility of a court’s undertaking independent reslution without
expressing lack of the respect due coordinate branches of government; or
an unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
“Unless one of these formulations is inextricable from the case at bar,
there should be no dismissal for nonjusticiability on the ground of a
political question’s presence. The doctrine of which we treat is one of
‘political questions,’ not one of ‘political cases.’ The courts cannot reject as
‘no law suit’ a bona fide controversy as to whether some action
denominated ‘political’ exceeds constitutional authority …”
There will be further reason to consider the principle relating to political questions
in the Nigerian context shortly.
Thusly, natural law, positive law, leagal realism and the others each on its own,
believing itself to exclusively define law, engages merely in fatuous scholarship.
Fused together however and feeding off one another, they tend to better define
law however inadequately for each bears one valid component that the other
may have shunned.
This deluge not only of laws but of its natural, social, scientific, psychological and
philosophical concept utterly provoked Sandkuhler’s26 paradoxical view of law
that swung law up and about like a yo-yo:
“The situation in which we debate law is a paradox one. In modern times
the enforcement of subjectivity and individual rights has given rise to a
collision of interests and because of this has made necessary the
juridification or regulation by law of the life relations of society which were
previously regulated by conformity in morals and ethical practice. This
paradox can be reduced to the following simple formula: The more
freedom, the more law; the more law, the more state; the more state, the
less freedom; and the less freedom, the greater the necessity of law”.
THE POSITION OF LAW IN NIGERIA
Juxtaposing these concepts of law with the jurisprudential status in Nigeria may
well result in the diagnosis of anarchy in its classical sense. An eminent jurist and
26
Sandkuhler, Hans Jorg: Pluralism and The Universality of Rights
Justice of the Supreme Court27 embarked on an analysis of the of the volksgeist
doctrine of Von Savigny and raised real and substantial intellectual questions
about the spirit of the Nigerian people and how they are reflected in the laws that
govern it. He applied the clinical methodology of tracing the history of Nigeria’s
legal development till the present. A brief summary of his findings traced this
from the advent of the British merchants in 1861 and the creation of the colony of
Lagos the following year, the introduction of Ordinance No. 3 of 1863 etc. There
were however the customs of the people which however the merchants
considered to be barbarous. These laws were permitted to exist “but only to the
extent of their compatibility with imperial rule”28. Thus arose the phrase
“repugnant to natural justice, equity and good conscience” which have embossed
its statutes till the present. Honourable Justice Eso then asked, “Could the
Jurisprudence then be regarded as emanating from the ‘GEIST’ of the
‘VOLKS’?29”
When analysed, natural justice, a supposedly universal concept ingrained in the
soul of each man begins to take the well-defined shape of merely a village, not to
mention an individual and peculiar posture. The recent events in Anambra State
of Nigeria where the Okija Shrine which has existed for quite a while has been
popularly and unanimously reviled presents itself as an illustration. The dead
bodies, the gory scenes corpses littering every inch of space and the bloodletting
immediately assail the sensibilities of the universe that translate into a
repugnance to natural justice, equity and good conscience. Assuming however
as the Chief Priest says, that the people of the area have always relied on the
efficacy of the shrine, that when two parties reach an agreement they come
before the shrine to swear to their good faith at the pain of death in the event of
fraud, that the shrine merely takes the life of the cheats (who, for added effect,
had given prior consent by the very act of oath taking) but never the innocent
party etc. Regardless of the thinking of right thinking people the world over,
would these process amount to a system of justice that is repugnant to natural
justice, equity and good conscience? If these assumptions were true, then to the
man in that community, Okija Shrine would be a glittering example of natural
justice and everything antithetical to repugnance to it. Thus those people would
not hold those beliefs to be universal. That in itself raises a valid question – these
principles of natural justice, equity and good conscience, are they merely English
beliefs put forward by force and influence as universal beliefs in-built in each
man?
Similarly, the advocacy of legal realism or the expression of the will of the state
by means of the instrumentality of the courts falls upon harsh grounds in Nigeria.
In a situation of anarchy and multiplicity of laws where English law is often in
27
Justice Kayode Eso
Hon. Justice Kayode Eso: Whither Nigerian Jurisprudence, Volksgeist; Paper delivered at the University
of Ibadan, Faculty of Law 2nd Faculty Public Lecture on March 7, 1986, New Nigerian March 22, 1986, p.
12
29
Op. cit.
28
conflict with customary beliefs, are the judges not encouraged to make new law
according, not to their knowledge of it, but to their perception which perception is
in turn shaped by the circumstances of his birth, race, religion and nurture?
Better still, are the judges, never mind their scholarship and erudition, not prone
to errors arising from a lack of conviction in the laws they are supposedly duty
bound to apply? Elsewhere in this study, the concept of political questions has
been enunciated. The Nigerian courts have also applied the doctrine of political
questions and the leader in this department is the decision in ONUOHA V.
OKAFOR & ORS. delivered by the Supreme Court on October 14, 1983. There
the court decided that the courts have no jurisdiction to direct any political party
to sponsor any particular candidate for an election on the ground that it was a
political question and that the answer to the question so raised must be in the
negative for a positive or an affirmative answer will instantly project or propel the
court into the area of jurisdiction to run and manage political parties and
politicians. It asked, ”Can the court decide which of the two candidates can best
represent the political interest of the Nigerian Peoples Party? And it answered,
“In all honesty, the court will in so doing be deciding a political question which it is
ill fitted to do. It is political decision for which in the light of the provisions of the
1979 Constitutuion and the Electoral Act 1982, the political party (whose
sponsorship is desired) is empowered to make”. Indeed this decision was
reached in spite of section 6(6)(b) of the 1979 Constitution30 which extend the
judicial powers of the courts to “all matters between persons or between
government or authority and to any person in Nigeria, and to all actions and
proceedings relating thereto, for the determination of any question as to the civil
rights and obligations of that person” and of Section 236(1) 31 which “Subject to
the provisions of this Constitution and in addition to such other jurisdiction as
may be conferred upon it by law the High Court of a State shall have unlimited
jurisdiction to hear and determine any civil proceedings in which the existence or
extent of a legal right, power, duty, liability, privilege, interest, obligation or claim
is in issue…”.
Persuasive as the apex court was in that judgment, it is submitted that the
“political questions” doctrine was misapplied. The most obvious reason is that the
“political questions” doctrine exists for grievances that arise out of the acts of a
political department. A political party is an entity outside the scope of
government. It is not a department of government much less a political
department. Secondly, the principal guiding light is the advancement of the
doctrine of separation of powers. If the doctrine of separated powers is not put in
something of jeopardy, the political questions doctrine is inapplicable. A political
party is neither an arm of government nor a department of government. How then
does the decision of the court threaten the principle of separated powers?
Thirdly, the issue may be raised much in the same way as a conventional
30
Retained in the 1999 Constitution
Save for the new clause making the High Court’s jurisdiction subject to the exclusive urisdiction of the
Federal High Court in revenue matters in section 251, this is largely retained as section 272(1) of the 1999
Constitution
31
custom, do the rules, regulations and guidelines not constitute convention by
which all the members of the party ought to be legally bound? Fourthly, it clearly
does not come within the formulations so explicitly made by Mr. Justice
Brennan32. On a close examination there must be:
(a) a textually demonstrable constitutional commitment of the issue to a
coordinate political department. Little need arises for further
consideration;
(b) a lack of judicially discoverable and manageable standards for resolving
it. The parties always lay down rules, regulations and guidelines for such
elections popularly called primaries. There it is to be found who can
validly canvass for votes, who can validly vote, by what majority the
winning contestant may emerge etc. clearly there are judicially
discoverable and manageable standards for resolving these disputes;
(c) the impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion. This does not exist;
(d) the impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government. A
decision of the court in disputes of this kind do not run the risk of showing
disrespect for the other branches in the tripartite system knowing as it is
that the political party is indeed not a member of any of the coordinate
branches. The Court in the Onuoha decision indeed, and rightly so,
pointed out that by statute the choice of a candidate for a party was not
reserved for the Electoral Commission;
(e) an unusual need for unquestioning adherence to a political decision
already made. The only argument offered by the Court that betrays a
semblance of this requirement was in the dictum that “the answer to the
question so raised must be in the negative for a positive or an affirmative
answer will instantly project or propel the court into the area of jurisdiction
to run and manage political parties and politicians”33. But on a closer
scrutiny we must submit that there is no unusual need for unquestioning
adherence disclosed in that dictum. The court constantly intervenes in
corporate takeovers and disputes between contending directors and
shareholders of corporations. It has never declined jurisdiction based on
a fear that the court will instantly be propelled into the area of juridiction
to run and manage corporations;
(f) the potentiality of embarrassment from multifarious pronouncements by
various departments on one question. Here again it is needless to stress
that a political party is not a political department. There is no risk of
multifarious pronouncements for the decision to be made is to be by the
political party according to rules laid down by it and subject to the scrutiny
of the courts in the event of the need arising.
Pritchett adds regarding the “political questions’ docrine that:
32
33
Supra
Supra
“Where the authority to make a certain decision appears to have been
assigned by the Constitution exclusively to the Congress or to the
President, the courts will refuse to interfere, although the case may be
otherwise justiciable. The conclusion that the Constitution assigns
authority to solve a particular problem to the two political branches of
government is usually supported by practical considerations. Either the
matter is not one suitable for handling by the judicial methods of taking
evidence and hearing legal arguments, or enforcement of a court order
would require an undesirable degree of interference in the affairs of other
government agencies or for other reasons be unusually difficult”. (Italics
supplied to emphasise the scope of the “political questions” doctrine)
Was Justice Olagunju, no mean jurist, judge of the High Court, justice of the
Court of Appeal and to many, one who could have become the Justice William
Douglas of the Supreme Court unaware of the Obioha decision when he
ventured in 1989:
“For a start, let me examine briefly the basis of the union between law and
democracy. The three major attributes of democracy as described above
form a composite scheme that requires for its operation an arbiter that can
adjudicate on the rights created by the foundation that is prescribed for
any democratic institution. Conflicts arising from either intra or inter
activities of political parties call for adjudication. Objections to the policy of
or a given measure taken by a political party by a member of or a section
of that party is as much a justiciable issue as a controversy over who
between two candidates of opposing parties wins an election in an
inconclusive or disputed poll. Similarly, whether an election is free or not is
a matter that calls for an investigation …
“All these areas of disputation which cut across a broad spectrum of
controversies affecting the activities of the citizenry come within the
preserve of the judiciary with the assistance of the lawyers. They are the
areas that endear the citizens to the law and the cross-roads where the
partnership between the law and democracy is formed”34. (Italics supplied)
Thus judges make law but the application of the “political questions” doctrine
highlights how judges may fatally skew their law making functions. The Obioha
decision has till date received but only faithful adherence from both the apex
court itself and the lower courts. Invariably then, in misapplying judges may make
new law. But that they make all law – that is a bridge too far to cross.
34
Justice S.A. Olagunju: Dilemma of Law in Partnership With Democracy, Paper delivered at the 1989
Law Week of the Nigerian Bar Association, Ilorin Branch on January 30, 1989
It is unclear what exactly propels judges to misapply principles of law in Nigeria.
The quality of legal education has deteriorated. Thus judges may be qualified in
terms of years at the bar but nothing else. Corruption? Everyone knows that
there is corruption running right from admission into the law programme through
the appointing process of judges to the determination of individual litigations and
other disputes. Timid courts that, aware of their shortcomings, are scared to
death of their appointors sometimes even when the appointor takes no notice of
events. It is enough that that much is expected of them.
An inevitable question must be addressed. And that is –to which kind of society is
law beneficial? One such as Nigeria? That poser itself lends fuel to the various
attitudes to law.
In one sense, law is the dictate of reason. Thus law is only aptly law if it complies
with “objective moral principles”35 that can be discovered by natural reason. Thus
positive law is the antithesis of law if it does not appeal to those higher
standards. Instantly, it begs to be said that Nigeria has taken exception to and
exemption from this appeal to higher standards that may not now be located
even by means of the most powerful radar systems. For instance when a public
officer steals public funds or when a contractor bribes publicc officers to influence
the award of a contract in hisfavour, natural reason is inundated with the proverb
that it is the hoe available to us with which we cultivate the soil. Never mind
Jeremy Bentham, Nigeria constitutes a dent on the natural law school of thought.
For if reason has been taken over by the “Nigerian factor” and the nation has lost
the balance between right and wrong, what manner of law will reason dictate?
The positivists view law as the command of the sovereign paying all attention to
the legality, rather than the justice, of a rule and the formal requirements which
sets law apart from other rules of existence. There must be a command. It must
be given by the ruler to the ruled. It must be enforceable by the threat of a
sanction in the event of breach.
The landmark case of LAKANMI & ANOR V. A-G (WESTERN STATE) & ORS.36
is an inevitable case in point. There, a Tribunal of Inquiry into the assets of public
officers of the Western State ordered the Appellants not to dispose of or
otherwise deal with any property standing in their names. The Decree specifically
mentioned the names of the appellants and ousted the jurisdiction of the courts.
The Nigerian Supreme Court held that in so far as the legislation was targeted at
specific individuals and not the generality of the citizenry the Decree became, not
legislation, but legislative judgments and therefore an exercise of judicial power
infringing on the doctrine of separation of powers. The Court further held that as
the Decree was ultra vires the Constitution, the jurisdiction of the court was not
ousted. It is now needless to add that this decision was immediately overruled by
the military authorities in promulgating the Federal Military Government
35
36
Fitzgerald, P.J.; Salmond on Jurisprudence; 12th ed., Sweet and Maxwell (1966); p. 16
(1971) 1 U.I.L.R. 201
(Supremacy and Enforcement of Powers) Decree No. 28 of 1970 which made it
clear beyond any shadow of doubt that a decree is the supreme law over and
above the Constitution.
After LAKANMI37 and the brutal castration of its precedent, the courts turned
largely to understanding decrees to be the commands emanating from a
sovereign. Nowadays, it is of utmost common knowledge that bribes and other
incentives are paid to legislators by various interest groups but particularly the
executive to pass laws. Of course this does not detract from the positive law
theory for it is irrelevant that the law is unjust or falls short in any other facet. But
one need not imagine what manner of society may come of that arrangenemt. It
is to be seen in Nigeria. It is submitted that both in concept, conception and
result, the positive law theory best represents what is practiced in Nigeria. Of
course with the not so peculiar limitation that the positive law theory is not all
encompassing for law must not only be commands but they may also empower
and confer rights. Law is enacted also for the protection of the citizen. And that
protection may not be found in the half-hearted clauses to be found in Chapter
Four of the 1999 Constitution. Thus with the disappearance of reason (a
compelling element of the natural law theory) one may conclude that Nigeria has
sped indefatigably farther away from natural law and inexorably closer to positive
law. This movement in itself is not without justification for in the words of the
positivist scholar Gustav Radbruch:
“Should no one be able to determine what is just, then someone must
determine what is to be legitimate”.
It may be concluded, tongue in cheek though it appears, that positive law
especially as enunciated by Austin reigns supreme like his “sovereign” in Nigeria.
May natural reason be equated with common sense? That question constantly
reverberates where there is reason. And it may more probably be equated with it
than not. Perhaps then, common sense which may at once be delineated as the
epitome of natural law is what Nigeria like all civilizations must strive to infuse its
laws with. William Orville Douglas the erudite jurist and justice of the United
States Supreme Court has famously said:
“Common sense often makes good law”.
“It is submitted that these customary law, and customs of the people, were
only permitted, and did not exist in the real Austinian theory of command,
for the guardian angel was albeit, ‘Imperialism.’ Certainly, and whatever
might have been the guise that might have been employed, customary law
was never the same as common law”.
37
Supra
JUSTICE
Varying views but the idea that most current decimal in any idea of law is justice.
For law is nothing if not a conduit pipe leading to justice. What is justice? Justice
simply means fairness or fair play. In other words “the desire to balance fairly the
needs of the individual against the needs of society plus the desire to find a fair
balance between the interests of one individual and those of another” 38. It is “the
proper administration of laws. In jurisprudence, the constant and perpetual
disposition of legal matters or disputes to render every man his due”39.
“Two conditions are essential to the realization of justice according to law.
The law must have an authority supreme over the will of the individual,
and such an authority can arise only from a background of social
acquiescence, which gives it the voice of indefinitely greater numbers than
those of its expositors. Thus, the law surpasses the deliverances of even
the most exalted of its prophets; the momentum of its composite will alone
makes it effective to coerce the individual and reconciles him to his
subserviency. The pious traditionalism of the law has its roots in a sound
conviction of this necessity; it must be content to lay behind the best
inspiration of its time until it feels behind it the weight of such general
acceptance as will give sanction to its pretension to unquestioned
dictation”40.
What can accelerate this acceptance? In Nigeria’s instance, there is the need,
first and foremost that in the tradition of the LAKANMI decision, there is not one
law for the geese and another for the gander. Laws must not deliberately be
crafted, leaving vacuums and lacunae, for when the need arises for subtle or
worse still, onkus manipulation. As a military Head of State who leaves power
must not promulgate, in a decree handing over power to an interim government,
that in any eventuality power must devolve to the most senior member of the
council knowing who the beneficiary of that clause was, so an anti-corruption
decree must not provide inexplicably that there must be a petitioner before an
allegation of a corrupt offence may be investigated. In the first instance, the most
senior member turned out to be the one who plotted the coup that ousted the
interim government. In the latter case, a not so distinguished senator of the
Federal Republic of Nigeria who addressed a press conference and admitted to
bribing his honourable colleagues to defeat an impeachment move against the
serving President evaded action on account of this most hair’s breadth of
technicalities.
If this anomaly is not corrected, Nigeria will collapse under an invasion of of laws.
“When the state is most corrupt”, said Tacitus, “then the laws are most
multiplied”. That assertion presents for Nigeria only a dilemma of the dimensions
38
The Mitchell Beazley Joy of Knowledge Library: Man and Society, p. 283
Black’s Law Dictionary, 6th ed., 1990
40
Hand, Learned, The Speech of Justice, 1916, p. 16
39
of the chicken-before-the-egg or the-egg-before-the-chicken. Which brought forth
the other – the corrupt state or the multiplied laws? As it is Nigeria overrates the
capacity of law. “Laws can discover sin,” Milton correctly asserted, “but not
remove”.
It is in the light of the foregoing that certain questions need be raised.
Newspapers in Nigeria are replete with law-abiding citizens being slain by agents
of state daily. A few years gone, when some Nigerians were detained in Saudi
Arabia for smuggling cocaine into that Kingdom, the head of Nigeria’s regulatory
drug agency trumpeted that they should consider themselves dead. Where was
the presumption of innocence? Where were the principles of natural justice?
What makes it possible for a dictator who is held responsible for the deaths of
two Nigerian journalists in Liberia to be offered protection in the sleepy haven of
Calabar with utter disregard for the sanctity of the lives of Nigerians contrary to
section 33 of the Constitution? These questions do not canvass utopian
standards but only that until those higher standards are put into contemplation,
law and its acclaimed function will be but only a red herring. This indeed is not a
commercial for natural law as law but rather for the infusion of higher standards,
uninfluenced by vice and corruption, into our law makingprocess. In that sense,
law will still be the command of the sovereign but a command that appeals to
superior reason. As it is wehave demurred to one half of Madison’s admonition
but not the other:
“it may be a reflection on human nature that such devices should be
necessary to control the abuses of government. But what is government itself but
the greatest of all reflections on human nature? If men were angels, no
government would be necessary. If angels were to govern men, neither external
nor internal controls on government would be necessary. In framing a
government whichis to be administered by men over men, the great difficult lies
in this: you must first enable the government to contyrol the governed; and in the
next place oblige it to control itself. A dependence on the people is, no doubt,
the primary control on the government; but experience has taught mankind the
necessity of auxiliary precautions”41.
Perhaps a look at these sequences of conversation between judge and accused
(defendants as the Americans call them) will suffice to convince doubting
thomases that the standards ought to be high indeed:
Mr. Mayberry:
I would like to have a fair trial of this case and like to be granted a fair trial
under the Sixth Amendment.
The Court:
You will get a fair trial.
Mr. Mayberry:
It doesn’t appear that I am going to get one the way you are overruling all
our motions and that, and being like a hatchet man for the State.
41
Madison: The Federalist No. 51
The Court:
This side bar is over.
Mr. Mayberry:
Wait a minute, Your Honour.
The Court:
It is over.
Mr. Mayberry:
You dirty sonofabitch …
and
Mr. Mayberry:
You are a judge first. What are you working for? The prison authorities,
you bum?
Mr. Livingston:
I have a motion pending before Your Honor.
The Court:
I would suggest –
Mr. Mayberry:
Go to hell. I don’t give a good God damn what you suggest, you stumbling
dog.
and
Mr. Mayberry:
You started all this bullshit in the beginning.
The Court:
You keep quiet.
Mr. Mayberry:
Wait a minute.
The Court:
You keep quiet.
Mr. Mayberry:
I am my oewn counsel.
The Court:
You keep quiet.
Mr. Mayberry:
Are you going to gag me?
The Court:
Take these prisoners out of here. We will take a ten minute recess,
members of the jury …
One accused told the court that if he did not gain access to his papers at night,
he would “blow your head off” while another said he would not sit still and be
“kowtowed and railroaded into a life imprisonment”. After the accused caused so
much commotion the courtroom the court framed a charge of contempt against
him and subsequently convicted them.
The foregoing did not occur in a comic strip but rather in a judicial decision 42. The
American Supreme Court held that the insults were highly personal aspersions
and that:
“Insults of that kind are apt to strike ‘at the most vulnerable and human
qualities of a judge’s temperament’ … Our conclusion is that by reason of
the due process Clause of the Fourteenth Amendment a defendant in
criminal contempt proceedings should be given a public trial before a
judge other than the one reviled by the contemnor … In the present case
that requirement can be satisfied only if the judgment of contempt is
vacated so that on remand another judge, not bearing the sting of these
slanderous remarks and having the impersonal authority of the law, sits in
judgment on the conduct of petitioner as shown by the record”.
The above case is recalled to illustrate how a judicial system may proceed for the
dignity of the individual and consequently the greater good of the community.
Sandkuhler has formulated a must list for the preservation of the human dignity:
“The first and most important condition for the maintenance of human
dignity is the safety of the individual and social life. Neither the state nor
the rule of democracy provide this safety per se. In the very first instance,
the most important condition for the maintenance of human dignity is
concretized by the principle of the social state within a democratic
constitutional state. This is linked inexorably to four further conditions:
man’s equality before the law as the second condition, the upholding of
human identity and integrity as the third condition, constraints on the use
of state power as fourth, and respect for the bodily contingency of man as
the fifth condition. Not until all these conditions are fulfilled can the
wordings of the Universal Declaration of Human Rights of 10th December
1948 be considered to be socuietal reality: “All men are born free and
equal in dignity and rights”.
Athens fell to Sparta owing to factionalisation but what about Hitler’s Germany
etc? ., interpose
Common law which is that body of law which is grounded in and has evolved
from custom which has not been specifically legislated.
“A wise man once said, ‘Convention is like the shell to the chick, a protection till
he is strong enough to break it through’”43.
42
43
Mayberry V. Pennsylvania 400 U.S. 455, 91 S. Ct. 499, 27. L. Ed. 2d 532 (1971)
Hand, Learned, The Preservation of Personality, 1927, p. 32