The integrity of law
The need to coalesce the law as an instrument of empire-building and colonisation went a long way to assist the evolution of law and its recognition as an autonomous body of knowledge worthy of study. Accordingly, the French Code Civile promulgated by Napoleon Bonaparte as well as Otto von Bismarke’s BGB can, quite frankly, be considered as important landmarks in the evolution, consolidation and autonomy of law in Europe.
In Africa, Asia and Latin America, where Europe had tried assiduously to create colonised areas after its image, law became a veritable tool of expansion, domination and cultural hegemony. Law was imbued with race supremacist tendencies which denied the cultural authenticity of so-called natives whose laws became relegated to “native laws and customs” in an unholy co-habitation with imposed “superior” European laws under the theory of repugnancy which was accorded pride of place vis-à-vis the laws of the indigenous population.
The primacy of the so-called “received law” over the authentic law of the African people cast a pall on the cultural authenticity of the people in the face of imposed European language, food, religion, mode of dressing, social mores and other features of civilisation.
Thus, the notion of law as an autonomous category formed part and parcel of the colonial bequest which the newly independent States had gobbled down without questioning. Not only did our universities imbibe the legal culture of the conquistadores, it was not considered necessary or desirable to interrogate the assumptions underlying the legal concepts we had been compelled to accept without regurgitation which became a notable hurdle along the path of the autonomy of African law. Africans that had trooped to Europe to study law became what Ayandele called “deluded hybrids” or “Afro-Saxons” who became neither Europeans nor truly Africans1 and were essentially casualties of what Olayide Adigun once characterised as the tyranny of imposed paradigms.2
The necessity to reflect on and re-consider legal ideas which have shaped our consciousness becomes paramount in light of the theme of this presentation since we need to wash with cynical acid the underlying assumptions of the ideological apparatus of the domination and hegemony of our erstwhile colonisers in a bid to ensure the authenticity and legitimacy of our existence and role as veritable members of the human race. For, it is a tragedy of monumental proportions that we have continued to mimic the values, nuances and even the paraphernalia of English lawyers many years after their purported exit from these shores.
The Use and Abuse of Law
Going by Fuller’s position that law is the enterprise of subjecting human conduct to the governance of rules,3 it stands to reason that the instrumentalist or purposive dimensions of law need to be fully apprehended in order to have a thorough grasp of law. In the eyes of the ruling class, law is only a means of attaining goals it has set for the society, be it order, control or security of expectations. Yet, it would be myopic to view law only through the eye glass of the ruling class.
Thus, while appeals are frequently made by the lawmaker to such values as the good of society, happiness of the majority and similar utilitarian ends, the fact of the matter is that law, more often than not, mirrors the will and interests of identifiable societal forces masquerading as the common will. While the law embodies technical and value-neutral rules such as traffic laws and safety regulations, majority of rules on matters like property and criminality bear the imprint of class and ideology. Accordingly, it is most hypocritical to pass off law as a conglomeration of objective, ideology-neutral rules aimed at serving the needs and interests of all members of society.
In the Nigerian context, it needs be pointed out that Dr. T. O. Elias was able to analyse the Nigerian legal system such as to extrapolate the country’s jural postulates as adumbrated in his 1970 inaugural lecture titled, “Law in a Developing Society.”4 According to him, the broad tasks confronting Nigerian law were
.To promote economic growth and social well-being;
.To elevate man’s moral nature;
.To unify the several ethnic communities into a Nigerian society; and
. To evolve a common law for the country out of the existing bodies of law.
Although the views of the jurist might appear somewhat dated, they are as insightful and relevant as when they were articulated since the problems of Nigerian law have essentially remained the same even if some of their ramifications have only become accentuated or nuanced.
Few would dispute the thesis that law has played (and continues to play) a veritable role in the task of Nigeria’s socio-economic and political development. The numerous ministries, departments and agencies created by law, pursuant to the country’s development attest to a definitive and active role of law in the scheme of things. In addition, the constitutional requirement to reflect the federal character of the country in public office appointments constitutes a definitive recognition of existing fault lines within the Nigerian federation and a resolve to “carry everyone along” in the gigantic task of administering a diverse multi-ethnic, multi-cultural and multi-lingual country such as Nigeria.
More significantly, ample use has been made of law as the harbinger of state regulation and formulation of both fiscal and monetary policies through the Federal and State Ministries of Finance and Budget, creation and role of the Central Bank as well as numerous agencies such as the Nigerian Industrial Development Bank, succeeded by the Bank of Industry, Agriculture Credit Bank, the EXIM Bank, National Investment Promotion Commission, Company Affairs Commission, Security and Exchange Commission, National Insurance Commission, Nigeria Deposit Insurance Corporation, Assets Management Corporation of Nigeria, Nigeria Export Promotion Commission, National Communications Commission, etc.
Mention should also be made of criminalisation of different acts of misconduct, especially corruption and sundry acts deemed counter-productive and inimical to the economic health of the nation. This is evidenced by the Code of Conduct provisions of the Constitution, the ICPC Act, EFCC Act, the Procurement Act, Money Laundering Act, Fiscal Responsibility Act, Banking and other Financial Institutions Act, aside from the anti-corruption provisions contained in the Criminal Code and Penal Code.
Furthermore, there has been an active role by the Nigerian state in the social and cultural sectors. Numerous legislation had been enacted setting up federal universities and agencies created to oversee different levels of education in the country, not forgetting preliminary actions taken toward establishing a social security network such as the National Pension Commission and National Social Insurance Fund and National Health Insurance Scheme, aimed at providing pension as well as social and health insurance benefits for various categories of employees within the national economy.
However, it needs be admitted that Nigeria is still a far cry from being an industrialized or developed country, with majority of the population living at the subsistent level. Being very much a deformed capitalist state, Nigeria remains very much at the fringes of socio-economic development in spite of the country’s well-known rich endowment in terms of human and material resources.
What is more discomfiting is the extent of manipulation and abuse of law by the political elite, lawyers and the highly heeled whose attitudes and proclivities can quite justifiably be considered as constituting a clear and present danger to the integrity of law. Whereas in what can be described as advanced jurisdictions, there exists a general consensus among the population regarding the role of the law as a problem-solver and the recognition and acceptance of its conflict resolution capabilities, law in Nigeria is still fighting a rear guard battle for general acceptance and recognition of inevitability of its role as the last line of defence against anarchy and chaos in the society.
Oyebode is a professor of law