We’re bound in freedom, peace and unity
But something’s fishy about that trinity.
Why not let’s limit the lines to what we agree:
We’re plain bound, to a more or less degree.
PART ONE: WHO IS A NIGERIAN?
Geo-politically, the Nigerian nationality is no different from other African states that emerged through a result of the colonisation process of the late 19th and early 20th centuries. However, Nigeria has a peculiar—and possibly, humourous—feature of being a national entity invented solely for the ease of the British administration. This was the amalgamation of two British protectorates and one colony: the Northern Protectorate of Nigeria, the Southern Protectorate of the Nigeria, and the Colony of Lagos. These protectorates were distinct socio-political entities whose only common factor were their many differences from each other. Nevertheless, these two entities form the basis for the country as it is today. But, is there really a nation called Nigeria? And what are the implications of its existence?
THE COMPONENTS OF A NATION
Since it seems that the Nigerian “nation” is neither an evolution of a people, nor is it a shared migration, or communal settlement, but an amalgamation of people who have nothing in common except a shared name, it stands to reason that we investigate Nigeria’s claim to being a nation. This is relevant for a lot of reasons, the most important of which is the relationship between a nation (as a state) and Law—both international and domestic. Under classic international law, only states had personality in the international legal system and for an entity to lay claim to being a state, there were characteristics it had to feature. Also, it had to be recognised as such by other states. This recognition gives the entity a certain measure of élan which capacitated it to conclude and enter treaties with other states.
However, this legalistic prescription of what makes an entity a state merely reflects positivist and natural law ideologies; and not necessarily the “true” situation. For example, Somalia may be a state in the legalistic sense, but not in the functional sense. Therefore, a proper examination of statehood goes beyond the façade of international law requirements, and examines the claim to statehood from totally different perspectives. In the case of Nigeria, to understand if a national consciousness really exists, we need to distinguish between the individuals, the ethnic groups themselves, the administrative divisions (referred to as “States”), and finally the geographical national entity.
TRIBES AND STATES
As is common in African society, individuals tend to associate themselves with their ethnic groups more rapidly than with any other political community. Ethnic groups are distinguished by their culture, which, in the words of Lasswell and McDougal, refers to “any distinctive and stable pattern of community values and institutions”. However, since the erosion of traditional values and the concretisation of the western style of government—independent of traditional institutions—it seems that emphasis of statehood has shifted from the ethnicities to the wider (if artificial) political idea of a nation. Therefore, Nigerian law does not recognise ethnicity—and nobody is asked to fill an official form asking for “Tribe” anymore.
However, the national entity, in turn, thrusts the responsibility of social solidarity to the hastily and sometimes, shabbily, created administrative entities—Lagos state, Kano state, Delta state—that cut across ethnic lines. Gradually, the law shifted focus to the person’s administrative entity—their state of origin—and this replaced the individual’s ethnic origin. And so, today, ethnic origin has been taken over by state of origin—and individuals from the same ethnicity cherish the sanctity of their respective administrative states, much more than their common ethnicities—the case of Ekiti and Ondo states, being a very good example.
Can we, however, conclude that the Nigerian nation is mere fiction, and that true political solidarity exists only within these administrative states? The answer is negative. There are those who advocate for a Sovereign National Conference solely for the purpose of abolishing the national structure and instituting separate sovereign states along ethnic lines. This view cannot be supported from a sociological point of view since, as stated above, there has been an almost imperceptible, but fundamental shift from ethnic lines to administrative state lines in both social and political consciousness. For example, people do not only clamour for a public official from their ethnicity today—but will also ask for one from their state.
THE NIGERIA WE CREATED
So, where then is the Nigerian “nation” consciousness, if it is neither in the administrative states nor in the ethnic groups? The submitted position is that the Nigerian consciousness is still national—however, it is not based on a constitutional “will of the people” or any other social contract. The nation of Nigeria exists, paradoxically, through the forceful union of its component groups for over 100 years, as well as the shared shock of civil war, military rule, political instability and economic trauma. Nigeria, today, is a creation of time and trauma.
We cannot pinpoint the exact time this Nigeria was birthed, but we can be certain it truly exists.
Nigeria exists, not by virtue of its amalgamation or constitutional document, but by virtue of the shared experience of its constituent components over a period of time. This is the same way a class of students is built over time, and they graduate as a single entity and not just as disparate individuals sharing one building.
Thus, if “Nigeria” is a creation of the process of time and not a mere colonial handover, then it is time for the basic document—the Constitution—and the laws to begin to shed their colonial foundation and focus more on realigning their philosophy with that of the average modern Nigerian that has developed with time.
PART TWO: WHAT IS A CONSTITUTION?
Nigeria has had virtually as many constitutions as she has had political regimes. These are classifiable into the Colonial constitutions (which were more of guiding principles for the British administration than a blueprint for a nation); the Independence Constitutions (consisting of the 1960 and 1963 Constitutions); and the Military Constitutions (which includes the current 1999 Constitution). The irony here is this: other than Macpherson’s consultation exercises in 1948, at no time has a “people-oriented” and “people–determined” democratic constitution been enacted as a framework of government, social solidarity and legal pact. For it to be relevant to the evolving socio-political consciousness, the Nigerian constitutional document has to evolve into a social document and not merely a legal one. Otherwise, we will have the unfortunate situation where the Constitution says one thing, but the people think another.
THE ROLE OF THE CONSTITUTION
The Constitution is the framework of a country’s legal and political structure. If ignored, the legal (and political) structure comes crashing down. The government: its powers, its functions, its responsibilities are outlined by the Constitution. The citizens: their duties and obligations, their rights, are all explained in the Constitution. The Constitution is supposed to be all about the people and their government.
However, a casual examination of the “man in the street” reveals a situation where the average Nigerian is likely to be aware of other aspects of law—contracts, family, administrative—except the constitutional, which is the most important of all.
WE THE PEOPLE…
The Preamble to the 1999 Constitution begins:
“We the People of the Federal Republic of Nigeria, having firmly and solemnly resolved, to live in unity and harmony as … a sovereign Nation…. do hereby make, enact and give to ourselves a Constitution.”
Unfortunately, as stated above, Nigerians did not exactly give themselves such a Constitution, rather it was a military enactment established with a take-it-or-leave-it attitude. Nevertheless, to give the proverbial devil his due, the military constitution as the basis of the Nigerian legal system today may be worth a second look. If a situation (through education reforms) emerges where Nigerians are brought up to understand, acknowledge and respect the Constitution in all spheres of life, then can they truly say “we the people…. give to ourselves a Constitution”. In essence, this military imposed constitution can be adopted and acceded to by the people. On the other hand, as long as a state of ignorance and apathy continues, there can only be a position where the Nigerian flag is more recognised and more respected than the Nigeria Constitution.
The Constitution is the apparent embodiment of all rights. Any right not conferred or recognised by the Constitution, through treaty or local legislation, is no enforceable right. If Nigerians are made aware of their rights “under the Constitution” and are taught that they can only enjoy these rights because the Constitution provides it, and not because the government grants it, then self-worth would reign and the indiscriminate and irrational fear of the government (and its armed forces and police) will subside. A Nigerian, too, will boldly join his counterparts in developed countries to say, “I know my rights”.
The rights to life, dignity of person, personal liability, fair hearing, private and family life, freedom of thought, conscience and religion, are just a few of the rights guaranteed by the Constitution. But the lack of a social constitutional consciousness, unfortunately, makes these rights the privilege of a few.
THE MASK OVER THE GOVERNMENT
Also, a foundational knowledge of the Constitution will unveil the face of the government. The influence of the executive arm is so pervasive that one arm seems to be the government all by itself.
But when the Nigerian society comes to understand that the president, governors and their cabinet ought to be just an arm of government—and not the whole of government, it would make citizens more critical of policies and more disposed to seek remedies in the other arms – the judiciary and the legislature.
This constitutional consciousness would also make the average citizen realise that while there is no direct control—short of voting them out every four years—over the executive arm, there is an indirect control through the legislature—over whom the Constitution gives citizens direct control of removal and recall. The point here is that if the citizens can control the legislature directly, they have indirect control over the executive and the judiciary. They can dictate what policies they want, and which judge they approve of. This is possible by threatening to recall any errant legislator who abandons the wishes of his constituents in favour of personal gratification.
But this scenario is possible if, and only if, the constitutional means of directly controlling the legislature is known—and utilized. Unfortunately, intellectuals who are aware of these are not motivated, or pushed to the wall enough, to make the most of it.
A NEW MODUS OPERANDI
As part of education reforms, constitutional law should be taken out of the lecture halls and into the streets, it should be compulsory knowledge in all sectors of life, a compulsory course in the nursery, primary, secondary and tertiary institutions, and like multiplication tables: served in proportion to the degree of understanding and age of the students. It should stop being treated as an aspect of law, but as the fountain of law—and indeed, of every other aspect of political society. This can only be done by taking it away from lawyers and giving it to the people. It should be a compulsory subject which must be passed in secondary school leaving exams, and as a condition for obtaining university degrees, the higher a person goes academically, the more conscious he should be of the Constitution. It is then and only then that the social consciousness would be awakened to constitutional reality—that it is as real as daily arithmetic.
For those who have left academic study, or who never went through it, there is the mass media, and other forms of information dissemination. Catch-phrases can be coined from constitutional provisions and printed on T-shirts and posters for effective circulation and, in every Nigerian language, the fundamental rights should become street knowledge, something which children can recite as easily as nursery rhymes; non-governmental organizations can take up this challenge. As much money should be invested in political enlightenment as it is in disease control. There is no gain in the body being healthy when the mind is diseased. And if political parties can campaign rigorously for candidates, the government and NGOs too should campaign as rigorously, if not more, to educate its citizens.
A detailed education is not necessary for those outside the academic walls, but basic knowledge should be mandatory. Trade associations and labour unions should have it as part of their articles of association to orient their members on constitutional provisions and its importance to their members.
THE EFFECT OF THIS
When there is a thorough grounding of constitutional law in the intellect of Nigerian society, there will be a re-alignment of the political situation. The social structure will be improved and the intellectual community will be saved a lot of stress. Where the government contravenes the provisions of the Constitution, either by the executive, the legislature or the judicial, it will be the citizens themselves who will enforce the Constitution, and if necessary, by civil disobedience to the government, including spontaneous rallies and protests springing out of a general awareness of what is right and what is not. But until knowledge is acquired, the Constitution is no more than a lame duck.
A BASIC CONCEPT OF SOCIAL JUSTICE
Sociological jurisprudence, of course, is concerned with social justice. But as Lloyd states: in what it consists, and how it is to be attained, views differ. In the Nigerian social and legal setting, things might not be so complicated. The concern of the ordinary citizen is more for the attainment of the basics of life: food, shelter, and good health. His outcry is loudest when he feels these are infringed on. He does not demand the more sophisticated rights (For example, environmental rights, plant and animal rights, as well as social security rights, to name a few) that pervade the western judicial horizon. Social justice is thus confined to the basics: civil and political rights are not even in focus. The citizens would be as equally happy under a military regime as a democratic one if the perceived advantages of the former are higher than that of the latter. Thus, the hearty celebrations when the early democratic republics were ousted, and the weary request for elections when they became overburdening—not to assert democratic rights, but simply to find a better solution.
PART THREE: TO SUE OR NOT TO SUE?
THE AVERAGE NIGERIAN AND THE COURTROOM
However, as Nigerian history shows, the average Nigerian is quick to adjust to changes in socio-legal circumstances. Thus, from regime change to regime change, through coup d’etats and counter-coups, the average citizen keeps on trying to get the essentials of life, and that, in spite of all odds. Unlike his counterparts in the western world who resort to the courts as a way of redressing perceived wrongs, the average Nigerian hardly ever visits the courts except mostly to face a lawsuit from an irate landlord or answer a case of breach of contract from a richer party. The fact is that the judiciary has been abandoned by the ‘common man’ as a temple of last resort in the search for justice. The courts have been left to government, public officers, corporate magnates, and high flying executives, as a battle ground for their affairs which could not be settled over negotiation tables. The criminal court is more suited for the affairs of the average person, and the less privileged, and even then, the court often acts as a punisher, an oppressor, and not a defender of rights, nor protector of the masses.
This state of affairs is a result of several factors, the principal one being that our legal system, and, by extension, the judicial system is not home-grown, but an importation from the western world. The average European or North American is brought up to believe that the courtroom is the last defence for his rights, and he or she would not hesitate to drag a nuclear family member to court over a commercial dispute. The socio-traditional background of Nigeria, which cuts across the myriad ethnic groups, has as one of its basic norms, the sanctity of family relations, and the authority of the family head, and ultimately the ethnic group leader. Thus, the idea of an impersonal court was a strange and foreign imposition.
However, this imposition might have taken root in society if other conditions had been right, but instead, the activities and supervening authority of military rule, commercialisation of the role of lawyers, and ‘executive lawlessness’ contributed to making sure that the courts remained as alien and unapproachable—even far more than when it was first implanted.
The economic factors involved almost make the Marxist theory of law seem highly probable. The economic cost of getting access to the court is not worth the rights infringed, except maybe, as a matter of honour or principle. Thus, the average man would inevitably have to resort to private settlement, or trust in a higher form of justice—whether God or karma.
A MEANS TO AN END
The problem is, therefore, how to rectify this judicial disorder and fill the lacuna between the courts and the fabled man on the street. This is a problem that goes beyond the legal prescriptions of the constitution and reaches right into the street. The solution is neither in amending the constitution to create a higher level of judicial independence, nor in creating more rights of access to courts, but in “de-courting” the courts. A new structure has to be fashioned which would remove the formal and legal barriers (the fees, processes, filings, language, affidavits) between the citizen and the courtroom. The court should be open to the man in the street. A blend should be created between the formalised western system and the traditional informal setting—not just in arbitration and out of settlement cases, but in the entire judicial structure. If the average man can get familiar with the court process (or, as we suggest, lack of process) then the attainment of social justice might well be on its way.
This article, obviously, cannot exhaust all possible problems and questions in the Nigerian socio-legal setting. However, the aim has been to apply sociological jurisprudence thinking to a familiar environment. Instead of seeking the solutions to problems in a closed legal analysis, the point has been to move into the highways and byways and seek out solutions. To adapt Lon Fuller: as we seek order, we can meaningfully remind ourselves that order itself will do us no good unless it is good for society.
Note: This article is adapted from a far longer paper, originally written in 2007: Sociological Jurisprudence and the Legal System by Ayo Sogunro.
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I bet this was ayo’s project topic in the university. You’ve made a trite point, if only relevant authorities would implement this….
Thank you so much for this well-thought-out piece. Funny enough, we had a discussion about the average Nigerian’s attitude to the courts in my Firm yesterday and I can’t but agree with you on “de-courting” our courts. They need to be made more suitable to our socio-economic background in Nigeria.
Honestly? First thing I thought was “boda yi tun ti de!” In-depth. Well thought out. As always.
your “order no good unless good for society” helps me resolve my ambivalence about “order” as a good/virtue. freedom yes, order only when there is too much disorder.
now to read the bulk of it…
and thanks for being a public lawyer
I was wondering the other day – how does the customary court/customary law system work in Lagos and throughout Nigeria? And how does one get to work in that system? What qualifications – book, religion, gray hair, connections, dick, poverty – are required?
It makes no sense that soooo many people are unemployed when so much work lies undone. Retired persons, High emotional-intelligence girls and women, web entrepreneurs, part-time office workers, … can make up a customary court system. We need only define …
The quest for biggest money won’t let people do useful work. You know. They’ll rather be unemployed on the payroll of an oil company…at least do something useful on the side.
Nice blog you havve