LIST OF CONTRIBUTORS

Nkiruka Ahiauzu, Esq

Liberalism and the African Legal Culture

Andrew O. Efemini, Ph.D

JOHN RAWLS THEORY OF JUSTICE: LESSONS FOR NIGERIA

G. O. Akolokwu, Esq

Criminality and the Police Force in Nigeria: Obstructions to Administration of Justice in Nigeria.

R. Aduche Wokocha Esq

Transparency, Accountability and Sustainable Democracy in Nigeria

Osita Nnamani Ogbu

Administration of Justice and Nigeria’s Nascent Democracy

Valentine B. Ashi, Esq

Admissibility of Newspapers in Judicial Proceedings: An Evaluation of the Decision In The Case Of Ho V I & S Int’l Ltd

Clifford Anaele Nwanyanwu, Esq.

Constitutional Interpretation in Nigeria: An Appraisal

E. E Akhigbe, Esq.

Protecting the Judiciary – The Contempt Power; Its Use and Limitations: A Human Rights Perspective

Preowei Subai, Esq.

Change in Constitution of A Court and Its Effects on Litigation.

P. O. Tella, Ph.D

Sociological Jurisprudence: A Sine-Qua-Non for Nigeria’s Quest for Stability

R. Aduche Wokocha Esq

Social Organisations, the Law and Development in Nigeria

LIBERALISM AND THE AFRICAN LEGAL CULTURE

Nkiruka Ahiauzu

Lecturer, Department of Public Law

University of Wales, Aberystwyth.

United Kingdom.

Abstract. The classical view among African moral theorists on the conception of the person in African societies is that it is relative to the community thereby endorsing a fundamental aspect of the communitarian critique of liberalism. A strong critique of this position has been put forward, arguing that this view no longer holds true as a result of the influence of colonisation, globalisation and multiculturalism. I intend to show how the tensions within the African communitarian critique of liberalism seem to cast a different light on the Okafor – Olufemi debate on legal positivism. I argue that the existence of received legal narratives have triggered a revolution in the conception of the individual and her relationship with the community.

African Communitarian Critique of Liberalism

It is unclear whether there is a body of knowledge called an African moral philosophy as distinct from the moral philosophy of any other continent. The progression of the thoughts of African theorists on moral philosophy seems to have its intuitive roots in the concept of unanimism.¹ This concept refers to the notion that all individuals in a particular society do not have divergent views on basic issues.² The origin of these beliefs about African societies are varied but have had a strong influence on thinking among African moral philosophers.³ It forms the basis of the strong belief that the individual is socio-culturally defined. This thesis is the dominant idea to which other approaches try to contend with. Its appeal lies in the fact that it is believed to be a distinguishing factor for African societies.

Among the proponents of this dominant idea, which for the purposes of this work, I intend to call the culturally-defined personhood⁴, are Mbiti and Menkiti. There seem to be a slight difference in the approaches of these two theorists. The slight difference is relevant in our understanding of the culturally-defined personhood. While Mbiti⁵ is of the view that the origin of the person is located solely in the community, Menkiti⁶ argues further that the fulfilment of the person lies in the community. According to him,

The various societies found in traditional Africa routinely accept this fact that

personhood is the sort of thing which has to be attained, and is attained in direct

proportion as one participates in communal life through the discharge of the

various obligations defined by one’s stations. It is the carrying out of these

obligations that transforms one from the it-status of early child-hood, marked

by a widened maturity of ethical sense – an ethical maturity without which

personhood is conceived as eluding one.⁷

Menkiti characterises the culturally-defined personhood as a process and a position to be attained through the fulfilment of certain communally-defined obligations. This position of personhood cannot therefore be attained outside the community. While Mbiti believes that the source or the origin of the existence of the person is the community, Menkiti argues that the satisfaction of personhood is completed in the community. This difference is not conflicting but complimentary in nature. Both theorists conceptualise the role of the community in the construction of the person in two ways. While on one hand, the community is the source of existence of the individual, on the other her maturity is brought about by her continual participation in communal rituals.

The proponents of the culturally-defined personhood school are not without their critics. Wiredu⁸ and Gyekye⁹ have offered a strong critique of this position. The critique also has two perspectives. Gyekye replaces the classical conception of communitarianism, which is at the basis of the dominant view, with what he calls a “moderate communitarianism”. The distinguishing factor of Gyekye’s form of communitarianism is the existence of what he believes to be the power of re-evaluation. Bell argues that this capacity indicates the presence of autonomy. Macintyre¹⁰ better puts it as follows,

… the fact that the self has to find its moral identity in and through its

membership in communities such as those of the family, neighbourhood,

the city and the tribe does not entail that the self has to accept the moral

limitations of the particularity of those forms of community.

In other words, although individuals derive their origin from the community, they retain what Korsgaard¹¹ refers to as the capacity for reflective endorsement. According to Gyekye¹²,

The reevaluation may result in the individual’s affirming or striving to amend

or refine existing communal goals, values and practices; but it may or could also

result in the individual’s total rejection of all or some of them. The possibility of

reevaluation means, surely, that the individual is not absorbed by the communal

or cultural apparatus but can to some extent wriggle out of it; it means, also, that

the communal structure cannot foreclose the reality and meaningfulness of the

quality of self-assertiveness that the individual can demonstrate in her actions.

The capacity for self-assertion that the individual can exercise presupposes,

and infact derives from, the autonomous nature of the person. By autonomy, I do

not mean self-completeness but the having of a will, a rational will of one’s own,

that enables one to determine at least some of one’s own goals and to pursue them,

and to control one’s destiny.

The autonomy proposed by Gyekye waters down the claim to heteronomy by the proponents of the culturally-defined personhood school. But he does not in his use of the term autonomy mean the Kantian characterisation of autonomy. Gyekye does not conceptualise the person as being the author of a moral law to which his bound. He rather emphasizes the Korsgaardian capacity for reflective endorsement and rejection. This is a middle road between autonomy and heteronomy. Gyekye does not argue the other extreme of Kantian autonomy but emphasizes the individual’s right of reflective activity. In culturally-defined personhood school, the capacity of the individual to reflect is irrelevant and she is therefore denied the right of reflective endorsement. This capacity or right exists only as part of the role of the community and not the individual. Gyekye’s emphasis on the reflective ability creates a right in the individual of the use practical reason to construct her moral identity.

Another consequence of the critique of the school is the shift in the location of the normative question. The existence of the right of reflective activity affects thinking on the source of the individual’s obligation with relation to issues of morality. The justification for the claims that morality makes on persons is easily identifiable as the community thereby entailing moral realism. The responsibility for morality thereby lies with the community. Within this responsibility, law and coercion are justified. The problem with moral realism, which Korsgaard rightly identifies, is its unclarity even though it has been qualified by modern realists as something more identifiable. The presence of autonomy and the normative question indicate deeper conflicts between the two positions. While the culturally-defined personhood school entails Hegel and communitarianism, what for the purposes of this work we call the morally-reflective personhood school entails Kant and liberalism. These deep conflicts feature in the juxtapositional existence of the received English law and customary law as operative in post-colonial societies like Nigeria. At the basis of both realms are conflicting conceptions of the person – one as culturally defined and the other as a morally-reflective.

A stronger critique is offered by Wiredu. Here, we find the difference within this school. He is of the view that the classical view of communitarianism held unto by its proponents has been threatened by industrialization and urbanization. According to him,

The integration of individuality into community in African tradition society is so

thoroughgoing that, as is too rarely noted, the very concept of a person has a

normative layer of meaning. A person is not just an individual of human

parentage, but also one evincing in his or her projects and achievements an

adequate sense of social responsibility… One of the greatest problems facing

us in Africa is how to reap the benefits of industrialization without incurring the

more unlovable of its apparent fallouts, such as the ethic of austere individualism.

A notable aspect of Wiredu’s critique is that he does not ignore the effect of globalisation in the constitution of the conception of the person. He notes the influence of external cultures in the formation of the moral character of the individual. Within the African individual is therefore more than one culture that determine his moral identity. Therefore while in the culturally-defined personhood school, Menkiti admits the influence of only one culture, proponents of the morally-reflective personhood school appreciate the influence of a multiplicity of cultures.

Certain aspects of the liberal culture of which individualism is a distinguishing factor, have permeated into African societies through the received law of former colonial masters, which for the purposes of this work, we refer to as legal narratives. The term is used to characterise written and unwritten received English, French and Islamic law.

Firstly, human rights have replaced the fulfilment of communal obligations for the constitution of the self as Menkiti argues. The individual in African society is constituted by the rights has outlined in the constitution that governs the society. Section 34 of the Nigerian constitution guarantees the individual’s right to human dignity. In order to assert these rights, he uses the apparatus of the judiciary as empowered by the constitution. The apparatus for the enforcement is created by section 230 of the same constitution. As has been rightly noted by Woodman, the existence of human rights in traditional African societies seems unclear as a result of the absence of the forum and apparatus for their enforcement as part of the political system.

Secondly, liberty and not obedience to the community has become an underlying legal norm. Section 35 of the Nigerian constitution guarantees the right of personal liberty. This is the enabling right for the other rights to freedom of thought, freedom of _expression and the freedom of movement among others. Four out of the eleven rights listed in the chapter on fundamental rights are grammatically preceded by the phrase, ‘right to freedom of/from’ indicating the right to freedom to be the enabling right. Most constitutions of modern democracies in Africa condemn the denial of freedom of a person without lawful justification. Section 41 of the Nigerian constitution only allows the curtailment of the right to freedom of movement in certain exceptional cases.

Thirdly, the primacy of justice and not the will of the gods or the common will is the first virtue of social institutions. Among the list of national ethics in section 23 of the Nigerian constitution, is social justice. Also the constitution is supreme as is stipulated in section 1(1) of the same constitution. All African constitutions have the supremacy provision. Public officers when being inducted into office take oaths based on the constitution and not out of fear of incurring the wrath of the gods. The oaths of allegiance as set out in the seventh schedule of the Nigerian constitution do not contain any other object of allegiance outside the State.

The existence of the rights of dual citizenship and renunciation of citizenship as provided for in sections 28 and 29 of the same constitution also seem to threaten the premise of the culturally-defined personhood school that the self is derived and completed in the community. Dual citizenship allows a person to belong to two societies who more often than not have different and sometimes conflicting norms. This provision threatens the necessary monistic element of the school. If the community is the source of the self then there should be only one such community occupying this position. Also this would create the impossibility of a renunciation of such a position as suggested in section 29.

Although it seems that the constitutions display the predominance of the liberal culture, there are some inherent conflicts. For instance section 24 of the Nigerian constitution dealing with the duties of citizens states,

It shall be the duty of every citizen to

interests of others and live in unity and harmony and in the spirit

of the common brotherhood.

Under the chapter of the same constitution concerned with fundamental human rights, section 34(1) states,

Every citizen is entitled to respect for the dignity of his person, and accordingly

For the purpose of subsection (1) (c) of this section, “forced or compulsory labour”, does not include,

(e) any labour or service that forms part of –

normal communal or other civic obligations for the well-being of the community.

Both sections read together seem to suggest a communitarian curtailment of the received liberal culture. It is also unclear what is meant by the use of the term ‘common brotherhood’ in section 24(c). The manner in which the phrase is used suggest the existence of an identifiable social institution of that nature to which every activity most conform to.

¹ Bell, R. Understanding African Philosophy: A Cross-Cultural Approach to Classical andContemporary Issues. Routledge: New York and London. 2002. 62.

² Hountondji, African Philosophy, p. xviii, as referred to in Bell.

³ This description of unanimism is drawn from Hountondji, African Philosophy. Xviii. Bell traces this thinking to Placid Temples’ opinion that all Bantu-speaking peoples have a shared African view of the world. For an application of this notion, see Mbiti, J, African Religions and Philosophy. London: Heinmann. 1969.

⁴ Bell calls it the socialization view.

⁵ ibid, p. 108f. He uses the statement, “I am because we are: and since we are, therefore I am” to illustrate his view.

⁶ Menkiti, I, “Persons and Community in African Traditional Thought,” in African

Philosophy: An Introduction, 3^rd edition, ed. Richard A. Wright. Lanham, MD:University Press of America, 1984. 176

⁷ I argue elsewhere that this perception of the person as based on the fulfilment of obligations is the basis of the difference in the socio-cultural construction of male and female members in traditional African societies. “Women and Development in African Societies”, paper delivered at a Scaleworths Seminar in PortHarcourt, Nigeria. 1999.

⁸ Wiredu, K. “Cultural Universals and Particulars” in Coetsee and Roux, The African Philosophy Reader. Routledge: London and New York. 1998. 31.

⁹ Gyekye, K. “Person and Community in African Thought” in Coetzee and Roux. 318ff.

¹⁰ Macintyre, A. After Virtue. London: Duckworth. 1981. 205.

¹¹ Korgaard, C. The Sources of Normativity. Cambridge: Cambridge University Press. 1996. 49.

¹² Gyekye, K. Tradition and Modernity: Philosophical Reflections on the African Experience.

Oxford: Oxford University Press. 1997. 50

JOHN RAWLS THEORY OF JUSTICE: LESSONS FOR NIGERIA

Andrew O. Efemini, Ph.D

Senior Lecturer

Department of Philosophy, University of Port Harcourt.

& Senior Research Fellow,

Centre for Advanced Social Science, Port Harcourt

INTRODUCTION

The central argument of this paper is that Rawls ‘Original Position’ and his two principles of Justice have far reaching implications for Nigeria. The original position if purged of its idealism, translates to a Sovereign National Conference which will then form the basis of the rebirth of the Nigerian State through a new social contract just like the Philadelphia convention of 1787 which led to the birth of the United States of America. The two principles of justice clearly encourage the creation of a welfare state which will respect basic liberal and economic rights of Nigerians.

In this paper we shall restrict ourselves to A Theory of Justice. The fact is that Rawls has come to realize that the type of consensus he envisages in A Theory of Justice is difficult to come by. We should bear in mind that in this first work he thinks of men in the original position as possessing enough intuitive power to appreciate why the two principles of justice are inevitable. However in Political Liberalism and Law of Peoples he recognizes that pluralism cannot be managed in as simplistic a manner as it is enunciated in his first work. The value of the first work remains in spite of these developments. We are basically interested in his procedure for arriving at a just society and the overall normative content of his theory.

Rawls’ Theory of Justice

Rawls’ theory represents an attempt to formulate a general theory of justice in which he conceives the primary subject of justice to be the basic structure of society, or more precisely, how major social institutions distribute fundamental rights and duties and determine the division of advantages from co-operation of every member of society.¹Major social institutions for Rawls refer to political constitutions and the principal economic and social arrangements.

Rawls’ theory of social justice concentrates on the basic social institutions because he feels they are crucial or fundamental elements that affect the entire society. As he puts it “The major institutions define men’s rights and duties and influence their life prospects, what they can expect to be and how well they can hope to do.”² It is obvious that political constitutions and economic and social arrangements are important yardsticks for evaluating modern states. To appreciate the point Rawls is making, let us imagine a war-ravaged society with no constitution and basic means of sustaining life. It will be difficult if not impossible to live in such a society.

In his theory of justice, Rawls adopts the social contract approach which requires that individuals give their consent to constitutional arrangements and other major social institutions. This is consistent with Rawls conception of justice as fairness. Rawls distinguishes between Justice and Fairness, although they share a fundamental element in common which he calls reciprocity.

The major difference is that in justice we have no option whether to engage in it or not, and one must play his part but in fairness there is an option and one may decline the invitation. In justice as fairness, Rawls gives an indication that the parties would readily offer their consent to outcomes of their deliberations before the agreement would be valid.

While adopting the social contract approach, Rawls uses the device of an ‘original position’ which corresponds to the state of nature of traditional social contract theorists. The original position, however, has a unique feature of being imaginary or hypothetical. It never really existed according to Rawls. Let us pay some attention to the original position.

Original Position

In the original position, parties concerned with choosing principles of justice that would lead to a ‘well-ordered-society’ are brought together. Here we imagine individuals who come together to form a social contract. Rawls’ use of the original position was first presented in 1958 and was developed later in great and explicit detail in a Theory of Justice.³ The major task for Rawls in the original position is to set conditions for meaningful and fair bargain by parties who want a just society.

Certain assumptions are made about persons in the original position. Persons in the original position are rational. They are of ordinary level of intelligence, with no super types among them. Rawls’ effort here is to create an initial situation of equality, which will permit fair deliberations.

The persons in the original position have their individual plan of life. They are able to decide what is good for them. In cases where a person’s reason is impaired by one weakness or the other, the principle of paternalism comes to play its role. Paternalism is the practice of governing or controlling people in a father–like manner. Persons interested in justice know that they have a duty to themselves and others. Hence if by accident any person is disabled, others are to act for the person according to his or her preferences. If this is not possible because of their limited knowledge of the preferences of the person concerned, they are to act for the person as if they are acting for themselves.⁴

The principle of paternalism attempts to create a humane original position. Rawls also makes use of the same principle to argue for equal respect for all persons in that position. In this regard Vinit Haksar praises him:

One of the charms of Rawls’ model is that it tries to ensure

that all human beings, including weak ones, get a fair deal.

He constructs an imaginary or hypothetical social contract,

which assumes that every human being is due equal respect.⁵

Rawls proceeds to set the stage for impartial negotiations in the original position.

The parties in the original position are self – interested and mutually disinterested. This does not mean that the parties are selfish or egoistic. Selfish and egoistic tendencies would raise the feeling of envy which Rawls insist is absent in the original position. The parties are simply expected to seek their advantage in the scheme of things. The parties in the original position are neither moved by the feeling of affection nor bitterness towards each other. Everyone wants to make maximum gains from what is available.

To further strengthen their sense of justice and to ensure fairness, Rawls places the parties in the original position behind a veil of ignorance. The essence of the veil of ignorance is to eliminate those specific circumstances or conditions, which tempt men to exploit social and natural circumstances to their own advantage.

With the aid of the original position, certain information is kept out of the reach of parties in the original position. No one is aware of his future in the distribution of natural assets and abilities, nor does any one know his conception of the good, the particulars of his rational plan of life or his place in society. The parties are ignorant of their future sex- that is they do not know whether they will become male or female. But they know that they have equal chance of becoming either male or female in their future society.

J. Diggs offers the following reasons why he thinks Rawls introduced the veil of ignorance:

So that all persons will be treated equally as persons, no one having

a threat advantage (derivative from natural talents or social position)

… in order to get a determinate solution to the question- what are the principles

of justice?⁶

The reasons advanced by Diggs are quite plausible in the light of Rawls’ theory of social justice.

The veil of ignorance establishes a benchmark of equality in the original position. Persons operating behind a veil of ignorance need not fight tooth and nail to ensure that the principles of justice favor them. This is because until the veil of ignorance is lifted at the end of negotiation, the parties would not know their final positions.

Before proceeding to examine the two principles of justice, let us summarize the essence and role of the original position in Rawls theory of Justice with the following remarks by Thomas Nagel. According to him “It is merely a way of recalling someone to the kinds of moral judgement he would make in the absence of distorting influence derived from special situation.”⁷ What principles of justice follow from Rawls strict conditions in the original position?

Two Principles of Justice

Rawls advances the following two principles of justice as those parties in the original position would finally consent to:

First principle:

Each person is to have an equal right to the most extensive total

system of equal basic liberties compatible with a similar system

of liberty for all.

Second Principle:

Social and economic inequalities are to be arranged so that they are both;

(a) to the greatest benefit of the least advantaged

(b) attached to offices and positions open to all under conditions

of fair equality of opportunity.⁸

The first principle is known as “equal liberty principle” while the second is known as the “difference principle.” Rawls assigns priority rule for these principles by maintaining that they are to be ranked in lexical order. The first has priority over the second.

The Equal liberty principal clearly presents Rawls as a liberal. Brian Barry for example has described Rawls account not as ‘a’ but ‘the’ liberal theory of justice. Barry’s reason is that:

The essence of liberalism is the vision of a society as made

up of independent autonomous units who cooperate only

when the terms of cooperation are such as to make it further

the end of each of the parties; which vision Rawls presses to

its logical limit by his first principle of justice.⁹

What liberties are recognized by Rawls first principle? The liberties are those that are familiar to us. These include political liberty. Under political liberty we have right to vote and right to be voted for. We also have freedom of speech and assembly. Rawls also mentions liberty of conscience, freedom of thought, right to life, freedom to hold (personal) property and freedom from arbitrary arrest.

The denial of equal liberty can be defended only if it is necessary to raise the level of civilization so that in due course these freedoms can be enjoyed. Liberty for Rawls can only be sacrificed for liberty and not for economic gains.¹⁰ This is one reason why Rawls is regarded as an anti- communist. Generally, communist governments tend to restrict basic rights as a means for regulating opposition to the system.

The difference principle is concerned with how benefits and burdens of social cooperation are to be shared. The principle states conditions under which inequalities could be justified in society. Those in the original position would allow only inequalities that will work for the advantage of every person. Man has an intrinsic worth and Rawls recognizes this fact. That is why he insists that unless every man’s interest is protected, we cannot arrive at an adequate conception of justice. This is consistent with his view that “Each person possesses inviolability founded on justice that even the welfare of the society as a whole cannot override.”¹¹ This is one statement that should influence those in the original position.

Every member of the original position must be convinced that any inequality will benefit him. Unless this is done, he cannot give his consent to the agreement. As a justification of his second principle, which allows for inequalities, Rawls asks “If there are inequalities in the basic structure that work to make everyone better off in comparison with the benchmark of initial equality, why not permit them.¹²Rawls argues further that whatever immediate gains or benefits a greater equality might allow can be regarded as intelligently invested in view of its future return. Rawls specifically recommends that social and economic inequalities are arbitrary unless they lead to the greatest benefit of the least advantaged members of the society. Rawls talks about least advantaged rather than disadvantaged members of society.

One other condition attached to the principle is that social and economic inequalities should be attached to offices and positions open to all under conditions of fair equality of opportunity. In a just society, there should be opportunity for those in the lower class to climb to the higher class. In defense of the importance of equality of opportunity Michael E. Levin offers the following remarks:

Equality of opportunity is important because, everyone

accepts it as a normative principle “all should have equal

opportunity”, whether for jobs or for the other good things

of life. That a society interferes with or prevents equal

opportunity is a legitimate criticism of it.¹³

The truth is that equality of opportunity is normative in the sense that it has a deontological value. It is taken to be good without regard to consequences. The content of equality of opportunity is however a subject beyond this paper.

Before proceeding to look at the implication of Rawls’ theory for Nigeria, it is important to carry out a brief evaluation of the theory. Rawls’ theory did not envisage a society with underdeveloped economy. In other words, his commitment to a society with least advantaged and not a disadvantaged person is predicated on the possibility of an economy that can provide for its citizens. His commitment to a society where every person is well off is really a basic requirement for winning the consent of parties in the original position. Given the hypothetical nature of the original position, it is only natural that we see commitment to a society where there is no loser as a moral imperative. It is a standard that must be sought by all societies.

Lessons for Nigeria

Rawls’ theory of justice has several implications for developments in Nigeria. In the first place, his vision of a society where nobody is left behind or where no members are disadvantaged is a call to duty for all Nigerians. This position is a very important normative goal that we must take seriously if we are to experience sustainable development. It is a fact of live in Nigeria to see hundreds of people begging for basic subsistence in the midst of plenty. There is no discernible commitment to Rawls’ view that each individual has an inviolability founded on justice that should not be violated even on account of promoting the general good except where such violations is as a result of punishment for crimes against the state.

There is a relationship between Rawls’ commitment to the welfare of each member of society and social mobilization. Mobilization in this case is a function of the feeling from members that they have a stake in social cooperation. If a society strives to meet the basic welfare of all its members then it is likely to win the loyalty of such members all things being equal. We should bear in mind that social mobilization is a necessary element or condition for realizing sustainable development. If a people are not mobilized then they cannot give their best in terms of their material and human resources. The position being canvassed is based on the belief that:

Development is not a project but a process. Development is the

process by which people create and recreate themselves and their

life circumstances to realize higher levels of civilization in accordance

with their own choice and values.¹⁴

Development is about what people can do for themselves with or without support from others. Commitment to each individual is important for not only social mobilization but also social cohesion.

Rawls talks about the relationship between a well-ordered society and the public conception of justice. He argues that a well-ordered society is regulated by the public conception of justice. If certain members of a society perceive such society as unjust, the tendency is for them to be inclined towards disruptive behavior. This type of behavior will tend to affect social stability and security. Rawls is convinced that a well-ordered society is one that promotes the welfare of all its members. This type of society he argues is more likely to endure over time. He continues:

One conception of justice is more stable than another if the sense

of justice it tends to generate is stronger and more likely to override

disruptive inclinations and if the institutions it allows foster weaker

impulses and temptations to act unjustly.¹⁵

State managers in Nigeria need to note the fact that without commitment to the search for justice, peace and stability will continue to elude the country. In the above quotation, Rawls tries to establish a connection between psychology and moral ideal. Is it possible to explain the numerous social tensions in the country as attempts by Nigerians to reject some of the unjust social order?

Rawls’ commitment to basic human rights is also worth noting. It is true that he gives priority to social and political rights over and above economic rights. This is not likely to be acceptable in the Nigerian situation because the majority of the people are confronted with economic survival. His lexical ordering of the principles of justice presupposes the existence of a society where basic needs are no longer the issue and this ordering should not be taken seriously by people who live in extreme poverty. Rawls takes for granted that people should be provided the means to successfully pursue their plan of life. We must appreciate that society is only possible if people give implicit consent to the sustenance of the system. There is no way we can demand the continued loyalty of people to a system that relegates their welfare to the background.

The original position has serious implications for developments in Nigeria. In the first place, it reminds us that there is the need to enter a proper social contract that will be fair to all the parties. In other words, according to Rawls’ argument, the system that we seek to develop should not produce winners and losers. The fact is that certain qualities need to be established in the bargaining process. These have been identified to include; impartiality, mutual disinterestedness, sufficient understanding of economic and political matters, and rationality. The vital role of the veil of ignorance in the original position should remind us of Rawls’ strict commitment to impartiality. If people do not know what they will become after leaving the original position then there is a tendency that they will strive to build a system that protects everybody not identically but with strict commitment to equal dignity for all men.

It is logical to conclude that the outcome of negotiations in the original position will be reflected in the letters and spirit of the constitution that will guide any actual society. The issue of constitution is taken seriously because a constitution can be likened to the blood of an individual. The individual needs pure and uncontaminated blood to live a healthy life or even to survive. In the same vein every modern state needs a good and functional constitution which clearly spells out the ideals and fundamental principles of state policy. A constitution actually is supposed to represent the basic dreams and aspirations of a nation.

Nigeria no doubt has serious need for a new constitution that is consistent with the General Will of the people. A constitutional conference is advocated as a way of bringing about minimum standard of negotiation as indicated by Rawls’ original position. The constitutional conference is not one that will be hijacked by ethic warlords or those committed to parochial interests. We should bear in mind that fairness requires that we remember the golden rule or Immanuel Kant’s moral maxim- the Categorical Imperative.

The golden rule demands that we do unto others, as we would want them to do unto us. Imagine if we act on this rule all the time. Clearly our conscience will be on line most of the time. Our sense of duty will also be tested to the fullest. The two formulations of Kant’s categorical imperative reinforce the need to strive for the good based on the good will. The first formulation demands that we “act only on that maxim whereby thou canst at the same time will that it should become a universal law”¹⁶ Popkin and Stroll offers a useful interpretation of the first formulation of the categorical imperative. In their words:

Kant means by this statement that a person should always act as

if every action were to become a universal law. Thus no person should

steal, because if he/she were to steal and if everyone were to steal (if

stealing should become a general rule) then moral relations based upon

the possession of private property would be impossible.¹⁷

The second formulation of the categorical imperative enjoins us to “act as to treat humanity, whether in thine own person or in that of any other, in every case as an end withal, never as a means only.”¹⁸ The following comment by Stroll and Avrum on Kant’s second formulation of the categorical imperative is quite instructive:

This formulation of the categorical imperative has a long tradition

in the history of ethics. It is another way of stating such maxims as

‘Do unto others as you would have them do unto you’. It is an injunction

to us to respect other people because they are rational human beings like

We should treat others as ends in themselves because that is how we

regard ourselves.¹⁹

The reality of an application of the basic tenets of the original position is that disputes facing Nigerians will be treated with significant empathy. As a matter of fact most of these disputes have remained intractable because of extreme selfishness- a quality that is inimical to fair bargain.

It is arguable that any constitutional arrangement that is adopted in the constitutional conference for Nigeria following the principles outlined by Rawls will be federal in character. Clearly if Nigeria adopts a federal constitution which is the logical thing to adopt then issues such as citizenship rights, resource control, religious pluralism, and political participation will be handled in ways that are different from what we have. In Nigeria, there is really no citizenship right. To appreciate the point we are trying to make, let us briefly examine the ideas of Olufemi Taiwo on the issue of citizenship.

Taiwo made a distinction between citizens ‘of’ and citizens ‘in’ in Nigeria. According to him, “there are no citizens ‘in’ Nigeria; we have citizens only ‘of’ Nigeria”²⁰To be a citizen ‘of’ is not complex at all. It is a matter of origin, or right conferred on one by a state. A constitution defines who a citizen of Nigeria is. Birth or naturalization can confer citizenship of Nigeria on somebody. Taiwo insists that the notion of citizenship confers little on anybody because all that is required is having the necessary document (e.g. passport) whether obtained legally or illegally.

On the other hand, being a citizen in Nigeria transcends the acquisition of passport; it transcends having birth place or naturalization rights. On paper one is citizen in Nigeria but in reality and practice this is not the case. One’s family ties should not be used to define citizenship in a modern state. On this matter Taiwo states:

A defining feature of citizenship, especially in the modern state,

is its portability: you can take it with you, you can shed it and acquire

another; you can even have a multiplicity of it. What maters is that

citizenship, as Rousseau said, is a right, not a virtue and once you

acquire it, it comes with a plethora of rights, privileges, immunities,

and burdens.²¹

The implications of the citizenship problem in Nigeria are disturbing. In the first place, the commitment of Nigerians to their immediate environment of habitation will be affected by their being conscious of the fact that they have a home other than where they are staying. Attitudes towards taxes by the so-called non-indigenes are usually negative.

It is in religion that the citizenship question is most pressing. When the argument for neutrality of the state on religious matters is put forward, there is an implicit assumption that anybody living in Nigeria has the right to move or change residence at will. That means a rejection of arguments by those who are quick to make the point that over 90% of residence of a state are members of a said religion. This fact it is argued makes it a duty on their part to establish the sharia legal system for instance. The fact that the majority of the people living in an area are Moslems cannot be used as sufficient ground to justify the imposition of sharia in certain parts of the country.

To justify the imposition of sharia on the basis of population calculations is to justify the fact that a group of Nigerians can have exclusive claim to ownership of the affected states and that others must recognize each time they visit the sharia states that they are visitors. Even the so-called indigenes of the affected states would have to adjust to a restricted sense of citizenship if they are not Moslems. This is capable of breathing tension, resentment, antagonism, conflict, violence, and alienation. The need to eliminate these negative vices possibly led to Rawls’ insistence that the parties in the original position should be under a veil of ignorance. This will promote disinterestedness in the conduct of public debates.

Rawls’ theory of justice anticipates a liberal society and liberal democratic political system. What does this imply? It implies that the individual is and should be the ultimate judge of his good and he or she should be allowed to exercise the basic rights due human beings without undue interference of the state. Individuals should be protected from comprehensive views of the world that runs counter to basic human rights. How do you justify the fact that people are not free to consume certain things within a city just because a certain comprehensive view of the world is against the practice? Each person should be encouraged to live in any part of Nigeria and practice any religion of his choice.

The economic implication of an adoption of Rawls’ theory for Nigeria is fairly predictable. He makes the point that market institutions are common to both private-property and socialist regimes. Given his emphasis on individual rights over and above the need to satisfy the general good, Rawls clearly would favor a market economy. He prefers a private property system because this system is compatible with the equal liberty principle. Individuals must be free to choose whether to work and what type of work to do. It is only a private property regime that can guarantee this.

We should recall that the ‘difference principle’ is about social and economic inequalities. The principle is about the problem of distributive justice. Rawls argues that the problem of distributive justice is about how to choose a social system that is just by virtue of its fair procedural elements. The goal is to set up a social system that guarantees fairness to all consistent with fair equality of opportunity. Efficient implementation of price system will promote the workability of a competitive market economy. To promote fairness, the price system must be complemented by appropriate stabilization polices. This is usually achieved through taxation and subsidies.

Through taxation and subsidies, government is able to raise the resources needed to satisfy the difference principle. It is common knowledge that human beings do not have the same abilities and that circumstances of life are not identical. A strict implementation of the price system will produce advantaged and disadvantaged members of society. Rawls’ view is that parties in the original position will not give their consent to any arrangement that will produce disadvantaged persons.

Nigeria has much to gain from an adoption of Rawls’ views on the economy. We do not have an economy that is based on an efficient price system. This means we do not have an efficient competitive economy. As a matter of fact, Rawls’ theory of justice anticipates a diversified industrial economy. Only such an economy can provide gainful employment to a majority of the citizens. The truth of the Nigerian economy is that it is heavily dependent on peasant farming and the oil sector. To realize Rawls’ ideals appropriate steps must be taken to industrialize the agricultural and manufacturing sectors. This is a precondition for realizing a welfare state which takes care of the least advantaged members of society. It is the responsibility of the welfare state to impose appropriate taxes that will facilitate the promotion of fair equality of opportunity.

Conclusion

Rawls theory of justice remains a classic theory committed to the creation of a liberal social order. It is committed to a liberal social order because he insists that the right of each individual in society is not negotiable. In other words, the right that each person has to enjoy the benefits of freedom or liberty is not subject to any compromise. We must recall Rawls as having said that each individual has an inviolability founded on justice which the welfare of society as a whole cannot violate.

It is the same commitment that he extends to the economic sphere where he argues for a system that will produce no disadvantaged but only least advantaged members of society. We argued in this paper that Nigeria stands to gain from a critical look at Rawls' theory. Such gains will come from an emulation of his negotiation procedure as outlined in his arguments for the original position. Specifically, Nigeria should strive for a new constitution that represents the General Will of the people. We have need for democratic governance as a way of protecting the gains of the agreements reached after the fair bargain. Finally it is expected that the economic arrangements that will follow from the new constitutional order will be welfare oriented and private sector driven.

NOTES

John Rawls,A Theory of Justice (London: Oxford University Press, 1973) p.7
Rawls,A Theory of Justice (London: Oxford University Press, 1973) p.7
Norman Daniels (ed.),Reading Rawls (Oxford: Basil Blackwell, 1975) p.1
Rawls,A Theory of Justice (London: Oxford University Press, 1973) p. 209
Vinit Haskar,Equality, liberty and Perfectionism (New York: Oxford University

Press, 1979) p.162

B. J. Diggs, “A contradiction View of Respect for Persons”American Philosophical

Quarterly vol.18 No. 4, 1981, p.281

Daniels,Reading Rawls p.5
Rawls,A Theory of Justice p.302
H. D Lewis ed.Contemporary British Philosophy (London: George Allen & Unwin 1976) p.75
Rawls,A Theory of Justice p.302
Rawls,A Theory of Justice p.3
Rawls,A Theory of Justice p.151
Michael E. Levin, “Equality of Opportunity”The Philosophical Quarterly vol. 31, No 123, April 1981, p.110
Claude Ake,Democracy and Development in Africa (Washington D.C.: The Brookings Institution, 1996) p.125
John Rawls,A Theory of Justice ( Cambridge MA.: The Belknap Press of Harvard University Press, 1999) p.398
Richard H. Popkin and Avrum Stroll,Philosophy Made Simple (London: Heinemann,1986) p.46
Popkin and Stroll,Philosophy Made Simple p.46
Popkin and Stroll,Philosophy Made Simplep.46
Popkin and Stroll,Philosophy Made Simplep.47
Olufemi Taiwo, “Of Citizens and Citizenship” in Sylvester Odion-Akhaine (ed.)

Constitutionalism and National Question (Lagos: Centre for Constitutionalism and Demilitarisation, 2000) p.88

Taiwo “Of Citizens and Citizenship”, p.88

CRIMINALITY AND THE POLICE FORCE IN NIGERIA: OBSTRUCTIONS TO ADMINISTRATION OF JUSTICE IN NIGERIA.

O. AKOLOKWU, ESQ

LECTURER DEPARTMENT OF PRIVATE AND PROPERTY LAW,

RIVERS STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY,

NKPOLU, PORT HARCOURT.

INTRODUCTION

The policing of any country is a serious business of government. And this great responsibility of protection of the life and property of its citizens imposes on the government the need to have a disciplined police force who themselves are not violators of the very laws they have sworn to uphold. A country faces very great and grave consequences when the police force is corrupt and criminally minded as they metamorphose into the very criminals who should be behind bars, and this in effect means that such a society has no agency to check and protect the collective values and norms of the people.

It is the society that over a period of time approves certain behaviours as being right and proper, which ultimately culminates into approved standards of behaviour for its members and the emergent societal values. Any other behaviours frowned at by the society as undesirable, are regarded as offences when committed by any body and such a person would be adequately sanctioned according to the rules evolved by the members. When a man deviates from the normal behaviour of a reasonable man and does what the society regard as a crime, he is regarded as a criminal whether or not he is a protector of that law by his vocation and should apprehend offenders of the law.

So when the police encourage crimes in the society by aiding criminals in their nefarious acts, engage in criminal acts themselves such as robbery, bribery and corruption, rape of innocent citizens, intimidation of various forms, thuggery, falsification and deliberate distortion of evidence for gratification, selective and surrogate arrests which are against the law etc., it is a matter of grave consequences for such a country and the police popularly known as the “friend of the people”, becomes in actual fact the enemies of the people.

It is against this background that this paper attempts to examine the issue of criminality and the police force in Nigeria as a further means of obstructing criminal justice in Nigeria.

1.CRIMINALITY EXAMINED

Criminality is concerned with “the state or quality of being criminal” and it can also be described as “an act or practice that constitutes a crime.”¹And a criminal quality is having the character of a crime or acting in any way abhorred by the society.

A crime is “ an illegal act, omission or event, the principal consequence of which is that the offender, if he is detected and the police decide to prosecute, is prosecuted by or in the name of the state, and if found guilty is liable to be punished …”²

From this definition, crimes in the society are hinged on acts or person’s inability to act, which do not have the support of the law. They are behaviours not approved by society and declared prohibited by law. The crime is not just committed against a particular person but against the society as a whole. According to Aguda,³ “it is not all illegal acts nor all legal wrongs that are crimes and punished as such…”What then makes some acts illegal and punishable while others may not be approved by law but not necessarily punished as crimes. The starting point is to determine whether the society in question has a record of what is considered as offensive or not. In Nigeria what is regarded as an offence is clearly stated in our statute books, thereby leaving noone in doubt as to what constitute an offence and the appropriate punishment for such offences.

So crime relates to any conduct, which as put by Turner⁴ “ a sufficiently powerful section of any given community feels to be destructive of its own interests as endangering its safety, stability and comfort and which it seeks to repress with corresponding severity.

The concept of criminality connotes guiltiness or a guilty mind. This necessarily implies the occurrence of an event, an act or an omission and a state of approved behaviours, which makes a person guilty of non-conformity. The question that agitates the writers’s mind is this, Is a person guilty by personal convictions of guilt or simply by societal displeasure? If purely societal, is the act criminal by its very nature or just criminal because the society had declared it so? What if the behaviour exhibited has become the norm rather than the exception in that society, and in fact has become approved by a greater number of persons in the society even where the statute books declare same to be an offence? So what and whose criminality should be considered? Is it that of the person or that of the society? Is crime inborn in persons or is it society induced?

Criminality deals with the criminal mind. Who has a criminal mind? It is a person who has committed an offence, which is an illegal act prohibited by statute. Is the concept of a criminal mind, a universal phenomenon? Is what is considered a crime in society, a crime in society B? With due respect, it is not so. Criminality in Nigeria is both in the person and the society at large because while on one hand supposedly “good” persons when put in certain positions manifest the same “bad” traits, which make many others bear the appellation “criminals”, there are persons who still remain uncorrupted. The manifestation of criminal tendencies in persons at different times may explain why a policeman who knows that stealing and collection of bribes is an offence however goes ahead to do so and does so even publicly. Where then is the consciousness of the society to deter criminals when they know that the Nigerian police force are guilty of the same offences they apprehend others for. In fact, it is the same society that aids the police in committing certain crimes against it as societies can change behaviours, which were hitherto offences into acceptable norms.

The Nigerian situation poses a great challenge as corruption permeates every aspect of our corporate existence. From the tacit encouragement of the populace to those in positions of authority to help themselves to the ‘ national cake’, to the subversion of rules and enthronement of illegality through legal means, one can safely borrow a line from the holy book to say that ‘all have sinned…’

So criminality concerns what the society makes criminal at any point in time. The guiltiness attached to an act or event may be eroded with time when the society legalizes what was hitherto illegal. The society creates crime or offences to ensure corporate sanity and peaceful co-existence of persons. So any member of a given community who violates the given rules or does any of the acts already stated in their statute books as offences would be exhibiting criminality whether such a person is a law enforcement agent or not.

2.THE POLICE FORCE IN NIGERIA: NATURE, COMPOSITION AND FUNCTIONS OF THE POLICE.

The Nigeria police is established by statute. The constitution of the Federal Republic of Nigeria 1999 provides that “there shall be a police force for Nigeria, which shall be known as the Nigeria police force…”and subsection 2 provides that (a) “the Nigeria Police Force shall be organized and administered in accordance with such provisions as may be prescribed by an Act of the National Assembly and (b) that “the members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law”⁵.

It is pursuant to the above that the Police Act⁶ was enacted to state the powers and duties of the Police as well as regulate the organization and administration of the Police.

Generally, the functions of the police include the maintenance of peace and order in the society, detection and apprehension of offenders who are made to face the law, preservation of life and property of the citizens amongst others.

Specifically however, on the duties of the police, the Police Act (hereafter known as the “Act”) provides that “the police shall be employed for the detection and prevention of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be require of them by, or under the authority of this or any other Acts”⁷. From this provision, the police has powers to arrest any person committing a crime in his presence or whom he suspects upon reasonable grounds of having committed an indictable offence, to search premises and persons, etc. This power of arrest can be with warrant or without warrant depending on the type of offence and the point of apprehension.

The judiciary has also highlighted the duties of the police in Nigeria in the case of Fawehinimi v. I. G. P ⁸, where the court of appeal held that the police have the duty to detect crime, and implicit, is the duty to obtain and investigate complaints on the commission of crimes. And upon the receipt of such complaints, the police may arrest the suspect, arraign the suspect before the court and prosecute the person in appropriate cases.

In compliance with the principles of fair hearing as enshrined in our constitution, the police is required to inform the person arrested or detained, in writing within 24hours and in a language he understands of the facts and grounds for his arrest or detention⁹. In practice however, the suspect is merely informed that he is under arrest and given little or no time to follow the arresting officer to the Police station or he may be taken to the Police station without knowing the reason for his arrest. This practice is an infringement of the person’s fundamental rights.

The accused is usually required to make his statement in defence of the allegations against him at the police station although he may decide to exercise his constitutional rights of silence. This constitutional freedom of the suspect to remain silent is sometimes abused by the police as a suspect who refuses to answer to an allegation is often tortured and manhandled for purposes of eliciting statements from him. The power of Police to arrest anybody is based on the complaint made against the person. So, in carrying out their duty, the Police are expected to arrest the person against whom the complaint is made and no more. But often times, contrary to what the law states, surrogate arrests are made whereby relations of suspects are sometimes arrested where the actual suspects cannot be located. This procedure is not proper, as criminal trials are never conducted by proxy where a party is allowed or compelled to substitute a person who is supposed to stand trial.

The Act also provides that the police have the authority, subject to the provisions of the constitution of the country, to conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name.¹⁰ And when a person is arrested without warrant, the police have powers to grant him bail depending on the nature of the offence.¹¹

SS28 (1) and 29 of the Police Act grants the police the power to search premises and persons for stolen property.

The composition of the police is as follows; the senior officers include officers from the ranks of Inspector –General to the Assistant Superintendent while the lower ranks are considered junior or non-commissioned officers. At the head of the Nigerian police is the Inspector – General followed by the Deputy Inspector-General, Assistant Inspector- General, Commissioner of police, Deputy Commissioner, Chief Superintendent of Police, Assistant Superintendent of Police, Chief Inspector, Inspector, Sub-Inspector, Cadet sub-inspector, Sergeant Major, Sergeant, Corporal, Constable, and Recruits.

A Commissioner of Police heads the Nigerian Police in each State of the Federation. The Police Force generally is divided into five sections, each performing specific functions and headed by a Commissioner, a Deputy Commissioner or an Assistant Commissioner. The Commissioner of Police in each State commands a contingent of officers stationed in the State¹² and reports to the Inspector –General who has command over all the police contingents in the country.

3.CRIMINALITY IN THE POLICE FORCE IN NIGERIA.

Many times, several persons who have been at the receiving end of the Nigerian police in action exclaim that the police are criminals. Others become even more specific when they opine that police are thieves and armed robbers. The question is, why these tags, which are completely at variance with what, the police should be concerned with in the society.

The investigative role of the police is fraught with criminal tendencies such as planting of evidence to incriminate the innocent, confuse and distort investigations, destruction of relevant evidence for pecuniary reasons, extortion from the public, intimidation and torture. So, crimes rampant among the Police in Nigeria include the taking of bribes to carryout legitimate duties, corruption, stealing and participation in armed robbery, rape of hapless citizens, deliberate distortion of facts in prosecution of cases, extortion etc.

The recent allegation of a bribe of N5b against the Supreme Court as reported in the THISDAY newspaper of July 17,2004¹³ is a pointer to the behaviour of the police during investigations.

According to the publication, a star witness in unravelling the scandal refused to further honour police invitations to assist their investigations because as he claimed, “ such an earlier invitation to Asaba led to his arrest, detention and arraignment before a court”. Continuing, the publication stated that, “ the implication is that the police have made up their minds on the direction to look at even before investigations commence”. This is the calamity of a police force that decides on the answers before the questions become clear, embarrass, torture and therefore deter the public who have useful information to assist the investigation of crimes.

Writing on Anti- Corruption Law, Olufokun¹⁴ stated the World Bank’s definition of corruption as “ the abuse of public office for private gains. It involves the seeking or exacting of a promise or receipt of a gift or any other advantage by a public officer in consideration for the performance or omission of an act, in violation of duties required of the office. It may also involve extortion of monies or theft …”. Following this definition, the police extortion of money from hapless motorists under one guise or the other is corrupt and criminal. And in x-raying defeatist factors of the existing criminal laws, the writer stated same to include “corrupt and roguish police system as investigators and prosecutors”. Continuing, he said, “the record and public performance of the Nigerian Police, as an ineffective, poorly equipped and pathologically corrupt Agency make it illusory to expect effective enforcement of cases of corruption”.

Other illustrations of police criminality abound such as the case of a woman who hid under the staircase while her house was robbed and her husband shot by the leader of the gang. She went to the Police to lay a complaint of the robbery and murder only to be

confronted by the very leader of the robbery gang who turned out to be the police chief in charge of the zone. So the police in Nigeria, in addition to aiding and abetting robbers through the supply of guns and ammunition, actually go on such operations themselves. In Adedeji V Police Service Commission¹⁵, a superintendent of Police in charge of a special Anti- Robbery squad was involved in the protection of wanted armed robbers and in the sharing of their loot.

The new trend in the corruption, which is the police force, is the demand for money and vehicles from a complainant before offenders of the law are apprehended. In such a situation, it is no longer a question of not knowing the offenders but unwillingness to carryout their public duty except they are given some gratification. So, where the complainant refuses to pay, the tendency is for the police to collect money from the alleged offender and let him off the hook.

Any person who lets his female relative be detained by the police in their station overnight for whatever reason would have a story to tell as such a person would be subjected to all kinds of sexual harassment including rape before she is released. In such cases, the investigating officer in charge of the case is never available to ensure the person’s prolonged stay in police custody against the law, which requires such a suspect to be sent to court within 24hrs of detention.

The offences of assault and battering are being committed against innocent citizens everyday for alleged breaches of traffic rules. In most cases the ‘supposed’ offender is not given an opportunity to state his own case before the police descends on him with force. His punishment without judgement would range from collective police beating to false imprisonment either in their vehicle or at the police station.

OBSTRUCTIONS TO CRIMINAL JUSTICE IN NIGERIA

Criminal justice administration in Nigeria deals with the collective methods through which offenders or violators of the law of the land are apprehended and consequently punished for their acts. It thus involves a chain of institutions, which include the Nigerian Police. According to the Black’s Law Dictionary¹⁶, criminal justice is concerned with the “methods by which a society deals with those who are accused of having committed crimes”. It covers the collective institutions through which an offender passes until the accusations have been proved and the necessary punishment given. It involves “ the law enforcement agents (police), the judicial process (judges, lawyers), and corrections (prison officials)”.

Obstructions to criminal justice in Nigeria thus permeates the different levels of administration of justice starting from when a report is made to the police by the complainant that an offence has been committed by the offender, to when the offender is subsequently arrested, charged to court, tried, found guilty or otherwise, and finally imprisoned, discharged or acquitted. Obstruction of justice according to the Black’s Law Dictionary is “ the interference with the orderly administration of law and justice, as by given false information to or withholding evidence from a police officer, or prosecutor, or by harming or intimidating a witness”¹⁷. This definition, which applies to any act that tends to impede the administration of law either civil or criminal, is the one adopted by this paper.

Under the English common law a person is guilty of obstructing a constable in the execution of his duties if he makes it more difficult for him to carry out his duties.

Various sections of the criminal code¹⁸ contain offences, which border on obstruction of criminal justice in Nigeria. Specifically, chapter 14 of the code provides for offences relating to administration of justice and includes such offences as perjury, fabricating evidence to mislead the court, corruption of witnesses, destroying evidence, preventing witnesses from attending court proceedings, perverting justice, contempt of court etc. Obstruction of criminal justice has to do with the different institutions involved in the administration of justice in the country namely, the police, the officers in the ministry of justice, the judiciary and the prisons. Generally, some of the identified methods of obstructing criminal justice include the following:

Ø Obstructing criminal investigations

Ø Assault on the court’s process server

Ø Stealing or alteration of court records and processes

Ø Obstruction of court orders

Ø Tampering with a witness or harassment of informants

Ø Threatening of judges handling particular cases such as in the celebrated Omisore’s case where about 3 judges resigned from hearing the matter due to incessant threat to lives.

Ø Deliberate loss of case files in the ministry

Ø Inhuman treatment of suspects and subsequent killing of same in detention to suppress vital evidence

Ø Resisting arrests, and aiding escape of prisoners

Ø Inadequate equipment for the police to carry out their duties

Ø Unconducive environment for judicial officers to function etc.

With regard to the Ministries of justices, there are cases of misplaced files and deliberate delays whether to prosecute some cases or not. Some judges may equally lead to miscarriage of justice for pecuniary and other considerations. All these amount to obstructions of criminal justice.

Criminal justice in Nigeria starts with the work of the police who record reports of infringements of rights by complainants and take steps to investigate such complaints, make arrests and take and prosecute the cases in court.

Obstruction of criminal justice starts at the level of investigation of offences where persons who have useful information to assist the police in their work will refuse to do so for fear of being implicated in the case by the same police. Often times neighbours who are eyewitnesses to an offence are so scared of the police that they give fictitious names and addresses as well as fabricated stories that confuse the investigation. And at other times, material witnesses are hidden to make further investigations meaningless and impossible.

Another level of obstruction of criminal justice in relation to the police is at the point of arrest of offenders and search of the person and property of a suspect. The law permits a police officer to arrest and detain a suspect in the course of investigating an offence. The police can also search a person whom he suspects to have committed an offence for further incriminating evidence. The law however, requires the arresting officer to inform the suspect of the alleged offence before the arrest.

During arrests however, many people resist lawful arrest and even go to the extent of assaulting the police officer. Resisting of arrests and searches is an obstruction to the police in the course of criminal justice. There are however cases where the police have stolen people’s property in the course of searches.

The police are empowered by the Police Act to grant bail in certain offences. Sometimes when bail is granted to a suspect he is required to report to the station on specific dates to aid the police in their investigation. But oftentimes the person jumps bail, which further obstructs the work of the police or the police on the payment of a fee may equally declare such a person to have jumped bail to frustrate investigations..

The godfather syndrome in the Nigerian society makes certain persons “ sacred cows” to be shielded from the long arms of the law when cases of infringements occur. These selective protection shields them from being interrogated by the police, or detained in police custody or even taking to court to answer for criminal charges against them.

Under the English common law a person is guilty of obstructing a constable in the execution of his duties if he makes it more difficult for him to carry out his duties. It was decided in Duncan V Jones¹⁹, “ it is the duty of the police to prevent breaches of the peace and in the discharge of that duty they may forbid the holding of a meeting… A person who nevertheless proceeds with the holding of the meeting is guilty of obstructing the police in the execution of their duty.

There is no specific offence in the criminal code tagged the obstruction of criminal justice but there are offences whose import is to interfere with the orderly administration of justice in criminal matters. These offences in our code include the following:

Fabricating Evidence: S.20 of the criminal code provides that “any who with the intent to mislead any tribunal in any judicial proceeding – (1) fabricates evidence by any means other than perjury or (2) knowingly makes use of such fabricated evidence is guilty of a felony and is liable to imprisonment for 7years.

This section gives statutory effect to the common law offence of fabricating evidence to distort and thereby obstruct criminal justice. To be liable for this offence, it does not matter that the court eventually did not sit or that the evidence was not used.

So long as the act committed with the intention to mislead the court, he is liable.

Corruption Of Witnesses: S.121 of the code provides that any person who (1) gives, confers …offers to give…any property or benefit of any kind to… any person called or to be called as a witness in any judicial proceeding shall give false testimony or withhold true testimony, or (2) attempts by any other means to induce a person called or to be called as a witness… to give false testimony or withhold true testimony… is guilty of a felony and is liable to punishment for 7 years.
S.122 of the code deals with the offence of deceiving witnesses while S.123 deals with the offence of destroying evidence. In Okuyemi v Police²⁰the court held that destroying an article seized in the execution of a search warrant is an offence.It also has the effect of impeding the administration of justice. The code in S.124 provides that it is an offence for anybody to prevent a person who has been summoned as a witness from attending the court’s proceedings. According to Aguda, “ to prevent a person who has been dully summoned as a witness to attend the court is clearly an act calculated wrongfully to interfere with due administration of justice”²¹.
S.125 of the code deals with conspiracy to bring false accusation against a person knowing that such a person a person is innocent of the alleged offence and S.126 (1) is concerned with perverting justice. It provides that “ any person who conspires with another to obstruct, prevent or pervert, or defeat the course of justice is guilty of a felony, and is liable to imprisonment for 7years.
Thus, where as, in the case of Onyirokwu v Police²², the prisoner offers money to the prosecuting officer in order that the officer may hide the facts in the charges, he may be guilty under this section. Also, where a person is convicted and sentenced to imprisonment the course of justice does not end before he is delivered to the jailer, and a conspiracy to substitute someone to serve the term of imprisonment is an obstruction and a perversion of the course of justice.

According to Okonkwo C.O²³, “ the law does not only impose on us the duty to assist the police, it also makes it a crime to obstruct them in the performance of their duty.” This legal provision is in S.356 (2) of the criminal code, which provides that “ any person who assaults, resists or willfully obstructs a police officer while acting in the execution of his duty… is guilty of a felony”.

An obstruction is an interference, which impedes the execution by a police officer of his duty and this may be by words alone as was decided in R v Henshaw²⁴ where the accused advised a crowd causing a public disturbance to disregard the orders of a police officer. As result, the crowd pushed the policeman and his cap fell.

In George Agbaifo v I.G. P²⁵, a police officer, acting on suspicion searched a car on the highway suspected to carry illicit gin. While he was still searching the owner of the car drove away with the gin. The court held that the appellant was guilty of obstructing the police in the performance of his duty. The court also defined “obstruction” here to mean “making it more difficult for the police to carryout their duties”.

The problem of obstruction of criminal justice is thus evident in the different provisions of the law considered. It is the problem of not allowing the hand of justice to get to its logical conclusion of determining if a person is actually guilty or not guilty of the offences alleged. It is the problem of miscarriage of justice in some cases due to deliberate distortion of evidence by persons. It is a problem of escalated crime rate in the society as the police in addition to committing the offences themselves are impeded by lack of adequate, more modern equipment and public assistance to carry out their statutory functions. The problem of obstruction creates lack of public confidence in the police and the judiciary especially the latter, which is seen as the last hope of the common man. Also, when the police deliberately distort investigations due to their varied corrupt tendencies, they are no longer seen as the friend of the people. The obstruction which extends to the prisons where officers assist the escape of people from prison custody all go to increase the crime rate in the society.

What then is the way forward?

A proposal for reforms

The problem of police criminality can be addressed in several ways. But what is common to all the strategies is the overriding need to overhaul the entire police force in Nigeria, bring erring police officers to book as a deterrent to others, and decentralize the police force to make it more functional. In this vein, the states of the Federation should be allowed to have their own police force, which reduces bureaucracy in detection and punishment of erring police officers, as they would be directly answerable to the state government. The relative success of vigilante groups set up by some state governments to combat crimes in their domains is a pointer to the fact that where such adhoc groups metamorphous into organized state police, we shall record greater success in policing our states.

The quality of persons permitted to join the police force should be streamlined and definite standards set to ensure that the police force is not a dumping ground for school dropouts, persons who could not get other jobs, or undisciplined persons.

Specifically, possible solutions to obstruction of criminal justice in Nigeria would include the following:

A re ordering of priorities and values of the people and government of Nigeria. Behaviours, which the laws of the land declare to be criminal, should be regarded as such by the people and efforts of all should be geared apprehending and bringing to justice offenders of the law.
There should be a systematic education and enlightenment of the Nigerian public on the duties of the police and ways of assisting the police for maximum results.
The Nigerian Police should be further educated on how to treat informants and suspects to acquire the confidence of Nigerians
There should be an increased police visibility and accessibility to improve public reassurances. The police welfare scheme should be improved to reduce their tendency to compromise their duties for pecuniary reasons.
Provision of better information technology and equipment to detect crimes, thereby reducing the incidence of crimes and other antisocial behaviours.
Erring police officers should be adequately sanctioned to discourage other deliberate obstructions to criminal justice. The criminal code sequel to the above should be amended to provide specifically for the offence of obstruction of criminal justice.

The ordinary citizens of this country also have an important role to play in assisting the police in their duties. The law imposes certain duties and confers on the private individuals certain powers necessary for the maintenance of law and order in the society. There is thus the need for all and sundry to be involved in ensuring that criminal justice is not obstructed and while alleged offenders are made to face the law, innocent citizens are not punished for offences they did not commit.

Conclusion:

It is trite that no nation can toy with its criminal justice system as the sanity of the society depends on what behaviours they consider to be criminal and how seriously persons who exhibit such behaviours are apprehended and made to face the law of the land.

Criminality of a person or a group is the tendency of such person or persons to violate the accepted norms and values of the society. These violations destroy the societal cohesion, destabilize individual and corporate progress. The police are the bedrock of criminal justice in any society. They ensure that the lives and property of persons are protected and preserved to provide the needed harmony for societal advancement. When the police who is the custodian of societal peace and security, become the very tools of insecurity and social instability, there is cause for alarm. To achieve the laudable objective of maintaining the sanity of the society, certain institutions are approved by law to deal with offenders of the law, to wit, the police, the judiciary and the prisons. Oftentimes however, these institutions face impediments, which may be internally or externally engineered to obstruct their duties and scuttle the wheels of criminal justice. To ensure that criminal justice is achieved in Nigeria, all stakeholders namely the public, the police, the law officers and members of the judiciary and the prison officers have a role to play in upholding the law of the land. The government is invited to improve the facilities and working conditions of people in these institutions.

1.Black’s Law Dictionary, 7^th edition, 1999,page 381.

2.Cross and Jones: Introduction to Criminal Law, 8th ed.page 1

3.Aguda A & anor: Principles of Criminal Liability in Nigerian Law 2^nd edition, 1990,page 3.

4.Turner, J.W: Kenny’s Outlines of criminal Law, 18th ed.1962, page 2.

5.S.214 (1)(2)

6.Cap.349 Laws of the Federation of Nigeria, 1990.

7.S.4 Police Act,cap359 Laws of the Federation of Nigeria 1990.

(2000) 7 N.W.L.R. Pt 665 481 at p.519 para.c
S.35 (3) Federal Republic of Nigeria Constitution, 1999.
S23.Police Act cap359, LFN 1990.

11.S.27 Police Act, cap359, LFN 1990.

S215 (2) 1999 constitution of Nigeria.
“ Police, Supreme Court and the N5b Bribery Allegation.
Femi Olufokunbi “Criminal Procedures and Recipes for the Enforcement of Anti-corruption Law” Modern Practice Journal of Finance & Investment Law, vol.6 No.1-2, page7.
(1991) 5 N.W.L.R (PT197) 331.

16.Black’s Law Dictionary, 7^th edition, page 381.

Black’s Law Dictionary 7^thedition, page 110

18.Criminal Code, cap.77 Laws of the Federation 1990.

(1936) 1 K.B.218
(1946) 12 W.A.C.A, page 3.
Aguda, T.A: The Criminal Law and Procedure of Southern Nigeria, 3^rdedition,1982 page582.
ibid, page 586

23.Okonkwo, Cyprian O: The Police and the Public in Nigeria, 1966, page 41.

(1935) 12 N.L.R 26
(1960) L.L.R. 121

TRANSPARENCY, ACCOUNTABILITY AND SUSTAINABLE DEMOCRACY IN NIGERIA

Aduche Wokocha,, Esq.*

Introduction

The heart of …. any democracy — is meaningful, active participation by its people in government decisions that touch their lives. The soul of such a system is the ability of ordinary citizens to hold government officials accountable for their actions. Known as “transparency,” this essential democratic process takes many forms, but all allow concerned citizens to see openly into the activities of their government, rather than permitting these processes to be cloaked in secrecy.¹

At the very soul of the time tested best form of Government – Democracy, are the phenomenon of Transparency and Accountability. They set the stage for thorough going democracy ensure sustainability, rejuvenate it when it is weak, and yet are the sole purpose of democracy. Man making his choice of how to organize and operate in his society, man deciding the structure, of his society, defining the limits of his leaders, in a clear open and ascertainable way, thus expressing his sovereignty in polity.

In this paper, I examine the relations between Transparency, Accountability and Democracy, analyzed the role, place and essence of the former in Democracy, and upon highlighting inherent problem, proffer solutions. I posit that true democracy is impossible without effective Transparency and Accountability and that non but a vigilant people can guarantee the essence and uses of Democracy in a polity. Like equity, true democracy is illusive and goes to sleep, if the people it’s owner, makers and ultimate beneficiaries consign it to the lumber room through omission (negligence) or commission (its surrender to agents).

* Senior Lecturer and Head, Department of Public Law RSUST, Nkpolu, Port Harcourt and Executive Director, Schalesworths Center For Democracy and Development, Port Harcourt.

MALAMUD, P. (Ed): Transparency In Government. 2004. USIS. Available online @http://usinfo.state.gov/products/pubs/transgov/records.htm
Understanding Democracy

Appositely defined by the Chambers 20^th century dictionary as:

A form of government in which the supreme power is vested in the people

collectively, and is administered by them or by officers appointed by them,²

Democracy is a republican phenomenon founded on the principles of egalitarianism, liberty and accountability. It may be analysed as consisting of six major presuppositions:

That all people (participants qualified) are equal
That all participants carry equal value and therefore stake in the polis,
That all participants are entitled to lead or participate in leadership
That the leaders lead for, from and at the instance of the people
That government or state policies must pursue the common good of all
And that all leaders are under duty to account to their people.

Strict and absolute, democracy demands all the above presuppositions of all practitioners. There is no such thing as “some democracy” its either a democracy or some other form of political contraption that differs form democracy. Democracy sharply contrasts from monarchy, feudalism or oligarchy all of which divest power or sovereignty from the people and transfer same to some king, lords or few persons who rule as of right and not necessarily on behalf of the people.³

Invented in Athens,⁴ groomed in Rome⁵ and refined and fully developed in the United States of America,⁶ democracy has met and undergone several transformations and transmutations across time to the present day.

In Athens, democracy was the rule of Athens by every member assuming the office and entitlements of the Duma⁷ one man after the other until the entire male population is covered and recycled continuously.

The legislative council

As E. H. Dance observed⁸ concerning this epoch,

The Athenians made democracy so successful that the example has

been followed over since by people who wish to govern themselves.⁹

In Rome, the conquering super-power of the time assimilated the concept of Democracy from the ashes of the then conquered and annexed Athens. In its 1000 years, Rome practiced classical democracy in a manner that is necessarily different from the Athenian System. In what is now known as Classical Republicanism, Rome evolved a republican system which retained the virtues of civil rule as the people’s involvement in public affairs even if only in a ceremonial manner. With power distributed between the consul, the senate and the tribune¹⁰, Roman democracy promoted a highly democratic/autonomic political system in its constituent communities, where ultimate sovereignty remained with the community itself, circumscribed by the constitution of the empire which gave distinct roles to different social forces.

A major Roman contribution to democracy, is that it proved the first experiment of democracy in a large political setting beyond the earlier examples of a city state. The tribunes for example were regularly elected.

The current epoch of democracy emerged in the last part of the 18^th century under the American Revolution. Today known as liberal democracy, the basis of this new democracy was unequivocally expressed in the American Declaration of Independence in 1776, thus:

We hold those truths to be self evident; that all men are created equal, that they are endowed by their creator, with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.¹¹

Liberal democracy posits certain tenets as basic to democracy these include the following conditions:

All men are equal
All men have inherent right to freedom of the person
No man may lead/rule without the consent of other citizens
The consent is given by periodic elections
The realm of government is limited to order, security of life, property and contract.

10.

11.

Today, the theory of liberal democracy has metamorphosed and motivated the emergence of several shades of schools of democracy. We have the theory of social democracy which criticises liberal democracy’s formalistic attachment and emphasis on regular elections and ‘bare faced’ declarations of civil and political rights of citizens without the means to them.¹² It therefore posits that democracy must mean not just the right, but the guarantee of the means for achieving the good and free life which liberal democracy expresses or purports to confer on the people.¹³

We have had socialist democracy which promotes state control of all resources in the land, for even distribution and application of same to all citizens in strict equality.¹⁴ This has broken down in USSR, but still holds sway in China and Cuba etc.

Recently there have been calls in Africa for ‘African Democracy’ “home-bred democracy” “our own democracy”. These I must state have been little more than class struggle with the various dictators and aspiring dictators of Africa struggling to find an avenue for legitimizing their insatiable desire for access to Africa’s numerous poorly secured national treasury vaults.¹⁵

It is important to stress here that irrespective of the perspective of a democratic theory, it must possess the main qualities which are the basic foundation of self governing nations. These are:

Open society with a people-participatory administration
Periodically chosen people determined and people centred leadership and
Accountable culture that guarantees that all trustees including and especially, the government, account to their benefactors.

Any Government or State that guarantees these attributes, no matter how politically vilified by any detractor, runs in my humble opinion, a democratic society/state.

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THE DEMOCRATIC IMPORTS OF ELECTIONS

“At the bottom of all the tributes paid to Democracy is the little man, walking into the little booth, with a little pencil, making a little cross, on a little bit of paper no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.¹⁶ - Winston Churchill.

An election, according to the Hutchinson’s Encyclopedia¹⁷, is the process of appointing or selecting persons to public offices or a political party to govern, by voting. It is indeed a vital political right of expression of choice. Once described in Ashby v. White¹⁸ as a right as important to the individual as the right to life. Election is at the individual level, an inalienable opportunity of political expression of citizenship and at a collective level, an expression of sovereignty by which the people determine their preferred policies according to the manifesto of competing persons or parties.

Elections may be organized by secret ballot, open ballot or what in Nigeria is referred to as open secret ballot.¹⁹ It must be stressed here that the most preferred method of these is the secret ballot, as it affords the individual absolute privacy in the expression of his choice and therefore insulates him from external influences.

Some of the earliest elections were held in the Greek city states between 550BC and 400BC.²⁰ Elections have thrown up critical situations, such as the 2000 American Presidential Elections,²¹ but the worst examples of elections are to be found among the less developed 3^rd world countries with the worst recorded in Liberia where the incumbent, President Charles D. B. King declared an electoral victory by votes 15 times more than the population of the country which was 15,000.²² The most one sided is 1902 North Korean workers party victory of 100/100 of registered voters.²³ Worse still, elections have also produced Adolf Hitler of the German Nazi party, perhaps justifying the earlier tag mob rule.

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The question -who may vote?, has been answered in different forms across time and across the world, earlier, only free born in the Greek city states, only citizens in Rome, only men of means in some other situations, only men in most states for most of the time, and only recently men and women. Today, the right to vote (franchise) is determined by the universal age of adult suffrage which is fixed at 18 years.²⁴

Five conditions must be met for the conduct of a free, fair and transparent election. These are:

The existence of informed voters;
The availability of options for voters to choose from ;
The existence of open and fair rules for the conduct of the elections,
The scrupulous conformity of all parties with the electoral rules, and
The prompt and impartial official announcement by electoral officers, of the result derived from the actual return of votes cast.

These are uncompromisingly and absolutely necessary conditions and the failure of any one of them leads to a negation or worse still, subversion of the will of the people. Most unfair and unfree elections have resulted from the absence of some or all of these rules in Nigeria as in other similar underdeveloped countries.²⁵ To guarantee a free and fair election, there must be

Proper identification / registration of voters
Efficient conduct of election by
A truly independent organizer.

The key element in election is “CHOICE”. It is organized to enable the people of a determinate polity express their choice by voting for the candidate of their choice, and to express their assessment of an incumbent government in the exercise of their collective prior right of sovereignty. The effectiveness of a democratic election depends upon the ability of the simple action of Winston Churchill’s simplistic but symbolic little manabove, to determine the outcome of the exercise. Where his simple action elects the leader, there is a transparent democracy, but where his action is rendered as inconsequential as it is simple, the process has been corrupted and the democracy, thwarted.

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Thus, all these measures enumerated above, are insufficient, unless the electorate itself is vigilant.

Transparency Accountability and Sustainable Democracy

At the centre of democracy, is transparency and accountability. In a unique manner, they are unconditionally required of all democracies. They inform the very idea of democracy, and clearly mark it out from all the other forms of government.

As I have explained earlier, the equality of all stake holders in society and the equal need to guarantee their inherent right to self governance and preservation, is the central reason why the management of the polis is entrusted to a neutral agent - the law, whose action will be observed by all, and whose action will be no respecter of persons nor station.²⁶When men are elected into democratic government, they are therefore expected to act in so open and transparent a manner as would show that they are acting out the dictates of the people’s law and not their own whims and caprices. This democratic spirit of transparency in the public sphere, clearly contrasts with the spirit of monarchy, oligarchy or other forms of dictatorship, where the king rules by some divine right and his discretion is the basis of legitimacy, whereby arrests are made in his name, the mention of which, confers legitimacy.²⁷

(A) Transparency

Transparency is the state of being open and easy to observe. It is in politics, a demand that government or public affairs be conducted in a manner open for citizens to examine and contribute to the political administration and development of their society. Transparency is not just a requirement of democracy, but a cardinal indicator of its existence in a political society. No government can truly be called democratic, which is not transparent. It is therefore easy to see that sustainable democracy is impossible without transparency.

A transparent society guarantees

Open conduct of public policies especially procurement and other expenses
Adequate and free flow of information
Access to public records and transactions.

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It finally guarantees participation of citizens in the shaping and making of public policies, thus making such policies truly people oriented and people driven, a character that is asine qua non for democracy.

(B) Accountability

Accountability refers to the effectiveness with which the governed can exercise influence over their governors. It consists of various forms of holding elected and appointed officials responsible for their decisions and actions²⁸

Accountability is practiced by subjecting the holder of public authority to account to variety of officers institutions of the people on the exercise of his public mandate and especially funds attached thereto. The chief purpose of accountability is to minimize or eliminate corruption in the public sphere, and scrutinize holders of public power lest they abuse the power as it is always likely to be abused. Accountability is a devise for ensuring that rulers rule according to the law and ethics of their society. Examples of such checks and balance include the subjection of Presidential executive power to approval of the National Assembly for a variety of purposes ranging from appointment of officers of his cabinet²⁹ to the declaration of emergency³⁰

In many political societies, a variety of institutions is established to monitor and address abuses of public mandate and thus hold their holders accountable. In Nigeria, these include:

(1) The Code of Conduct Bureau: This requires public officers to declare their assets publicly before, during and at the end of their tenure. Its chief aim is to monitor the integrity of public officers³¹

(2) The Code of Conduct Tribunal³²: established to try and punish public officers who breach the Code of Conduct Bureau provisions.

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Hyden G. 1992:14

²⁹

S.305.
S.153, 1999 Constitution

³²

(3) The Office of the Attorney General.³³ created by the constitution for the federation and the respective states, they are empowered to investigate, prosecute or take over the prosecution of any body who commits any offence under Nigerian law, including corruption.

(4) The Office of the Auditor General: created by the constitution³⁴ and empowered to conduct periodic check on all government, statutory corporations, commissions, authorities, agencies, including all persons and bodies established by an Act on the National Assembly. His reports are periodically considered by a Public Accounts Committee of the National Assembly. This office chiefly exposes corruption in conduct of public officers and public procurements and thus, is a veritable whistle blower on corruption that creates accountability consciousness in public dealings.

(5) The Judiciary: established under S.6 of the 1999 Constitution, and empowered³⁵ to adjudicate over all matters between all legal persons in Nigeria. This most dreaded institution only confronts corruption at the instance of a qualified plaintiff or prosecutor, and is desired to be independent and impartial in disposition of justice.

There are other agents of accountability that are created to deter corruption in public offices. These include powers and rights of the people exercised by collective action in a variety of ways. Chief among these are:

(a) Periodic elections, by which the people choose their leader. This is important, for it determines a party’s capacity to remain in government as it is compelled to act right in order to retain the people’s support and mandate;³⁶

(b) the constituent power of recall of legislators guaranteed by the Constitution,³⁷ and

(c) Impeachment,³⁸ by which the people can before the next election remove their executive officers from office, using their legislative representatives.

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See s. 150 and s. 175 of the 1999 constitution, for the Federation and the States respectively.
Under S. 6(6)
S.69 of the 1999

Finally, there is of course the control of public officers by public opinion. The chief instrument, by which the public acts here, is the Press whose watchdog role exposes corruption in public offices, and thus trigger off necessary investigations leading to prosecution³⁹. It is one of the most dreaded and most effective means by which vigilant people ensure accountability among its government officers.

The Democratic Imperatives of Transparency and Accountability

Democracy as we have observed, is about popular Government based on the will of the people, expressed through their chosen or appointed leaders, emerging from periodic elections, and based on the people’s law. As the constitution itself recognizes and declares in S.14:

(a) Sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority;

(b) The security and welfare of the people shall be the primary purpose of government, and

(c) The participation by the people in their government shall be ensured in accordance with the provisions of this constitution.

If these solemn declarations are not to become mere hortatory expressions of empty sentiments, a democratic government must be made to operate in such open a manner that the people’s participation can be assured and their legitimate expectations expressed through their law and policies realistically pursued and attained. Being a collective property of the people, it must operate openly and be scrutinized tirelessly, lest its operators lose both themselves and the people’s will to the time – old temptations to abuse power. The democratic risk posed by corruption in society is grave. Underscoring this grave danger to democracy, Professor Kader Asmal warns;

Corruption, maladministration and bad governance have to be given constant attention. This is not only because they undermine a country's economy and stability. They do more: they undermine government in the eyes of the people. They lead to a pervasive cynicism about politics and politicians which is disastrous for democracy. People lose respect for the very institutions that are there to protect and nurture their lives. The shameless triumph. Principles go by the board. Opportunism prevails. The self-enriched rule, with insolence, and the people tolerate it - many remaining silent because their slice is waiting.⁴⁰

Akinseye- George, Y.: Legal System, Corruption and Governance in Nigeria, 2000, New Century, P.72-95
Asmal, K.: @ http://www/transparency.org/iacc/papers.html

It is this need that makes transparency and accountability two of the tripod on which democracy stands, the third of which is the rule of law. If a democracy must thrive, if its practice must be sustained, then its people must ensure tirelessly the enhancement of transparency and accountability.

Transparency and Accountability in Nigeria: A Survey

Sadly, it cannot be said that Nigerian government is open and truly transparent at this moment. Since the end of the Military regime, there has been much motion, but no movement; much action but no change there has indeed been much anti- corruption campaigns and tough promises, but no progress in the direction of transparency and accountability. As the US Department of State appositely observed concerning Nigeria in the first year of this period,

Although the great bulk of economic activity is outside the formal sector, recorded gross domestic product per capita was $250. Much of the nation's wealth continued to be concentrated in the hands of a tiny elite mostly through corruption and nontransparent government contracting practices. During the year, petroleum accounted for over 98 percent of the country's export revenues, most of the government's revenues, and almost all foreign investment. During the year the economy was static, with growth still impeded by grossly inadequate infrastructure, endemic corruption, and general economic mismanagement. The country's ports, roads, water, and power infrastructure are collapsing. Chronic fuel shortages which afflicted the country for several years continued to be a problem. Food production has not kept pace with population growth. An estimated two-thirds of the country's more than 120 million people live in poverty and are subject to malnutrition and disease.⁴¹

This observation is true of 2000 as it is of today. The trend has since continued without change, except in increment in a more alarming and more sinister proportion. Till date;

Ø Contract award scams still bloom in all arms and tiers of government in Nigeria,⁴²occasionally blown open when political motives arise, to warrant one party discrediting the other in order to get what is at stake – Speakership or Presidency of the legislative arm or headship of government in the form of impeachment proceedings.⁴³

Ø Privatization of public utilities has continued to mean, it’s operators, buying off costly public enterprises at cheap rates under surrogate companies or in partnership with some “external investors” signaling fears that the nations economy will bear the entire brunt of privatization without its consequential benefit to the Nation.⁴⁴

Ø Budgets are drawn yearly with fantastic amounts and almost always overspent without evidence of completion of any of the budgeted public utility projects, roads, water and electricity and housing inclusive. The recent bickering between Chiefs Annenih and Uzor Kalu is a case in point.⁴⁵

Ø State functionaries burn the nation’s scarce foreign exchange by traveling overseas repeatedly, often with large entourages for all sorts of birthday parties, wedding anniversaries, Old Boys Association ceremonies and self impressive lectures of all sorts delivered to all forms of organized foreign ‘area boys’ and ‘coffee shop crowds’.⁴⁶

How these events improve the lots of the polis is known and justified only by their discretion. Citizens neither have a say nor avenue to contribute to the decisions on how tax payer’s money is to be spent.

In addition to the Laws mentioned above, Nigeria also has the following:

The Advance fee Fraud Act No 3 of 1995

The Bank and other Financial Institutions Act, No 25 of 1991

The Code of Conduct Bureau and Tribunal Act cap Law of the Federation 1990

The Corrupt Practices and Other Related Offences Act 2000

The Failed Bank Act No 16 of 1996

The Foreign Exchange (Miscellaneous Provisions) Act No. 17 of 1995

The Money Laundering Act No 3 of 1995

The National Drug Law Enforcement Agency Act, Cap 253, Laws of the Federation of Nigeria (LFN), 1990

The Public Complaints Act cap 377 Laws of the Federation 1990

More recently, we have the corrupt Practices and Other Related Offences Act 2000 and

The Economic and Financial Crimes Act, which is still waiting for the Presidential

Assent.

Conclusion and Recommendations

Clearly, what is missing in Nigeria is the political will to enforce our law. The way to a transparent and accountable government is not hidden, the assurance of a sustainable democracy in Nigeria rests on how much and how seriously it can pursue the rule of law and open participatory processes in the pursuit of national objectives. Like mutually dependents, democracy rests on responsible governance and transparency and accountability are the necessary vehicles for attaining that. As the learned Chief Justice of Bangladesh Justice Kamal Mustapha has succinctly put it,

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Good governance, ladies and gentlemen, is an extension of the principle of the rule of law. A society is well governed when there is a rule of law, not a rule of man or woman. A modern state is extensively governed by rules and regulations, by complex guidelines and instructions, by a web of regulations, restrictive, prohibitive and penal procedures. As a fish starts getting rotten from the head, good governance starts sliding from the hands of the people when the top people in parliament, executive and judiciary put rules and regulations aside and start ruling by the rule of the thumb. A democratically elected government is not necessarily a democratic and open government. It has often been found in history that a democratically elected government can also be despotic and autocratic in practice.⁴⁷

Towards the ends of a transparent and accountable democracy in Nigeria, I recommend that Nigeria must ensure the following:

(1) Openness in public procurements; by conducting all public sales and purchases in so open a manner that the citizen shall not suspect that they are conducted towards favouristic and nepotistic ends. This, as Dr. Kamal Hossain points out, is necessary to avoid the conferring of favours upon cronies and is an important safeguard against corruption. As Justice Brandeis of the US Supreme Court said: "Sunlight is the best disinfectant". If the award of such contracts or other economic benefits is done on the basis of an open and transparent process, through competitive bidding, this could significantly prevent arbitrariness and reduce the possibility of public power being abused for private profit.⁴⁸

(2) Decentralisation and deconcentration of power; by reducing the sphere of control of the Federal Government over the national economy,

(3) The enhancement and de-politicisation of our institutions of accountability; to ensure their effectiveness. “Ruling Party” members need not necessarily be appointed into these sensitive offices, but the best hands possible that our society throws up. Results and not personal rewards are expected from them, they must therefore be so constituted as to win the public confidence and support vital for their success.

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MUSTAPHA, K:Ethics, Accountability And Good Governance: Introductory Remarks. A paper presented at the 9^th IACC Conference. For details, visit http://www./transparency.org/iacc/index.html

HOSSAIN, K:Ethics, Accountability And Good Governance:Some Reflections. A paper presented at the 9^th IACC Conference. For details, visit http://www./transparency.org/iacc/index.html

(4) The independence of the judiciary; to procure full and effective enforcement of our laws and sustain order in society

(5) Guarantee freedom of expression and information; to convince the currently apathetic citizenry that they can expose corruption in society and be amply protected by the law. In this regard, it is imperative that the recent campaign for a freedom of information bill be honoured and the bill, enacted into law, to protect whistle blowers and other key anti-corruption activists in society and widen the space for vigilant participative citizenry.

(6) Guarantee potency of the vote; as a compulsive political tool for ensuring good and responsible governance and people oriented public policies. If citizens vote counts, he can effectively exercise democratic restraint on his Government and minimize the now prevalent rascality among public functionaries.

(7) Government should divest from the economy and generally minimize the scope of administrative regulation and licensing, much of which has encouraged and sustained corruption in Nigeria. Government must divest appropriately and transparently, and concentrate on providing conducive atmosphere for citizens to engage in healthy competition and create wealth for the Nation.⁴⁹ The current Privatisation policy is a step in the right direction. However, it must be warned that althoughPrivatisation of state-owned enterprises may be viewed as the crucial institutional change required for attaining development, experience demonstrates, that Privatisation, even where properly pursued, cannot be perceived as an instant conversion from central planning to an idealistic model of a market economy. It is just the beginning of a long process of institution building. Transition to more effective systems of democratic governance may be jeopardised if the economy is left to market forces alone. Instead, it must be accompanied by robust regulatory measures, such as strengthening of the legal framework and the regulation of the financial sector, especially of capital markets.⁵⁰

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WOKOCHA, WORIKA, Etal:The Legal and Regulatory Challenges of Resource Control in Nigeria. A Paper presented at the 38^th Conference of The Nigerian Association of Law Teachers held in LASU, Lagos. 2002. P. 19
Bonhata, M.Ethics, Accountability And Good Governance “ A perspective from an emerging Market economy” see http://www./transparency.org/iacc/index.html.

(8) Civil society should energise and increase their vigilance as independent monitoring and assessment of public officers is always more effective than its bureaucratic equivalent.

In the final analysis, it is indubitable that as Dr Kamal Hossain has argued; to achieve accountability and social responsibility a creative role must be played by the state and its law-makers and policy makers. As to the nature of that role, I would like to paraphrase the conclusions of two recent studies, one of them published by the United Nations University, reasons as follows as follows: Too often, one could argue, governments, hierarchies and markets are considered as substitutes for each other. This is a false dichotomy. Today's economy requires a pluralism of organisational modes, each working in tandem with the other - each supporting the other. Just like the emerging managerial structures of twenty first century firms, we need governments to be lean flexible and anticipatory of change, to maintain an institutional framework which regulates, but does not control markets, promotes competition and equality of opportunity and upholds the rule of law.⁵¹

Whether democracy will be sustained in Nigeria or not, rests squarely on the enhancement of open processes and public accountability and these I submit, depend largely upon the vigilance of the people. I conclude as I have done elsewhere;

“Above all, we enjoin the people whose democracy the government operates, to be awake and alive to their rights and responsibilities. Good government depends not on the benevolence of government functionaries, but on the vigilance of the people. We must courageously and jealously guard our democracy that we may by so doing send a clear message to all, government and adventurers alike, that these great people under God’s sun will no longer tolerate a subversion of their destiny.⁵²

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HOSSAIN, K:Ethics, Accountability And Good Governance:Some Reflections. Op cit.

WOKOCHA, R. A.:Democracy, The Rule of Law and Democratic Governance in Nigeria. The Port Harcourt Law Journal, 1999, Vol. 1 No. 1, P.135.

END NOTES

* Senior Lecturer and Head, Department of Public Law Rivers State University of Science and Technology, Nkpolu, Port Harcourt and Executive Director, Schalesworths Center For Democracy and Development, Port Harcourt Nigeria.

1 MALAMUD, P. (Ed): Transparency In Government. 2004. USIS. Available online @ http://usinfo.state.gov/products/pubs/transgov/records.htm

MACDONALD, Chambers 20^th Century Dictionary 1981, pitman’s.

The Citizens in Democracy, are sovereign not the state or its officers. The state and the Government therefore belong to the people. Unlike in Monarchy where a King could say le etat est mon’.

By Solon who was Archon of Athens in 594 BC. See for details, Aristotle: The Athenian constitution, Translated by John Warrington, London. Dent Everyman. 1959. PP247-9.

ROEBUCK, C:The World of Ancient Times 1966 Charles Scribner’s Sons, New York Chapter xxii on Democracy in Rome.

See Arblaster infra chapter 4 on popular politics for detailed discuss of the

Democratic debates in America’s formative decade leading to the adoption of the constitution in 1886.

For Details, see Arblaster, A: Modern Democracy 1987 Open University Press.

Chapter 1.

Dance, E.H: The World Before Britain (1937) Longman’s, London, see also ROEBUCK, C: The World of Ancient Times Op cit P. 269

Dance, E.H: The World Before Britain Ibid. P.130

ROEBUCK, C: The World of Ancient Times Op cit P. 267-8

See also Article 2 of the French Declaration of the Rights of man and

The citizen 1789. Which similarly lists the aim of all political associations as preservation of liberty, property, security and resistance to oppression.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

Over T.J.R Faulkner of the People’s Party in 19 see. Guiness Book of Records,

28 Edition P.208.

Ibid

This is currently universally applied

Nigerian elections so far have largely lacked these key requirements. This has been responsible for the legitimacy crises that has trailed the state in Nigeria and many other African countries.

26.

In such states, it is traditional to refer to the country as the realm or estate of

The king and the king therein can do no wrong not because they don’t, but

Because one can not be said to wrong himself.

Hyden G. 1992:14

See for instance, S.

S.305. 1999 constitution of Nigeria

S.153, 1999 Constitution

See S. 150 and s. 175 of the 1999 constitution, for the Federation and the

States respectively.

34.

Under S. 6(6)

S.69 of the 1999

38.

Akinseye- George, Y: Legal System, Corruption and Governance in Nigeria, 2000. New

Century, P.72-95.

Asmal, K.: @ http://www/transparency.org/iacc/papers.html

41.

42.

43.

44.

HOSSAIN, K: “Ethics, Accountability and Good Governance some

Reflections

WOKOCHA, R.A: Democracy, The Rule of Law and Democratic Governance

In Nigeria. In The Port Harcourt Law Journal 1999, Vol. 1, P. 135.

MUSTAPHA, K:Ethics, Accountability And Good Governance: Introductory Remarks. A paper presented at the 9^th IACC Conference. For details, visit http://www./transparency.org/iacc/index.html

HOSSAIN, K:Ethics, Accountability And Good Governance:Some Reflections. A paper presented at the 9^th IACC Conference. For details, visit http://www./transparency.org/iacc/index.html

WOKOCHA, WORIKA, Etal:The Legal and Regulatory Challenges of Resource Control in Nigeria. A Paper presented at the 38^th Conference of The Nigerian Association of Law Teachers held in LASU, Lagos. 2002. P. 19

Bonhata, M.Ethics, Accountability And Good Governance “ A perspective from an emerging Market economy” see http://www./transparency.org/iacc/index.html.
HOSSAIN, K:Ethics, Accountability And Good Governance:Some Reflections. Op cit.

WOKOCHA, R. A.:Democracy, The Rule of Law and Democratic Governance in Nigeria. The Port Harcourt Law Journal, 1999, Vol. 1 No. 1, P.135.

LAWS AND REGULATIONS

Since the birth of the nation, there has been a myriad of laws to combat different faces of corruption. These will be treated under the following broad headings:

-Pre Existing Laws

-Efforts by different Governments

Pre Existing Laws:

The Criminal Code8 and Penal Code9 contain provisions which deal with the offence of corruption. The provisions however suffer from some defects and inadequacies. They deal mainly with the straightforward cases of demanding, receiving and offering gratification for some favour and cannot encompass modern and sophisticated methods of corruption.

The Criminal Code provisions are very technical and compartmentalized, resulting in so many loopholes that often persons who are obviously guilty of the offences charged are set free on technical grounds.

The penal code provisions on corruption are quite wide, more lucid and less technical than the criminal code provisions10.

The provisions of the two codes focus on public officers, the private sector is unaffected, and there is also a lack of any special institutional framework for dealing with the code offences.

Efforts Made By Successive Administrations:

Because of inadequacies in the Nigerian Laws on corruption, especially the lack of institutional framework, some past administrations resorted to adhoc measures to deal with corruption:

. The Corrupt Practices Decree 1975 (now repealed)-General Murtala Mohammed

had made an attempt at a comprehensive legislation to fight corruption,

unfortunately he did not to see it’s implementation. The decree created new

offences of corruption which extended to officers of public bodies as well as

government employees.

. Public Officers (Investigation of Assets) Decree (No5) of 1996. After the first

coup in 1966, the military administrator promulgated this decree and under it the

head of state could require suspected public officers11 to declare their assets.

Competent persons were appointed to verify the declarations. Of the twelve

Governors who served at that time ten subsequently faced corruption charges.

. 1979 Constitution provided for a Code of Conduct for public officers and a code

of conduct bureau for enforcing prescribed behaviour. A minister of national

guidance was appointed. This measure proved futile to cope with the problem of

corruption during Alhaji Shehu Shagari’s regime. The president had declared in

1982, that what worried him most among the problems confronting his

government was “moral decadence in our country. There is the problem of

bribery and corruption, lack of dedication to duty, dishonesty, and all such

vices.12

. War Against Indiscipline (WAI). This was instituted by the Buhari/Idiagbon

regime. The two were determined to fight corruption, they strictly enforced the

prohibition of public officers owning foreign accounts13. The regime was

overthrown in 1985 before they could achieve much.

. National Committee on Corruption and other Economic Crimes in

Nigeria (NCCEC0 was set up by the Babangida administration under the

Chairmanship of Hon Justice Kayode Eso CON. The committee did a good job,

Submitted a report with recommendations (including a draft decree) to president

Ibrahim Babangida on September 5, 1990, but the recommendations were never

Implemented. Corruption had gotten to such a level in this country as at that time

That it could be stated that the regime transformed corruption into the raison

D’ etre of state power. The president seemed to have had no notion of limits as

Far as corruption was concerned. He manipulated public Law to allow unbridled

Corruption. According to Larry Diamond, the rise of high level corruption,

Including dealing in narcotics in the highest level of the Babangida

Administration compromised the transition to democracy program.14 The 1998

State department report on drugs stated for example that “Nigeria is the hub of

African narcotics trafficking and Nigerian poly –crime organizations continue to

Expand their role in narcotics trafficking worldwide. Nigerian trafficking

Organizations control the drug markets of sub-Saharan Africa and operate drug

Distribution networks from strategic locations throughout the world--- the

Government of Nigeria’s counter narcotics programs have failed to materialize

Or have been ineffective. Efforts by the Nigerian Drug Law Enforcement Agency

(NDLEA0 have been hindered by widespread corruption15

Another manifestation of corruption that occurred during the Babangida regime

Was the 419 phenomenon

. Draft Decree on Corruption and Economic Crimes submitted by the Kayode Eso

Committee. This was printed and circulated by the Abacha regime to states for

Their comments, but as events turned out, this action was a mere façade. As far

As disclosures have gone, this was the worst era of corruption and there is no

Likelihood of Nigeria seeing a worse regime. There was reckless use of state

Power for self interest. The security machine was used to take the theft of state

Resources to an all high level. Under the Babangida administration the president

Had arrogated to himself through decree, the status of chief accounting officer of

The Central Bank so as to facilitate limitless theft of funds, and this continued at a

Higher level under the Abacha regime.

In addition to the Laws mentioned above, Nigeria also has the following:

The Advance fee Fraud Act No 3 of 1995

The Bank and other Financial Institutions Act, No 25 of 1991

The Code of Conduct Bureau and Tribunal Act cap Law of the Federation 1990

The Corrupt Practices and Other Related Offences Act 2000

The Failed Bank Act No 16 of 1996

The Foreign Exchange (Miscellaneous Provisions) Act No. 17 of 1995

The Money Laundering Act No 3 of 1995

The National Drug Law Enforcement Agency Act, Cap 253, Laws of the Federation of Nigeria (LFN), 1990

The Public Complaints Act cap 377 Laws of the Federation 1990

More recently, we have the corrupt Practices and Other Related Offences Act 2000 and

The Economic and Financial Crimes Act, which is still waiting for the Presidential

Assent.

The statute books are so full of laws to combat corruption that commentators have

Maintained that we do not need the ICPC to fight corruption on Nigeria. In addition to the National Laws there are several International Conventions, which Nigeria is a signatory to, such as the African Union Convention against Corruption and the United Nations Convention Against Corruption.

STRUCTURES

Nigeria has structures like the police and other security agencies that are charged with

The duty of investigating and prosecuting corrupt practices. There are other security agencies, which focus on specific sectors and work to check corruption in those sectors such as the customs and immigration services. In addition to the regular courts, there are sectoral tribunals such as the Code of Conduct Tribunal. The problem however is, how effective are these structures. When Anini16 was captured in December 1986 it was revealed that he was working with police officers. His capture led to the arrest of eleven police officers in the criminal investgation department in Benin who were his accomplice.

3 AGENCIES AND COMMITTEE

There are a nuber of oversight agencies working in different sectors to address diverse manifestations of corruption. There is the Independent Corrupt Practices and Other related Offences Commission – ICPC, The Code of Conduct Bureau (CCB), The Public Complaints Commission (PCC), The Economic and Financial Crimes Commission (EFCC), The Due Process Office, and the stakeholders committee of the Extractive Industries Transparency Initiative – ETI, the Auditor General Office, and regulatory agencies like National Agency on Food and Drug Administration – NAFDAC. In addition to these agencies, anti-corruption units and committees have emerged in several government ministries and parastatals to address corruption in those establishments. Lastly there are also the house committees of the two houses of the National Assembly and the African Parliamentarians Network Against Corruption- APNAC. House committees on anti-corruption have also been replicated in some State Houses of Assembly.

“A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
— former U.S. President James Madison, 1822

ADMINISTRATION OF JUSTICE AND NIGERIA’S NASCENT DEMOCRACY

Osita Nnamani Ogbu

Lecturer, Faculty of Law, Enugu State University of

Science & Technology, Enugu

Introduction

The chief aim of democracy is to prevent arbitrary government and to ensure that power flows from the consent of the governed. However, democracy has its own capacity for tyranny. Some of the most menacing encroachments upon liberty invoke the democratic principles and assert the right of the majority to rule.[1] Democracy must therefore be under the law in order to ensure that governmental power is exercised in accordance with pre-determined rules as opposed to the exercise of arbitrary power. John Locke stressed that law, not force, is the basis of government. A government without laws will be tyrannical. To Locke, wherever law ends, tyranny begins. Accordingly, he said that democracy is government by laws which are arrived at after long deliberations by properly chosen representatives of the people.

In a democracy under the rule of law, the nation’s government and its agencies will spring from, and operate under the law. The activities and operations of the government and its agencies should be based on, and controlled by, law. Law thus becomes the rule of the game. The judiciary becomes the referee or the umpire to ensure that the game is played according to the rules and it will stop or penalize any type of play which is outside the rules.

The judiciary thus is constituted the ultimate interpreter of the constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of Government, what are the limits on the exercise of such power under the constitution and whether any action of any branch transgresses such limits. It is also a basic principle of the rule of law which permeates every provision of the constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and that there is compliance with the requirements of law on the part of the government. This function is discharged by the judiciary by exercise of the power of judiciary review which is a most potent weapon in the hands of the judiciary for maintenance of the rule of law.[2] According to the International Commission of Jurists, “the rule of law is a dynamic concept which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which the legitimate aspirations and dignity of the individual citizens of the country may be realised.”[3]

A society consists of individuals who as of necessity have to interact for the purpose of achieving individual aspirations within the society as well as the society’s commonly shared values and aspirations. The consequence of such interaction also means and implies the emergence and existence of rights and benefits; as well as duties and obligations.[4]

Judicial power means the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its

subjects, whether the right relates to life, liberty or property.[5] Section 6 of the 1999 Constitution of Nigeria vests the judicial power of the Federation in the courts.

This work examines the administration of justice in the Nigeria’s nascent ‘democracy’, including the independence and impartiality of the judiciary, corruption in the judiciary, the delay in the judicial process and the role of the judiciary in the present political dispensation.

Independence of the Nigerian Judiciary

Independence of the judiciary means more than absence of interference from the other organs of government. It means:

… that deciding officers shall be independent in the full sense, from external direction by any political and administrative superiors in the dispensation of individual cases and inwardly free from the influences of personal gain and partisan or popular bias; thirdly, that day to day decisions shall be reasoned, rationally justified in terms that take full account both of the demands of general principles and the demands of the particular situation.[6]

The following factors have been universally acknowledged as affecting the independence of the judiciary: mode of appointment of judges; their security of tenure; remuneration and working conditions of judicial officers; retirement benefits and pension rights of judges; control of funds and staff by the judiciary.

Mode of Appointment of Judges

The mode of appointment of judges has serious implication for the independence of the judiciary. The country’s judiciary graduated from a colonial status when it was a department of the administration to post colonial period when it became a separate and third branch of government. Appointments to high judicial office during the colonial period was the responsibility of the Colonial Legal Service, which in practice, however, accorded some respect to the concept of judicial independence.[7] On independence in 1960 the Constitution provided for the establishment of a Judicial Service Commission for the Federation.[8] Similarly, Regional Constitutions provided for Judicial Service Commission for each Region.[9] All magisterial and judicial appointments were made on the advice of the Judicial Service Commission. On the inception of the Republican Constitution on 1st October, 1963, the Judicial Service Commissions were abolished, and appointments of judges were made by the President of the Federation or Governor of a Region on the advice of the Prime Minister or Premier as the case may be. Magistrates were appointed by the Public Service Commission. Political, ethnic and other parochial considerations then predominated in the choice of judicial officers. This constituted an assault on the independence of the judiciary and contributed to undermining confidence in the judiciary.

The 1979 Constitution restored the Judicial Service Commission for the Federation and the states and with the power to appoint vested on the President or Governor, as the case may be, on the advice of the Commission. However, under that Constitution, the Chief Justice of the Federation is appointable by the President without recourse to the Federal Judicial Service Commission. This mode of appointment has grave repercussions for the independence of the judiciary because the President could appoint an unsuitable person or a person he could easily influence. Furthermore, the composition of the Judicial Service Commissions and the identity of their members are such that they could be easily manipulated by the chief executives. The Attorneys-General who are political appointees wield very strong influence in the Commission.

Decree No. 1 of 1984 which came into force on the 31st December, 1983 abolished the Federal and State Judicial Service Commissions and created an Advisory Judicial Committee for the whole country.[10] The Advisory Judicial Committee makes recommendations to the Federal Military Government on the appointment of judicial officers.

Under the 1999 Constitution, a central agency, the National Judicial Council was created and charged with responsibility of recommending candidates for appointment to the higher bench at both Federal and State levels subject to confirmation of the Senate in the case of Chief Justice of Nigeria, Justices of the Supreme Court, President of the Court of Appeal and Chief Judge of the Federal High Court.[11] In the case of State Judicial Officers, the Governor makes the appointment on the recommendation of the National Judicial Council subject to the confirmation of the House of Assembly in the case of the Chief Judge of a State,[12] and the Grandi Kadi of the Sharia Court of Appeal[13] and the President of the Customary Court of Appeal.[14] The intervention of the National Judicial Council in the appointment of State Judicial officers may, strictly speaking, be considered a violation of the principle of federalism. However, our peculiar circumstances makes such intervention worthwhile in order to get the judges somewhat detached from the overbearing influence of state governors. In any case, the State Judicial Service Commission created by section 197(1) of the Constitution is empowered to advise the National Judicial Council on suitable persons for nomination to the office of Chief Judge and Judges of the High Court of a State. The composition of the State Judicial Service Commission makes the Commission a tool in the hand of a State Governor.[15]

Politics of Appointment of Judges

Hon. Justice A. I. Umezurike[16] has identified another factor connected with the appointment of judges which impairs the independence of such judges. The appointment of judges at both State and Federal levels has in some cases been turned into a geo-political affair which brings all sorts of traditional rulers, chairmen of town unions, leaders of thought or other social formations into the fray. In the result, many of these judges owe their appointment to these meta-legal geo-political cleavages rather than to merit or quality. Their fidelity to a large extent is owed to these meta-legal groups rather than to national interest, rule of law and due process. As aptly remarked by Sir Roberts-Wray. “The method of appointment of judges should, so far as possible, insulate the choice of candidates from political motives.”[17]

Security of Tenure

The UN Basic Principles on the Independence of the Judiciary provides that judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists. The International Commission of Jurists in the Declaration of Delhi 1959 stated: ‘The principle of irremovability of the judiciary, and their security until death or until a retiring age fixed by statute is reached, is an important safeguard of the rule of law. Although it is not impossible for a judge appointed for a fixed term to assert his independence, particularly if he is seeking re-appointment, he is subject to greater difficulties and pressure than a judge who enjoys security of tenure for his working life.”[18] The common law tradition of respect for the tenure of judicial officers is part of our colonial heritage. Thus on independence in 1960, the security of tenure of judges comparable to that of judges in England was made a constitutional provision. A judge was removable only for inability to discharge the functions of his office or for misbehaviour. Even on these grounds, the question of his removal must be referred to an independent tribunal and to the Privy Council.[19] In 1963, the Republican Constitution reversed the position and provided that a judge may be removed from office by the President of the Federation or the Governor of a Region on an address presented to him by the legislature, supported by not less than two thirds of all the members of the House praying that the judge be removed on the grounds of inability to discharge the functions of his office or for misbehaviour. Both the 1979 and 1999 Constitutions divided judicial officers into two groups for purposes of removal from office. The Chief Justice of the Federation and the Chief Judges of State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State are removable at the instance of the legislature, while all other judicial officers are removable at the instance of the National Judicial Council.[20] The provision for some judicial officers to be removable at the instance of the legislature is susceptible to abuse. In the words of the International Commission of Jurists:

The reconciliation of the principles of irremovability of the judiciary with the possibility of removal in exceptional circumstances necessitates that the grounds for removal should be before a body of judicial character assuring at least the same safeguards to the judge as would be accorded to an accused person in criminal trial.[21]

The U.N. Basic Principles also require that all disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicialconduct. The position of the ICJ was justified by the case of Kalu Anya v A.G. Borno.[22]In 1982 the Borno State House of Assembly commenced proceedings for the impeachment of the Chief Judge of the State. The Chief Judge fell out of grace with the legislature and the executive in the State because his judgments were in many cases against the State Government. The situation was saved by the Court of Appeal which held that unless a misconduct is established before a court or other tribunal the Assembly cannot validly pass a resolution praying for the removal of the Chief Judge.

The situation has become worse now when the legislative houses only exist in name but in reality are mere appendages of the executive.

If judges are to be hired and fired at the will of the executive or the legislature, they will form a very ineffective and porous shield, in the defence of right and justice. This is not to say that all cases of dismissal were done maliciously. The point being made is no matter the gravity of the alleged misconduct, due process must be followed. The irony of the situation is that bad judges who serve the interest of the executive are never removed. They continue to be protected by the interest they serve.

Remuneration and Working Conditions of Judicial Officers

By tradition a judge is not expected to be engaged in business ventures or to hold directorship of companies. His social life is cloistered and restricted to very discreet associations. Thus his social privations ought to be compensated for by generous conditions of service.[23] Generous conditions of service will also attract the right calibre of men to the bench and reduce the tendency of corrupt practices. A person who is not financially secure is more susceptible to corruption.

The salaries of judicial officers in Nigeria had never been impressive. The situation got worse with the advent of the Structural Adjustment Programme (SAP) in 1985. Nigerian judges started living in abject poverty while working under intolerable conditions. A comparative study of the best paid judges in Nigeria vis-à-vis what their counterparts earn in the United Kingdom is enough to show the abject poverty to which judicial officers in Nigeria have been wittingly or unwittingly sentenced to. As at 1988, the Chief Justice of Nigeria was earning N39,000.00 per annum. Following the recommendations of the Kayode Eso Panel on the Judiciary, the salary was in 1996 increased to N150,000.00 per annum.[24]His counterpart in England, the Lord Chancellor, was in 1988 earning £83,000.00 which translates to N9,960,000.00 at the prevailing exchange rate. Also in 1988, the English Law Lord (the equivalent of Justice of the Supreme Court in Nigeria) was earning £74,000.00 which translates to N8,880,000.00 at the prevailing exchange rate while his Nigerian counterpart, until recently earned N120,000.00. During the same period, the Judges of the British High Court (Queen’s Bench) (The equivalent of the High Court Judges in Nigeria) also earned £71,750.00 which translates to N8,600,000.00. His Nigerian counterpartpresently earns N100,000.00.[25] In effect the judicial officer in Nigeria earns about 1.5% of what his counterpart earns in England. The desire to make ends meet may tempt men of lesser calibre to succumb to gratification for the performance of their judicial functions. The emoluments of judicial officers have, however, been recently enhanced, though there is still room for improvement.

Retirement Benefits and Pension Rights of Judges

Retirement benefits and pension rights of judges are their social insurance against want and poverty on leaving office, especially as they are not permitted to practice on

retirement.[26] In Nigeria, retirement benefits and pension rights are expressed as a percentage of the personal emoluments. Consequently, where the personal emoluments are inadequate, the retirement benefits cannot be any better. The recent enhancement of the remuneration of judicial officers is tantamount to an improvement in their retirement benefits.

Control of Funds and Staff by the Judiciary

The logical implication of separation of powers under the 1979 Constitution of Nigeria is that the judiciary should control its fund and personnel. In the wake of that constitution, the judiciary started demanding to be in control of its staff and fund. This demand was misconstrued. It was argued in some quarters that what was being sought for by the judiciary would lead to the creation of a republic within a republic. One is at pains to observe that the argument over the demand of the judiciary was not extended to the legislature which was made self-accounting.

The 1999 Constitution made some far-reaching provisions bordering on judicial control of its funds. Section 84(7) of the Constitution provides that the recurrent expenditure of judicial officers in the Federation (in addition to salaries and allowances of judicial officers shall be drawn upon the Consolidated Revenue Fund of the Federation. Unfortunately, this provision is limited to judges of superior courts of record and does not extend to officers of inferior courts. By section 81(3) any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts for the Federation and the States. Furthermore, Section 162(9) provides that any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of courts established for the Federation and the States under Section 6 of the Constitution. These provisions are made to safeguard the independence of the judiciary. It must, however, be borne in mind that budgetary provisions for the judiciary will still be made by the executive subject to legislative approval.

There are other factors which, in the Nigerian context, hamper the ability of the judiciary to perform creditably. Some judges belong to secret societies. And it appears that the Nigerian judiciary is not left out in the pervasive phenomenon of corruption prevalent in the Nigerian society. Some court orders are disobeyed by the executive.

Membership of Secret Societies

Another despicable factor that impairs the objectivity and impartiality of judicial officers in Nigeria is the membership of secret societies by some judges. The 1999 Constitution of Nigeria in section 318 defines a secret society. As a result of the bond of fidelity among the members of secret societies, no matter the weakness or hopelessness of a case involving a co-cultist, and, or, no matter the nature of the crime involving a co-cultist, the bond of fidelity usually impelled the member judge to see him

through.[27]

Corruption

The level of official corruption and moral degeneracy in our land is alarming and agonising. The ills are not only deep, but also pervasive, covering all social institutions and private lives. The value system of Nigeria has been completely distorted. The age-long dictums such as “good name is better than silver and gold”, “knowledge is power” have given way to a new thinking that “money is power and that money alone matters.” However money is made in Nigeria, provided one is not caught in the act, there is nothing bad about it. Power is personalized in Nigeria. The state and its parastatals have become highly desired and prized, the control of which automatically leads to instant wealth. Any person who held government position and came out poor is generally regarded as foolish. Corruption has become a way of life in Nigeria.

The Supreme Court of Nigeria underscored the ugly state of affairs in the recent case of A.G. Ondo State v A.G. Federation[28] where Mohammed, JSC said:

It is quite plain that the issue of corruption in Nigeria society has gone beyond our borders. It is no more a local affair. It is a national malaise, which must be tackled by the Government of the Federal Republic. The disastrous consequences of the evil practice of corruption has taken this nation into the list of the most corrupt nations on earth.

Since Nigeria’s judiciary is composed of Nigerians, the story cannot be expected to be, and is not, different.

A learned commentator, Professor Yemi Osibanjo, has pertinently observed:

On the part of judges, corruption has, unfortunately, not been an irregular vice. In fact, a survey carried out in October 2000 on “Perceptions of Lawyers” in Lagos on corruption in the administration of justice reveals that: 99 percent of lawyers agreed that there was corruption in the Lagos State Judiciary. 80 percent of lawyers (between 11 and 15 at the Bar) agreed that the prevalence of corruption was either high or very high.[29]

The election tribunal for Akwa Ibom State was accused of corrupt practices by a petitioner, Dr. Ime Umanah, who contested the Governorship election under the ANPP. He alleged that the Tribunal members were bribed by the 1^st Respondent (Governor Attah) through the Chief Judge of Akwa Ibom State. It was alleged that the Chairman of the Tribunal Hon. Justice M.M. Adamu, while still carrying out her assignment as election tribunal chairman at Akwa Ibom State remitted the sum of N4 million to her daughter’s account with the Standard Trust Bank, Uyo and made a further remittance of N2.4 million on June 22 2003 to her son through the Standard Trust Bank, Calabar Branch.[30] The other members of the tribunal and members of their families were also alleged to have engaged in ostentatious lifestyle during the period of their assignment.[31]

Generals Ishaya Bamaiyi and Hamza El-Mustapha, who are standing trial for various cases of murder or attempted murder alleged to have been committed during the Abacha era had accused the trial Judge, Justice Ade Alabi, of demanding $10 million from them to pervert the course of justice. The case was however investigated by the National Judicial Commission (NJC) and the judge was cleared.[32]

The Kayode Eso Panel of Inquiry which was constituted in 1994 to look into the activities of members of the Nigerian judiciary indicted about 47 Judges for corruption, incompetence, dereliction of duty, unproductivity, polarization and indiscriminate use of ex parte orders.[33] Ironically, most of the indicted members of the bench are still on the bench. In January 2001, a Judge of the High Court of Lagos, Justice Adebanyo Manuwa, was allegedly dismissed for professional misconduct, abuse of office and corruption.[34] Recently, the Senate approved the removal of the Chief Judge of the Federal Capital Territory, Justice Dahiru Saleh for abuse of office and corruption. Saleh was one of the judges indicted in the Kayode Eso report.

Where the judiciary is corrupt, justice goes to the highest bidder. Dealing with corruption in the judiciary, Oputa, JSC said:

Money, they say, is the root of all evils. The bench is definitely not a place to make money. A corrupt judge is thus the greatest vermin, the greatest curse ever to afflict any nation. The passing away of a great advocate does not pose such public danger as the appearancee of a corrupt and/or weak judge on the bench for in the latter instance the public interest is bound to suffer, and justice . . . is thus depreciated and mocked and debased. It is far better to have an intellectually average but honest judge than a legal genius who is a rogue. Nothing is as hateful as venal justice, justice that is auctioned, justice that goes to the highest bidder.[35]

Corruption in the justice administration system is not limited to judges and magistrates. Lawyers and police officers have a share of the blame. There is the practice of presenting fake defendants to court only for the order obtained to be executed against a different person. This is more common in recovery of possession matters. Another form of corrupt practice is the faking of service of court process and the forgery of endorsement of service on court records. The aim here is to ensure non-appearance of the defendant to defend the suit, in order to enable the plaintiff obtain a default judgment against the defendant. Some lawyers also bribe court officials to get their cases assigned to particular judges.[36]

Speaking about corruption in the administration of justice in Nigeria, the Attorney General of the Federation, Akinlolu Olujinmi, said:

It will be invidious when talking about corruption in the judiciary to point accusing fingers only at judges without also inviting attention to corrupt lawyers. There is no doubt that some lawyers foster corruption by acting as the link between the corrupt judge and the litigant. Lawyers who engage in such practice are those who are not yet ready to exercise their intellect in conducting their client’s cases but prefer to rely only on their illicit contact with corrupt judges to win their cases. This should be a matter of serious concern to the profession.[37]

Corruption is also evident in the criminal justice process. Police bail has been turned into a money-spinning venture by the police.

Disobedience of Court Orders

A fundamental aspect of the doctrine of rule of law is that the orders of the courts should be obeyed. During military regimes, court orders were disobeyed with impunity. The position has not yet changed.

Disrespect for court orders have continued even in the Nigerian nascent democracy. Justice Okechukwu Okeke of the Federal High Court, Abuja, had once reminded the National Drug Law Enforcement Agency (NDLEA) Chairman, Bello Lafiaji and the Director of Prosecution, Femi Oloruntoba, of the dangers of flouting court orders. The court had scheduled contempt hearing against the two men for what it called persistent flouting and abuse of its order to produce a popular Lagos auto dealer, Lanre Shittu and others before him. The court had on November 20, 1999 ordered the Inspector General of Police to arrest the two contemnors and to produce them in court but the Inspector General of Police did not carry out the order.[38] In another case, an Ibadan High Court nullified the appointment of secretaries and members of the Local Government Education Authorities made by the Governor. The Governor disobeyed the order on the pretext that he had appealed against the decision even when there is no order of stay of execution.[39]

The Oyo State Government in 2002 disobeyed the order of High Court asking the local government caretaker committees to vacate their offices. An Ibadan High Court had ruled that the appointment of local government caretaker committees in place of elected local government officials is unconstitutional and ordered members of the caretaker committees to vacate their offices.[40] The order of an Abuja High Court that General Bamaiyi be produced in court in 1999 was disobeyed by the Federal Government.[41] The Federal Government also announced that it will not obey the order of an Abuja High Court presided over by Justice Wison Egbo-Egbo which restrained Dr. Chris Ngige from parading himself as the Governor of Anambra State.[42]

Disobedience of court order is a clear invitation to anarchy. The foundation of constitutional democracy is that there should be an agency to resolve disputes between members of society or between an individual or a group of individuals and the government or between different tiers of government. When redress of grievances can no longer come through the courts because court orders are no longer obeyed, self-help will become inescapable. In such a situation, the rule of law will give way to the rule of might. The society will then be organized on the basis of might is right as opposed to right is right.

However, the recklessness with which frivolous orders are issued by our courts today raises the question whether court orders should be obeyed at all times and in all circumstances. Court orders should be obeyed but the integrity of the judiciary should be restored. Without such integrity it will be difficult to canvass that court orders should be obeyed at all times.

A Critical Appraisal of some Landmark Decisions of the Courts

In normal legal systems the two competing theories of the role of the judiciary are the theories of judicial activism and judicial passivism. In contemporary Nigeria, a third theory has emerged – the theory of judicial rascality. The proponents of judicial passivism or the strict construction approach assign a passive role to the courts, namely to declare what the law is but not to make it, in strict fidelity to the doctrine of separation of powers. It seeks to ascertain the purport of the law through the medium of the words used. It assumes that the legislature has said what it means and means what it said.’[43] On the other hand, judicial activism assumes that every legislation has a purpose; that a constitution is a social charter of a dynamic society based on certain ideological or philosophical presuppositions. There are assumptions behind the words of the constitution. Consequently, in interpreting the constitution, it seeks to ascertain the underlying principles and to give effect to them.[44]

The Supreme Court in a number of cases approved the liberal principles in the interpretation of the Constitution. In the words of Udo Udoma JSC in Nafiu Rabiu v The State[45]

. . . the function of the constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the constitution. . . . My lords, it is my view that the approach of this court to the construction of the constitution should be, and so it has been, one of the liberalism . . .

In Ohuka v The State,[46] Oputa J.S.C. said:

The court (that is the Supreme Court) is not a mechanical and automatic calculator. No it is a court of law dealing with varying situations and applying the same law to these situations in order to do justice in each and every situation according to its peculiar surrounding circumstances.

Furthermore, in A.G. Bendel State v A.G. Federation and 22 Ors,[47] Andrew Obaseki, JSC said that while the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning.

Another concept with regard to the judicial function is fast emerging in Nigeria’s jurisprudence. It is the concept of judicial rascality. Judicial rascality arises where the judge decides cases in total disregard of relevant statutory provisions or binding judicial precedents without being driven by the end of justice. In other words, the judicial rascal is neither committed to following precedents nor doing justice. In the great majority of cases, judicial rascality is prompted by improper motive. The traditional judicial restraint is thrown to the winds. The rule of law means nothing to the rascal judge. Administration of justice and politics becomes one and the same thing. Justice is no longer according to law but is whimsical and capricious depending on the passing mood of the judge, his personal preferences and the changing political trends or climate. The rascal judge has contempt for justice and the rule of law. He conceives judicial power as the power for his personal aggrandizement. He sees judicial discretion as the power of the judge to decide what he likes and not what he ought to. In the hand of such judge, the law is most uncertain and unpredictable and most pliable. In such a situation the rule of law and the judiciary as an institution are mocked and caricatured.

Since the inception of the Nigerian nascent ‘democracy’ the judiciary has gravitated from activism to passivism and to rascality.

A decision of the Supreme Court which will pass for judicial activism par excellence is its decision in A.G. Ondo State v A.G. Federation.[48] The National Assembly enacted the Corrupt Practices and Other Related Offences Act No.5 of 2000. To implement the Act, an Independent Corrupt Practices Commission was set up. The Commission was empowered to among other things, receive and investigate any report against any person of conspiracy to commit, attempt to commit or the commission of an offence under the Act or under any law prohibiting corruption. The A.G. of Ondo State filed an originating summons in the Supreme Court against the Attorney-General of the Federation and joined the Attorney-Generals of the other 35 states as co-defendants in the suit. The Plaintiff sought, inter alia, a determination of the question whether or not the Corrupt Practices and Other Related Offences Act, 2002, is valid and in force as a law enacted by the National Assembly and in force in every State of the Federal Republic of Nigeria (including Ondo State). The Plaintiff also sought an order of perpetual injunction restraining the Attorney-General of the Federation from exercising any powers vested in him by the constitution or any other law in respect of the criminal offences created by any of the provisions contained in the Corrupt practices and Other Related Offences Act 2002.

It was contended for the Plaintiff, inter alia, that the Act is not in respect of a matter or matters either in the Exclusive Legislative List or the Concurrent Legislative List and therefore unconstitutional; and that the National Assembly has no power to make laws with respect to the criminal offences contained in the Act.

The Supreme Court in a unanimous decision held that the ICPC Act was constitutional. The Court held that since by virtue of section 4(2) of the 1999 Constitution, the National Assembly has the power to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List, it follows that the National Assembly is empowered to legislate under item 60(a) of the Exclusive Legislative List for the purpose of establishing and regulating the Independent Corrupt Practices and Other Related Offences Commission which it did. The ICPC, according to the Supreme Court, is by the provisions of item 60(a) in the exclusive legislative list to promote and enforce the observance of the Fundamental Objectives and Directive Principles of State Policy as contained under Chapter II of the Constitution which requires the state to abolish corrupt practices and abuse of power. The Supreme Court alluded to the menace of corruption in the land. Uwaifo, JSC said:

. . . in our own situation, taking the issue of corruption and abuse of power nationally will best serve the interests of all and the general welfare of Nigeria, both nationally and internationally. Corrupt practices have become an overwhelming malaise for Nigeria. It cannot be left totally to individual states.[49]

Another case where the Supreme Court adopted an activist stance is the case of Fawehinmi v Abacha[50] which turned on the relationship of the African Charter to Military Decrees or the Nigerian constitution. The Supreme Court held that the African Charter which has been enacted into Nigerian domestic law is a statute with international flavours. Being so, therefore, if there is a conflict between it and another statute, its provisions will prevail over those of that other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation. To this extent, the Charter possesses a greater vigour and strength than any other domestic statute. But that is not to say that the Charter is superior to the constitution, nor is the validity of another statute to be necessarily affected by the mere fact that it violates the African Charter or any other international treaty.

This decision must be hailed as preservative of human liberties because under traditional Anglo-Saxon jurisprudence international law is considered inferior to domestic law to the extent that where the two are in conflict, domestic law will prevail.

Another celebrated case decided by the Supreme Court under the present dispensation is the case of A.G. Abia State & 35 Ors v A.G. Federation.[51] The National Assembly had enacted the Electoral Act 2001. The Plaintiffs’ case was that a very careful perusal of the provisions of the Act reveals that they transgress the legislative competence of the Federal Government and make serious incursions into the legislative and executive functions of the states/plaintiffs as contained in the 1999 constitution. The plaintiffs said the areas of these incursions by the Defendant, are as reflected in the reliefs claimed by the Plaintiffs. The reliefs claimed by the Plaintiffs include:

(i) A declaration that no law enacted by the National Assembly can validly increase or otherwise alter the tenure of office of elected officers or as (sic) Councillors of Local Government Councils in Nigeria except in relation to the Federal Capital Territory alone.

(ii) A declaration that the National Assembly has no power except in relation to the Federal Capital Territory alone to make any law with respect to the following or any of them, to wit.

(a) the conduct of elections into the office of Chairman, Vice-Chairman or Councillors of a Local Government Council in Nigeria;

(b) the division of Local Government Area into wards for purposes of election into Local Government Councils in Nigeria;

(c) the qualification or disqualification of persons as a candidate for election as Chairman, Vice-Chairman or Councillor of a Local Government Council in Nigeria;

(d) the date of election into a Local Government Council; and

(e) the prescribing of the event upon the happening of which a Local Government Council stands dissolved.

The Supreme Court in its epochal decision held, inter alia, that apart from the power conferred in item II of the Concurrent Legislative List and section 7(6)(a) of the 1999 Constitution (power to make provision for statutory allocation of public revenue to Local Government Councils in the Federation), the National Assembly does not possess any other power to enact laws affecting local government. The sections of the Electoral Act 2001 affecting Local Government Areas, including the tenure of office of the Chairman and the Councilors were therefore declared null and void. This decision sounded a note of warning to all the strata of government that they must follow the path of constitutionalism.

One of the most controversial cases decided by the Supreme Court under the present dispensation is the case of A.G. Federation v A.G. of Abia State & 35 Ors (No.2).[52] The issues for determination in that case include the following:

1) What is the southern or seaward boundary of each of the eight littoral states for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that state.

2) Whether it is lawful for the Federal Government to appropriate 1% of the amount in the Federation Account to the Federal Capital Territory.

3) Whether it is lawful to deduct moneys from the Federation Account to service or pay debts owed by the Federal Government.

The Supreme Court held that the seaward boundary of a littoral state within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that state pursuant to section 162(2) of the constitution of the Federal Republic of Nigeria, 1999 is the low-water mark of the land surface thereof or (if the case so requires as in the Cross River State with an archipelago of islands) the seaward limits of inland waters within the state.

The Supreme Court also held that neither the state nor the Federal Government can charge its debts on the Federation Account and that the Federal Capital Territory does not qualify for distribution from the Federation account.

This decision generated heated controversy and passionate debates across the land. It was vehemently criticized by the scholars and jurists from the Niger Delta areas of the country. Strictly speaking, one does not see anything wrong with the decision when considered in the light of the provisions of the laws and statutes interpreted by the Supreme Court. It is however conceded that in so far as the littoral states suffer more the effects of off-shore oil exploration, they require special compensation from the proceeds of such activities and this can be conveniently provided for by an Act of the National Assembly.

In INEC & Anor v Alhaji Balarabe Musa & 5 Ors[53] the Court of Appeal opened up the political space when it struck down stringent and cumbersome guidelines prescribed by INEC for registration of new political parties. The Court held that there is no doubt that the Independent National Electoral Commission has power to register political parties and the National Assembly can legislate in regard to the exercise of those powers. Where, however, in the exercise of its legislative power to make laws to provide for the registration, monitoring and regulation of political parties, the National Assembly purports to decree conditions of eligibility of an association to function as a political party, it would have acted outside its legislative authority as stated in the Constitution. The INEC guidelines for registration of political parties were therefore held unconstitutional as it enlarges and adds to the provision of section 222 of the Constitution.

The only worrisome aspect of the judgment is where the Court of Appeal held that by virtue of section 40 of the 1999 Constitution, every person, including public office holders and civil servants have the freedom to assembly freely and associate with other persons to form and belong to any political party. According to the Court of Appeal, the section has made no exception and there is no proviso therein limiting its application to civil servants or public officers. Sections 79(2)(c) of the Electoral Act, 2001 and guidelines 5(b) of INEC guidelines of 17^th May 2001 were therefore held invalid because they were inconsistent with section 40 of the Constitution.

This decision has far reaching consequences. It means that military officers, members of the Independent National Electoral Commission, Judicial Officers, civil servants etc can belong to political parties. Such a situation will erode the independence and impartiality of these institutions and affect negatively the rights of ordinary people who may not belong to the ruling political party. This could not have been the intention of the constitution when all the provisions of the Constitution are read together. The Court of Appeal failed to advert to section 45(1) of the Constitution, which provides:

1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –

(a) In the interest of defence, public safety, public order, public morality or public health; or

(b) For the purpose of protecting the rights and freedom of other persons.

Sections 79(2)(c) of the Electoral Act 2001 and guidelines 5(b) of INEC guidelines of 17^thMay 2001 qualify as laws which are reasonably justifiable in a democratic society for the purpose of the protection of the rights and freedom of other persons. It is therefore submitted that this aspect of the judgment was rendered per incuriam.

Nigerian courts towed the path of passivism in a number of cases. In Mohammed Abacha v State,[54] the Appellant Alhaji Mohammed Sani Abacha was jointly charged along with three others before the High Court of Lagos State sitting at Ikeja on a four count information wherein it was alleged that they, inter alia, between one Kudirat Abiola. The last 2 counts charged the appellant alone and accused him of assisting 2 persons, Mohammed Abdul and Mohammed Aminu to murder Kudirat Abiola, and later providing them with various sums of money with intent to facilitate their escape from justice.

The appellant filed an application to quash the said information against him on the ground that there was nothing linking him with the charges. The trial judge refused the application. The appeal to the Court of Appeal was dismissed. On further appeal to the Supreme Court, the Supreme Court allowed the appeal by a majority of 4-1 on the ground that the information had not made a prima facie case against the accused.

In a powerful dissenting judgment, Ejiwunmi, JSC found that a prima facie case had been made out against the accused. It was in evidence that the appellant gave a car to Rogers and allowed his driver Mohammed Katako, to drive Rogers when Rogers carried out the operation. The Appellant also said in his own statement that he was present when Al-Mustapha, the first accused handed over machine guns to Rogers and his boys. The appellant also admitted that he gave ten thousand dollars to each of the assailants to flee the country. Based on the principles laid down by the Supreme Court in the earlier case of Ikomi v The State[55] Ejiwunmi JSC dismissed the appeal. Very instructive was the remark of the dissenting judge, to wit,

To hold otherwise, is in my respectful view, to submit to the tyranny of the majority in its capricious interpretation of settled principles laid down in Ikomi v The State.[56]

This case was a politically sensitive one. The composition of the Supreme Court raised the initial suspicion. The person assassinated was from the South West. The appellant was from Northern Nigeria. Incidentally, out of 5 Supreme Court Justices who heard the matter, 4 are from Northern Nigeria and the four gave judgment in favour of the appellant. The only justice from the South West gave a dissenting judgment. Ab initio, it is wrong for the Supreme Court panel to be so constituted. Section 14(3) of the Constitution requires that the Federal character be observed in the composition of any tier of government or any governmental agency or body or institution. It was a breach of the federal character principle to have a Supreme Court Panel made up of 4 Northerners and 1 Southerner, moreso when a Northerner is the accused in the charge. Furthermore, the decision of the majority justices run counter to the established principles of law.

The extent of the power of the President to modify existing laws was the issue in the case of A.G. Abia State & 35 Ors v A.G. Federation.[57] The Supreme Court had in the earlier case of A.G. Federation v Abia State & 35 Ors(No.2)[58] found that section 1(d) of the Revnue Allocation (Federation Account etc) Cap.16, Laws of the Federation of Nigeria, 1990 as amended by the Allocation of Revenue (Federation Account etc) (modification) Decree No.106 of 1992 was inconsistent with the provisions of section 162 of the Constitution of the Federal Republic of Nigeria 1999, in so far as the former made provision for allocation of revenue to a “special funds” and was accordingly declared null and void.

Following the said judgment, the President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo, issued an order titled: Allocation of Revenue (Federation Account, etc) (Modification) Order, Statutory Instrument No.9 of 2002. The order modified Cap.16 (as amended) to bring it into conformity with the provisions of the Constitution, by which it gave the entire 7.5 percent of the Federation Account represented by the annulled section 1(d) of Cap.16 to the Federal Government.

Dissatisfied with the said order, the State of the Federation sought:

(i) A declaration that paragraphs 2(1)(a) and (3) of the Allocation of Revenue (Federation Account, etc.) (Modification) Order, 2002 are unconstitutional, null and void and of no effect whatsoever.

The Supreme Court held that section 315(2) of the 1999 Constitution enjoins the President to effect such modifications in the text of an existing law as he may consider necessary or expedient to bring the law into conformity with the provisions of the Constitution. The word “modification is defied in the Constitution to include “addition, alteration, omission or repeal.” Thus, in exercising his power under section 315(2), the President may add to, alter, make omissions in or repeal any provision of an existing law in so far as it is necessary or expedient to bring such existing law into conformity with the provisions of the Constitution. The President is not limited to making textual changes.

The views of Professor Ben Nwabueze with which one is in total sympathy is pertinent here. According to the erudite constitutional lawyer, the use of the word modification in section 315(2) has perhaps without intending it, subverted the exclusiveness of the National Assembly’s power to make laws, an exclusiveness, which the separation of powers contemplates and affirmatively requires.[59] Unfortunately, the interpretation given by the Supreme Court in the instant case enables the President to make a foray into the legislative domain, thus the principles of separation of powers ordained by the Constitution for the purpose of preventing tyranny is attenuated. Furthermore, the modification made by the President was not for the purpose of bringing the Act in conformity with the provisions of the Constitution as there is no constitutional provision fixing the percentage of revenue from the federation account that should accrue to the federal government.

In Fawehinmi v Abacha[60] the passivist stance of the Supreme Court denied the nation the opportunity of unravelling some of the injustice and iniquities of the past. The facts of the case are as follows. On 7^th June 1999 the President constituted a Judicial Commission pursuant to powers derived from section 1 of the Tribunals of Inquiry Act, 1966. The terms of reference of the Commission includes to:

(a) ascertain or establish the causes, nature and extent of human rights violations or abuses with particular reference to all known or suspected cases of mysterious deaths and assassinations or attempted assassinations committed in Nigeria between the 1^st day of January 1984 and the 28^th day of May, 1999.

(b) Identify the person or persons, authorities, institutions or organisations which may be held accountable for such mysterious deaths, assassinations or attempted assassinations or other violations or abuses of human rights and determine the motives of the violations or abuses of human rights, the victims and circumstances thereof and the effect on such victims or the society generally of the atrocities.

The 1^st appellant, Chief Gani Fawehinmi, submitted a petition to the Commission in which he accused the respondents herein, General Ibrahim Babangida, a former head of state of Nigeria, Brigadier-General Halilu Akilu, former Director of Military Intelligence under General Babangida, and Brigadier-General Tunde Togun, former Deputy Director of the State Security Services of the murder of Dele Giwa, a Nigerian journalist murdered by a parcel bomb in 1986.

In the course of hearing the petition, the Commission caused to be served on the respondents summonses to appear to answer to the allegations made against them. The respondents filed suits at the Federal High Court seeking, inter alia,

(i) A declaration that the Tribunals of Inquiry Act, 1966 No.41 is not an enactment on any matter with respect to which the National Assembly is empowered to make law under the 1999 Constitution and accordingly, its effect is as a law enacted by a State House of Assembly.

(ii) A declaration that it is not lawful for the 1^st or 2^nd Defendants to summon the plaintiff to appear before it to testify or to produce documents.

The questions of constitutional nature were isolated and referred to the Court of Appeal for determination. The Court of Appeal held that Cap.447 was promulgated as Decree No.41 of 1966 by the Federal Military Government, and took effect from 31^st May 1999 as an existing law pursuant to section 315 of the 1999 constitution. The compulsive powers of the Commission were however held unconstitutional for contravening sections 35 and 36 of the Constitution. On appeal to the Supreme Court by the Appellant, the Supreme Court held, inter alia, that the National Assembly cannot enact a general law, for the establishment of tribunals of inquiry for, and applicable in, the Federation of Nigeria. The power to enact such a law has become a residual matter for the states in respect of which the Houses of Assembly can legislate for their respective states while the National Assembly can legislate on it only for the Federal Capital Territory.

Though this was not urged on the Supreme Court, if the Supreme Court had adopted the same principle as in A.G. Ondo State v A.G. Federation[61] perhaps this all important Commission would have been saved as a body set up to give effect to the Fundamental Objectives and Directive Principles of State Policy which requires the abolition of abuse of power. The objectives and directives also provides that the security of the people should be the primary object of government. The objectives and directives further enacted that Nigeria should be a nation based on social justice. This Commission actually should have promoted specific provisions under the fundamental objectives and directive principles of state policy. By section 315 of the Constitution, Cap.447 would be deemed to be a law enacted by the National Assembly for that purpose.

The decision of the Court of Appeal in National Assembly v President[62] could rightly be described as judicial passivism in the service of executive power. The Appellant in that case is the law-making organ at the Federal level in Nigeria – the Senate and the House of Representatives. The Electoral Act 2002 was passed in the House of Representatives in 2002 and transmitted to the Senate for concurence. The Senate passed the bill on 26^th February 2002 with amendments. The amendments on the bill were agreed upon and adopted and the bill was transmitted to the President on the 24^th of June 2002 for his assent. On 25^th and 26^th September 2002 by a motion of veto over-ride the two Houses of the National Assembly passed the bill into law because 30 days had lapsed and the President had failed to assent to the bill.

The 3^rd Respondent, INEC, was aggrieved with the passage of section 15 of the Electoral Act 2002 in relation to fixing the time and dates for conduct of elections into the office of the President and National Assembly along with Governors and therefore filed an originating summons at the Federal High Court, Abuja.

In the originating summons, the 3^rd Respondent enquired from the court among others whether the appellant can competently enact section 15 of the Electoral Act, 2002 when there are adequate constitutional provisions on the matter; and whether the appellant followed laid down procedure for passing the bill into law.

The trial court found that the appellant was properly constituted when it exercised its power under section 58(5) of the 1999 Constitution to over-ride the 1^st Respondent’s veto on the Electoral Act 2002 and that the Act was validly passed by the appellant. The

court however held that section 15 of the Act which encroached on the power vested on the 3^rd Respondent by the Constitution to fix dates for elections was unconstitutional.

The appellant appealed to the Court of Appeal, and the Respondents cross-appealed.

The Court of Appeal in unanimously striking on the appeal and allowing the cross-appeal held, inter alia, that under section 58(5) of the Constitution, in order to over-ride the veto of the President, each of the Houses of the National Assembly has to pass the bill again. This means that the bill has to go through like processes it had previously gone through when it was first passed. The Court of Appeal also held that the two-thirds majority required for over-riding the President’s veto is two-third majority of the total membership of the houses.

This decision has the effect of doing serious violence to the plain words of the constitution. It is preposterious to say that in order to override the President’s veto a bill has to go through again all the processes it went before its initial passage. That means that a bill already before the House has to be re-introduced again. On the issue of the required majority, the Constitution clearly provides in section 56(1) as follows:

Except as otherwise provided by this constitution, any question proposed for decision in the Senate or the House of Representatives shall be determined by the required majority of the members present and voting.

Section 58(5) did not require two-thirds majority of all the members. Where the constitution requires two-third majority of all the members, it said so clearly. In section 143(4) and (9) dealing with the removal of the President, the Constitution requires two-thirds of all the members and said so expressly. The principle of interpretation expressio unis est exclusio alterius is relevant here.[63]

Having examined the decisions that border on judicial activism and judicial passivism, we now consider those decisions that were rendered in the present dispensation which border on judicial rascality. Nigeria is today confronted with the phenomenon of judicial rascality. Judicial rascality in Nigeria manifested itself mostly in the abuse of ex parte injunctions or the grant of what is now known as ‘black market injunctions’. The undisputed leader of the pack of rascal judges in Nigeria today is Justice Wilson Egbo-Egbo. He had once restrained the National Assembly from passing a bill. The members of the last National Assembly perceived the Independent Corrupt Practices and Other Related Offences Commission (ICPC) as an instrument in the hand of the executive for political vendetta. They therefore set out to repeal the ICPC Act No.5 of 2000 and to enact a new Act to make the Commission independent of the presidency. A bill was introduced in the Senate for that purpose. The Senate passed the bill on 21 February 2003 and then forwarded the bill to the House of Representatives. The House of Representatives passed the bill on 12^th March 2003. The bill, having been passed by the two houses, was then transmitted to the President for assent. Meanwhile, some legislators (perhaps at the instance of the Presidency) instituted an action to challenge the passing of the bill. Justice Wilson Egbo-Egbo of the Federal High Court Abuja granted an interim injunction restraining the National Assembly from proceeding with the bill pending the determination of the suit. Obviously, the suit was to delay the passage of the bill since the life of that Assembly was coming to an end. On the expiration of 30 days from the date the bill was forwarded to the National Assembly for assent and when the President had not yet assented to the bill, the National Assembly decided to override the President’s veto. Justice Egbo-Egbo broke all existing records in infantile tempter tantruns and issued a warning that he would order the arrest of the leadership of the National Assembly for disobeying his order.[64] The then President of the Senate, Anyim Pius Anyim, in turn said that he had powers to order the arrest of the judge. The National Assembly eventually passed the bill, thus overriding the President’s veto.

Justice Egbo-Egbo had manifestly transgressed the principle of separation of powers by dabbling into the matter that comes within the internal domain of the legislature. In Ag. Bendel v Ag. Federation & 22^nd Ors[65], Fatayi Williams JSC said:

The object of the creation by the constitution of the three separate departments of government is not merely a matter of convenience or of governmental mechanism but is basic and vital, to preclude a co-minglying of different powers in the same hands. Each of the three department of government should be kept completely independent of the others so that the acts of each shall not be controlled by or subjected directly or indirectly to the coercive influence of either of the other.

The Court of Appeal in Asogwah v Chukwu[66] per Pats-Acholonu also said:

Courts should draw a line as to when it can justifiably and competently immerse itself in adjudicating in matters which either circumstantially or inferentially or is directly connected with the area of operation of the legislature. It is not part of the duty of the court to forage into areas that ought to vest either directly or impliedly in the legislature.

When the National Assembly eventually passed the Act, the most honourable justice Egbo-Egbo voided the Act based on oral motion.[67] This is notwithstanding the fact that there is in law a presumption of the constitutionality of an act of parliament.[68] Such a presumption cannot be rebutted through an oral application. To invite the court to void an Act of the National Assembly, there must be cogent and compelling reasons in law, and this can only be disclosed after full argument. As if the judges are in competition for the recognition of the executive, the Chief Judge of the Federal High Court, Justice Roseline Ukeje on 26th May 2003 also voided the Act which was passed on 7th May 2003. The speed with which the matter was tried and concluded and judgment delivered is remarkable and unusual of the Nigerian courts.

Perhaps, Lord Atkin had some of the Nigeria judges of the present epoch in mind when he said in Liversidge v Anderson[69]

I view with apprehension . . . the attitude of judges who, on a mere question of construction . . . show themselves more executive minded than the executive . . .

Justice Egbo-Egbo in the subsequent case involving the incumbent Senate President, Adolphus Wabara, demonstrated that he could go to any length in the service of executive power. After the National Assembly elections of 12 April 2003 in Abia South Federal Constituency, the returning officer, Festus Ukagwu, declared Elder Dan Imo of the All Nigerian Peoples Party the winner of the election.[70] The result was posted in the internet by the Independent National Electoral Commission INEC. Adolphus Wabara the candidate of the PDP was the runner up at the election. President Olusegun Obasanjo wrote a letter of congratulation to Elder Imo[71]. Events later started to take a twist when news started making the rounds that Adolphus Wabara was the candidate President Olusegun Obasanjo wanted for the office of Senate President based on his past loyalty to the President. Suddenly other results of the election started emerging. One of the subsequent results declared Wabara the winner of the election. According to Newswatch[72] account, Wabara went to the election tribunal in Umuahia to challenge his defeat. But in a swift twist, Wabara later withdrew the case from the tribunal and left for Abuja where he filed an ex parte motion at an Abuja High Court asking that INEC should issue a certificate of return to the rightful winner of the election. The court presided over by Justice Wilson Egbo-Egbo granted Wabara’s request on Monday, June 2, 2003. Based on the ex-parte order INEC issued a certificate of return to Wabara. On 3^rd June 2003, Wabara was elected the President of the Senate.[73] The Abuja Federal High Court thereby joined hands with unscrupulous Nigerian politicians to subvert the wishes of the electorate and to subvert the constitution it has sworn to uphold.

Justice Egbo-Egbo was on the news again when based on an ex-parte motion, he granted an interim injunction restraining Dr. Chris Ngige from parading himself as the Governor of Anambra State.[74] The Governor had earlier been abducted by his political godfather, Chief Chris Uba and the Assistant Inspector General of Police, Zone 9 Police Headquarters, Umuahia, Mr. Ige. He was restored to his position on the orders of the Inspector-General of Police. Justice Egbo-Egbo later stated that he signed the order of interim injunction in error, that he was deceived by the Chief Registrar who prepared the document for him to sign and he signed it without reading the contents.

Surprisingly, the Federal Government that had patronized Egbo-Egbo’s injunctions now said that it was not going to obey the injunction granted against Dr. Chris Ngige. That means that the Government picks and chooses those injunctions it will obey and those it will not obey.

On 17^th July 2003, Dr. Chris Ngige had based on another ex-parte motion obtained his own injunction from a High Court of Anambra State presided over by Justice Patrick Nwankwo Ajagu in suit No. A/230/2003 restraining the persons who later got injunction against him. The judiciary has thus become a laughing stock.

In Enugu State, there was crisis in the State Assembly in 2002 over the removal of Abel Chukwu as the Speaker. The House was then split into two groups of 10 and 14. The Group-10 was the protégé of the executive while the Group 14 sought to assert the independence of the legislative arm. The Chief Judge of Enugu State, Justice J.C.N. Ugwu in suit No. E/SO2/2002 granted an interim order based on an ex-parte motion restraining the 14 man group from functioning. Subsequently two members of the Group of 10 legislators defected to the 14-member group making them 16, that is to say, two-third of the House membership. Justice Ugwu later vacated the injunction. The 8-man group applied to another High Court Judge presided over by Mrs. Ngozi Emehelu for injunction restraining the 16-man Group from functioning. The 16-man Group questioned the jurisdiction of the High Court to entertain the matter on the ground that it is a political question. Before considering the question of jurisdiction, Justice Emehelu granted an injunction restraining the 16-man group from functioning. Meanwhile, the 8-man group functioned as the state legislature in a legislative house made up of 24 legislators. The matter subsequently went on appeal to the Court of Appeal.[75] The Court of Appeal in upholding the appeal held that when an issue of jurisdiction is raised in a case, it ought to be determined first. Accordingly, it was wrong for the trial high court to have made the order of injunction before determining whether it had jurisdiction or not. The Court of Appeal also held that the question of the removal of speaker of the House of Assembly was a political question which the Court has no jurisdiction to entertain as no provision of the constitution has been violated. Pats-Acholonu J.C.A. speaking for the Court of Appeal said, in a terse language:

It has become increasingly common for most crisis of political nature to find their way in the courts. The frequency with which some of the players in the political arena resort quickly to courts for solution of what may be described as quasi political crisis is becoming disquieting. The problem is that the courts are being goaded into something more of a political matter but appears to wear legal garb.[76]

Another decision that ranks very high as an act of judicial rascality is the ex parte order of injunction granted by Hon. Justice Augustine Ade Alabi restraining the Nigerian Labour Congress (NLC) from embarking on national strike to protest the increase in fuel prices announced by the Federal Government.[77] The NLC disobeyed the court order and embarked on the strike. In fact, the President of the NLC described the injunction as a black market injunction. An earlier strike embarked upon by the NLC in January 2002 over increase in fuel prices was terminated pursuant to a court order. After that incident, the President of the NLC vowed that the NLC would ignore frivolous court injunctions in future.[78] The question is whether the courts have become instrument of oppression. Has Karl Marx the Nigerian legal system in mind when he said that law is a tool in the hands of the dominant capitalist class to maintain their oppression and subjugation of the lower class? The Fundamental Objectives and Directive Principles of State Policy in Chapter II of the constitution proclaims that Nigeria is a nation based on social justice and that the welfare and security of the governed is the purpose of government. Section 13 of the Constitution enjoins all arms of government to give effect to the objectives and directives. A court which is minded about the welfare of the people and social justice cannot assist the government to implement policies that have negative implications for the welfare of the people.

Judicial rascality also manifested itself in the ex-parte injunction granted by Justice U.M. Kusherki of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/CV/688/02[79] which scuttled the National Convention of the All Nigerian’s People Party. Delegates from various parts of the country had actually arrived at Abuja and were accredited. It was a great disappointment when the Convention could not hold because the Independent National Electoral Commission (INEC) refused to monitor the convention purportedly in pursuance of the Court Order even when INEC was not restrained in the order. The ANPP alleged that the lawyer to the Plaintiff/Applicant in the suit, Mr. Essien E. Esema, is the Director of Legal Services of the rival People’s Democratic Party. The court was therefore accused of working in tandem with the rival political party to embarrass and frustrate another party, bring great inconvenience to the members, and put the party into great financial loss.

The conditions for the grant of ex-parte orders are clear. In Kotoye v CBN[80]Karibi-Whyte JSC, said:

The rationale for an ex parte application is the prevention of imminent irretrievable injury or damage to the right of one of the parties to the suit. Urgency is the necessary fulcrum of which the application rests. However, the basis of granting the application is also the existence of special circumstances and the urgency to protect the destruction of the rights involved in the suit.[81]

The Supreme Court in that case distinguished between real urgency and self-induced urgency. According to the Court, what is contemplated by law is urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side. If an incident which forms the basis of an application occurred long enough for the applicant to have given due notice of the application to the other side if he had acted promptly, but he delays so much in bringing the application until there is not enough time to put the other side on notice, then there is a case of self-induced urgency.[82]

In Ilori v Benson[83] Aderemi JCA warned:

I shall start by saying that if due care is not taken, proceedings for interlocutory and interim injunctions are more prone to abuse. I say so particularly in respect of interim injunction.

. . . A plaintiff must not hide under the pretence of asking for justice to surreptitiously seek to unleash that which is oppressive or vexatious on his opponent.

In most cases of judicial abuse of the remedy of injunction, the belief is that the courts have been moved by unseen hands to grant the injunction. That is why such injunctions are now being referred to as black market injunctions.

Speaking extra-judicially, the Chief Justice of Nigeria, Justice Mohammed Lawal Uwais said:

This brings to mind the incessant indiscreet granting of ex-parte applications for interim or interlocutory injunctions to stop events or authorities from carrying out their legitimate functions without regard to the inconvenience to be caused . . .

Only recently a High Court Judge stopped a State House of Assembly from passing a bill on the creation of new local government councils. If one may ask, is the judge not aware of the principle of separation of powers and doctrine of political issues? If the House of Assembly cannot debate a bill, then of what purpose is it created by the constitution.[84]

One final decision of a court that qualifies as an exercise in judicial rascality is the decision of Justice Husseini Baba Yusuf of the High Court of Abuja in Engr. Goodness Agbi & Anor v Chief Audu Ogbeh & 3 Ors.[85] The Plaintiffs had sought, inter alia, a declaration that Chief James Onanefe Ibori, the Governor of Delta State, by virtue of his conviction and sentence in case No. CR/81/95 is not qualified to carry the defendants flag as its gubernatorial candidate in the 2003 elections within the meaning of section 182(1)E of the 1999 constitution. The court found that the named person was charged before an Area Court of the Federal Capital Territory for negligent conduct and criminal breach of trust. The accused pleaded guilty and was sentenced to six months imprisonment or a fine of N500.00.

The High Court held that there was a plea of guilty and sentence but no conviction.[86] This is notwithstanding the fact that the court that determined the case was an area court which is not required to follow the strict rules of procedure and formalism of the superior courts or British type courts. The Supreme Court held in Odolfin & Anor v Oni[87]that in reviewing the decision of an area court or a customary court, the higher courts are enjoined to have regard to the substance rather than the form or technicalities. The Abuja High Court thus became an instrument for subverting the constitution which requires that persons convicted of certain offences should not vie for political offices.

Conclusion

In a democracy under the rule of law the Judiciary ought to be a force for stability by ensuring that all and sundry operate within the law. Such a judiciary must be independent in all its ramifications as well as impartial. The 1999 Constitution made some far reach provisions for the independence of the judiciary, though there is room for improvement on these provisions. In practice, however, the Nigerian judiciary has been far from being independent and impartial. The executive branch has overwhelming influence on the judiciary. Other factors that affect the independence of the judiciary include the policitization of the issue of appointment of judges and the membership of secret cults by some judges. The Nigerian judiciary is not free from the pervasive phenomenon of corruption in Nigerian society. The executive also disobeys some court orders.

Even where the judiciary is independent and impartial, the attitude of the judiciary to the interpretation of the constitution affects the rights of the people. In normal legal systems, the competing theories are the theories of judicial activism and judicial restraint. In the Nigerian situation, another dimension has been added. The country is now confronted with the phenomenon of judicial rascality. Since the advent of Nigeria’s nascent democracy, the judiciary has been oscillating from activism to passivism and to rascality. The judiciary contributed to the demise of Nigeria’s 2^nd republic and the abortion of Nigeria’s 3^rd republic. So far it has largely remained a force for instability in the nascent democracy.

END NOTES

[1] The Rule of Law in A Free Society op cit. P. 12

[1] See Section 113 and 124 1960 Constitution.

[1] S. 256 of the 1979 Constitution. See also section 292 1999 Constitution.

[1] The Rule of Law in A Free Society op. Cit. p 12.

[1] Suit No. FCA/K/141/82

[1] Karibi-Whyte op. Cit.

[1] See Circular No. EAO/P/267/Vol.1/27 of 5th June, 1996

[1] Ijalaye, D.A. “The Legal Profession and The Third Republic,” Address Delivered at the 1991 Annual Bar

Conference held at Owerri, Imo State from 26-30 August 1991.

[1] Section 292 (2) of the 1999 Constitution provides: “Any person who has held office as a judicial officer

shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal

practitioner before any court of law or tribunal in Nigeria.” Similar provision is made in Section 256 (2)

of the 1979 Constitution.

[1] Umezurike, A. I. op. cit.

[1] (2002) 9 NWLR (Pt.772) 222 at 347-348

[1] Paper delivered at NBA 2001 Annual Conference at Calabar. Published also in The Guardian, 9/10/2001,

p.66

[1] The Week, July 28, 2003 p.13

[1] Ibid p.14

[1] Newswatch August 25, 2003 p.27

[1] The News, vol.13 No.08, 30 August 1999 pp.15-23

[1] Vanguard, Thursday, Jan.11, 2001, p.1

[1] Quoted in Elias, T.O. and Jegede, M.I. (ed) Nigerian Essays in Jurisprudence (Lagos: M.I.J. Publishers,

1993) p.231

[1] A.A. Adeyemi “Corruption in the Administration of Justice in Nigeria” in Ignatius A. Ayua ed; Problems

of Corruption in Nigeria (Lagos: Nigerian Institute of Advanced Legal Studies, 2002) pp.77-79

[1] The Guardian, Sept.9, 2003, p.2

[1] The Guardian, Tuesday, Dec.5, 2000 p.80

[1] The Punch, Tuesday October 26, 1999 p.5

[1] The Guardian, June 27, 2002 p.1

[1] The Guardian, December 10, 1999 p.1

[1] Thisday, July 24, 2003 p.1

[1] Okere, B.O. Judicial “Activism and Passivism in Interpreting Nigerian Constitution” (1987) 1 C.L.Q.

Vol.36 p.1

[1] Loc cit

[1] (1981) 2 NCLR p.293 at 326

[1] (1988) 1 NWLR (pt.72) 539

[1] (1982) 3 NCLRI at 66, 71, 74

[1] (2002) 9 NWLR (Pt.772) 222

[1] At pp.404-405

[1] (2000) 6 NWLR (Pt.660) 28

[1] (2002) 6 NWLR (Pt.763) 264

[1] (2002) 6 NWLR (Pt.764) 542 S.C.

[1] (2003) 3 NWLR (Pt.806) 72

[1] (2002) Vol.32 W.R.N. 1

[1] (1986) 3 NWLR (Pt.28) 340

[1] At p.156 (Paras.25-35)

[1] (2003) 4 NWLR (Pt.809) 124

[1] (2002) 6 NWLR (Pt.764) 542

[1] The Guardian, August 30, 2002 p.7

[1] (2003) 3 NWLR (Pt.808) 691

[1] (2002) 9 NWLR (Pt.772) 222

[1] (2003) 9 NWLR (Pt.824) 104

[1] See Udoh v Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 403) 304

[1] The Punch, 8 May 2003, p.2

[1] (1982) 3 SCNLR 1

[1] (2003) 4 NWLR (Pt.811) 540 at 582 - 583

[1] Thisday, Thursday, 22 May 2003, pp.1 & 8.

[1] Nwabueze, op.cit. p.247

[1] (1942) A.C. 206 at 244

[1] Newswatch, June 16, 2003 p.20. See also Thisday, June 8, 2003 p.31

[1] Ibid p.

[1] Ibid, p.23

[1] The Guardian, Wednesday, June 4 2003 p.1

[1] Vanguard, Wednesday, July 23 2003 p.1

[1] Asogwah v Chukwu (2003) 4 NWLR (pt.811) 540

[1] At p.585

[1] See The Guardian, Saturday, June 28 2003 p.1

[1] Vanguard, March 22, 2002 p.3

[1] Published in Thisday, August 3 2002 p.47

[1] (2000) 16 WRN 71

[1] At 129-130

[1] Per Nnaemeka-Agu, JSC at pp.99-100

[1] (2000) 9 NWLR (Pt.673) 570 at 579

[1] The Guardian, Sunday June 15, 2003 p.A6

[1] Suit No. FCT/HC/VC/133/03

[1] Guardian Law Report, The Guardian, April 1 2003 p.80

[1] (2001) 5 NSQR 67

[1] Gerhart, E.C. (ed) The Lawyer’s Treasury (U.S.A.: Bobbs-Merril Co. Inc. 1963) p.21

[1] Per Bhagwati, C.J. in The State v NTN Pty Ltd and NBN Ltd 1988 CLB 43.

[1] The Law of Lagos 1961

[1] Jegede, M.I. What’s Wrong with the Law? (Lagos: Nigerian Institute of Advanced Legal Studies, 1993)

p.5.

[1] Per Griffith C.J. of the High Court of Australia in Huddart, Parker & Co. v Moor Head(1909) 8 C.L.R.

330 at 357 quoted with approval by the Nigerian Supreme Court in Bronik Motors Ltd. V Wema Bank

(1983) 1 SCNLR

[1] Jones, W.H., “The Rule of Law and the Welfare State” in Anneles de lafaculte de Droit d’ instanbul 1959

IX, p.245 quoted with approval in Aguda, A. The Judicial Process and The Third Republic, (Lagos F &

A Publishers Limited, 1992) pp. 35 – 36.

[1] Karibi-Whyte, A.G. The Relevance of The Judiciary in the Policy – In Historical Perspective (Lagos:

Nigerian Institute of Advanced Legal Studies, 1987) p.94

[1] S. 120(1) 1960 Constitution of Nigeria

[1] S. 53 Constitution of Northern Nigeria 1960; S. 52 Constitutions of Eastern and Western Nigeria 1960.

[1] Decree 17 of 1985 and Decree 107 of 1993 made similar provisions.

[1] Sections 231, 238, and 250 1999 Constitution.

[1] Section 271 of the 1999 Constitution.

[1] Section 276

[1] Section 281

[1] See part II, Third Schedule to the 1999 Constitution.

[1] “An Incorruptible Judiciary as an Accelerant to Eradication of Corruption in Nigeria” Independent

Summit, Friday, February 18, 2000 p.6.

[1] Quoted by Ademola, A. “Independence of the Judiciary: Problems and Prospects in Nigeria” Sir Louis

Mbanefo Memorial Lectures No. 4 1987 (Enugu: University of Nigeria, Enugu Campus) p.2

[1] Gerhart, E.C. (ed) The Lawyer’s Treasury (U.S.A.: Bobbs-Merril Co. Inc. 1963) p.21

[2] Per Bhagwati, C.J. in The State v NTN Pty Ltd and NBN Ltd 1988 CLB 43.

[3] The Law of Lagos 1961

[4] Jegede, M.I. What’s Wrong with the Law? (Lagos: Nigerian Institute of Advanced Legal Studies, 1993)

p.5.

[5] Per Griffith C.J. of the High Court of Australia in Huddart, Parker & Co. v Moor Head(1909) 8 C.L.R.

330 at 357 quoted with approval by the Nigerian Supreme Court in Bronik Motors Ltd. V Wema Bank

(1983) 1 SCNLR

[6] Jones, W.H., “The Rule of Law and the Welfare State” in Anneles de lafaculte de Droit d’ instanbul 1959

IX, p.245 quoted with approval in Aguda, A. The Judicial Process and The Third Republic, (Lagos F &

A Publishers Limited, 1992) pp. 35 – 36.

[7] Karibi-Whyte, A.G. The Relevance of The Judiciary in the Policy – In Historical Perspective (Lagos:

Nigerian Institute of Advanced Legal Studies, 1987) p.94

[8] S. 120(1) 1960 Constitution of Nigeria

[9] S. 53 Constitution of Northern Nigeria 1960; S. 52 Constitutions of Eastern and Western Nigeria 1960.

[10] Decree 17 of 1985 and Decree 107 of 1993 made similar provisions.

[11] Sections 231, 238, and 250 1999 Constitution.

[12] Section 271 of the 1999 Constitution.

[13] Section 276

[14] Section 281

[15] See part II, Third Schedule to the 1999 Constitution.

[16] “An Incorruptible Judiciary as an Accelerant to Eradication of Corruption in Nigeria” Independent

Summit, Friday, February 18, 2000 p.6.

[17] Quoted by Ademola, A. “Independence of the Judiciary: Problems and Prospects in Nigeria” Sir Louis

Mbanefo Memorial Lectures No. 4 1987 (Enugu: University of Nigeria, Enugu Campus) p.2

[18] The Rule of Law in A Free Society op cit. P. 12

[19] See Section 113 and 124 1960 Constitution.

[20] S. 256 of the 1979 Constitution. See also section 292 1999 Constitution.

[21] The Rule of Law in A Free Society op. Cit. p 12.

[22] Suit No. FCA/K/141/82

[23] Karibi-Whyte op. Cit.

[24] See Circular No. EAO/P/267/Vol.1/27 of 5th June, 1996

[25] Ijalaye, D.A. “The Legal Profession and The Third Republic,” Address Delivered at the 1991 Annual Bar

Conference held at Owerri, Imo State from 26-30 August 1991.

[26] Section 292 (2) of the 1999 Constitution provides: “Any person who has held office as a judicial officer

shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal

practitioner before any court of law or tribunal in Nigeria.” Similar provision is made in Section 256 (2)

of the 1979 Constitution.

[27] Umezurike, A. I. op. cit.

[28] (2002) 9 NWLR (Pt.772) 222 at 347-348

[29] Paper delivered at NBA 2001 Annual Conference at Calabar. Published also in The Guardian, 9/10/2001,

p.66

[30] The Week, July 28, 2003 p.13

[31] Ibid p.14

[32] Newswatch August 25, 2003 p.27

[33] The News, vol.13 No.08, 30 August 1999 pp.15-23

[34] Vanguard, Thursday, Jan.11, 2001, p.1

[35] Quoted in Elias, T.O. and Jegede, M.I. (ed) Nigerian Essays in Jurisprudence (Lagos: M.I.J. Publishers,

1993) p.231

[36] A.A. Adeyemi “Corruption in the Administration of Justice in Nigeria” in Ignatius A. Ayua ed; Problems

of Corruption in Nigeria (Lagos: Nigerian Institute of Advanced Legal Studies, 2002) pp.77-79

[37] The Guardian, Sept.9, 2003, p.2

[38] The Guardian, Tuesday, Dec.5, 2000 p.80

[39] The Punch, Tuesday October 26, 1999 p.5

[40] The Guardian, June 27, 2002 p.1

[41] The Guardian, December 10, 1999 p.1

[42] Thisday, July 24, 2003 p.1

[43] Okere, B.O. Judicial “Activism and Passivism in Interpreting Nigerian Constitution” (1987) 1 C.L.Q.

Vol.36 p.1

[44] Loc cit

[45] (1981) 2 NCLR p.293 at 326

[46] (1988) 1 NWLR (pt.72) 539

[47] (1982) 3 NCLRI at 66, 71, 74

[48] (2002) 9 NWLR (Pt.772) 222

[49] At pp.404-405

[50] (2000) 6 NWLR (Pt.660) 28

[51] (2002) 6 NWLR (Pt.763) 264

[52] (2002) 6 NWLR (Pt.764) 542 S.C.

[53] (2003) 3 NWLR (Pt.806) 72

[54] (2002) Vol.32 W.R.N. 1

[55] (1986) 3 NWLR (Pt.28) 340

[56] At p.156 (Paras.25-35)

[57] (2003) 4 NWLR (Pt.809) 124

[58] (2002) 6 NWLR (Pt.764) 542

[59] The Guardian, August 30, 2002 p.7

[60] (2003) 3 NWLR (Pt.808) 691

[61] (2002) 9 NWLR (Pt.772) 222

[62] (2003) 9 NWLR (Pt.824) 104

[63] See Udoh v Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 403) 304

[64] The Punch, 8 May 2003, p.2

[65] (1982) 3 SCNLR 1

[66] (2003) 4 NWLR (Pt.811) 540 at 582 - 583

[67] Thisday, Thursday, 22 May 2003, pp.1 & 8.

[68] Nwabueze, op.cit. p.247

[69] (1942) A.C. 206 at 244

[70] Newswatch, June 16, 2003 p.20. See also Thisday, June 8, 2003 p.31

[71] Ibid p.

[72] Ibid, p.23

[73] The Guardian, Wednesday, June 4 2003 p.1

[74] Vanguard, Wednesday, July 23 2003 p.1

[75] Asogwah v Chukwu (2003) 4 NWLR (pt.811) 540

[76] At p.585

[77] See The Guardian, Saturday, June 28 2003 p.1

[78] Vanguard, March 22, 2002 p.3

[79] Published in Thisday, August 3 2002 p.47

[80] (2000) 16 WRN 71

[81] At 129-130

[82] Per Nnaemeka-Agu, JSC at pp.99-100

[83] (2000) 9 NWLR (Pt.673) 570 at 579

[84] The Guardian, Sunday June 15, 2003 p.A6

[85] Suit No. FCT/HC/VC/133/03

[86] Guardian Law Report, The Guardian, April 1 2003 p.80

[87] (2001) 5 NSQR 67

ADMISSIBILITY OF NEWSPAPERS IN JUDICIAL PROCEEDINGS:

AN EVALUATION OF THE DECISION IN THE CASE OF HO V I & S INT’L LTD

Valentine B. Ashi, Esq

INTRODUCTION

The Evidence Act[1] has created three broad categories of cognizable evidence, which constitute the fulcrum of proof in judicial proceedings[2].These include: oral evidence, documentary evidence and real evidence. In practice, the other two categories of evidence are tendered in the course of oral testimony. Yet, the input of documentary evidence in the probative process is quite significant, indeed[3]. So is the controversy surrounding its scope and application to concrete situations in a court of law[4]. One such area of (raging) controversy is whether newspapers are to be considered as part of ‘public documents,’ within the meaning of the law of evidence in Nigeria. An answer either way will most certainly impact on the admissibility of this category of evidence at the trial, since slightly varied rules govern the admissibility of documents, depending on their categorization, as public or private. Indeed, the theme of this paper is inspired by what seems to be a common practice in trial high courts nowadays, where counsel are readily predisposed to raising objections to the admissibility of facts contained in newspapers, especially in libel and election cases, because they conceive them to constitute part of the broad category of documents classified as ‘public documents’ under the Evidence Act. And such objections are in turn actuated by subjective perceptions of the rule about the forms in which public documents are receivable in evidence. One view is that only certified true copies of public documents are admissible in evidence. As such, if newspapers are to be reckoned as public documents, for purposes of admissibility, then, goes the argument, only certified true copies of newspapers issued by the National Library of Nigeria ought be admissible in evidence. But there are those who feel otherwise, insisting as they always do that the law does not prohibit the admissibility of primary texts of public documents. And that, it is only when the primary material is unavailable would there be need to resort to secondary evidence in the form of certified true copies. On the aggregate, the opponents of certification insist that even if newspapers are public documents, nothing precludes their being admitted without certification.

This paper attempts to review the law on the point, especially in the light of the recent Court of Appeal decision in the case of Ho v. I. and S.Int’l. Ltd.[5] The thesis of this paper is that even though the court did not adequately digest the issue as might have been expected, when it declared that ‘newspapers are not public documents,’ its decision, nevertheless, points at the direction in which our attention should be focused in dealing with the admissibility of newspapers in judicial proceedings. We propose to begin, first by restating the relevant and most important aspects of the statutory framework for the classification and admissibility of documentary evidence under the Evidence Act; next by scrutinizing important aspects of related legislation on the subject, particularly, the National Library Act, the now repealed Newspapers Act and the Newspapers Law of Lagos State, respectively. Thirdly, by examining rationes in earlier decisions relating to the controversy and, finally, an attempt at evaluating the case in hand, in the light of those previous decisions, the statutory enactments under reference, as well as the practical problems that usually attend the effort made at procuring documentary evidence in proof of a case in court, with particular reference to newspapers. In conclusion, it is observed that the decision in the case under review has only ‘scorched the snake and not kill it,’[6]because the decision still leaves open the question: ‘in what form may secondary evidence of a newspaper be tendered in evidence?’

CLASSIFICATION OF DOCUMENTARY EVIDENCE

The Evidence Act classifies documentary evidence into public and private, each of which has a prescribed form for admissibility in the probative process.

Section 109 of the Act provides as follows:

“The following documents are public documents-

(a) documents forming the acts or records of the acts of the acts-

(i) of the sovereign authority;

(ii) of official bodies and tribunals;

(iii) of public officers, legislative, judicial and executive, whether of Nigeria or

elsewhere;

(b) public records kept in Nigeria of private documents.

Section 110 further provides that :

“All other documents other than public documents are private documents”

PROOF BY DOCUMENTS.

Under the Evidence Act, the proof of facts contained in documents is either by primary or secondary evidence.[7] Primary evidence (otherwise referred to as ‘the original’) means the document itself being tendered in evidence.[8] Where the original is not available to be tendered in evidence, the Act provides that secondary evidence of it is admissible.[9]However, what is secondary evidence for the purpose of admissibility depends on whether the document in question is a public or private one. If it is a public document, within the meaning of section 109 quoted above, then the only permissible secondary evidence of it is a certified true copy, made in the form prescribed in section 111 of the Act[10]. But if it is a private document a variety of options are prescribed as secondary evidence of private documents, depending on the nature of the original text that is said to be unavailable. For example section 97(1)(c) and(2)(a) provides that when the original is lost or destroyed and all possible search has been made for it, any kind of secondary evidence may be admissible of its content. To this end even oral evidence, as prescribed in section (95)(e) is admissible. For the foregoing reasons, it is important to understand the classification of documents, because this possesses the inherent potential of also underlining the form in which secondary evidence would be admissible in the absence of the original. In regard to classification into public or private, it is submitted that it is not difficult to appreciate which documents are classed under section 109 (a) quoted above. The problem usually revolves around those that may be conceived as legitimately coming under section 109 (b), because there cannot be an exhaustive check list of these. Even so, some private documentary transactions that are required to be registered with public offices can easily be reckoned as belonging to this second category. For example, deeds of conveyance registered with the various land registries or memoranda and articles of association of companies incorporated under the Companies and Allied Matters Act[11] are, surely, some of the best examples of ‘ public records kept in Nigeria of private documents’, within the purview of Section 109 (b) of the Evidence Act. But, whither newspapers? Are they public or private documents?

ARE NEWSPAPERS[12] PUBLIC OR PRIVATE DOCUMENTS, FOR PURPOSES OF ADMISSIBILITY?

Some scholars and practitioners strongly feel that they are public documents but there are many who feel otherwise. It is easy to treat this question lightly. But practice shows that it is quite unsafe to do so. Indeed, what is important about this classification here is that, if we conceive them as public documents then the rule on the admissibility of secondary evidence of public documents will apply to newspapers. If they are not to be considered as public documents then they will be treated at all times and for all purposes as private documents, including the application of the rules of admissibility of private documents. As stated earlier, one view is that newspapers are public documents, which can only be proved by tendering certified true copies from the National Library. This appears to have been influenced by a rather inaccurate appreciation of the provision of Section 4 of The National Library Act[13].The relevant portion of the said section provides as follows:

“(1) The publisher of every book published in Nigeria shall within one month

after the publication deliver at his own expense to the National Library three

copies of the book, two of which shall be kept in the National Library for

permanent preservation….”

Again, undue account appears to have been taken of the Newspapers Act.[14] The only provision of worthy note in it is in section 3, which provides as follows:

“3(1) No person shall print or publish or cause to be printed or published any newspaper unless the proprietor, printer and printer shall each have previously-

(a made, signed and sworn before a magistrate or a commissioner for oaths and registered in the office of the Minister an affidavit the several matters and things

following –

(i) the correct title or name of the newspaper,

(ii) a true description of the house or building wherein such newspaper is intended to be printed, and

(iii) the real and true names and places of abode of the persons intended to be the proprietor, printer and publisher of the newspaper; and

(b given and executed and registered in the office of the Minister a bond....approved by the Attorney-General of the Federation ….and issue a certificate to that effect.”[15]

Furthermore, in dealing with the presumption of genuineness of certain public documents, Section 116 of the Evidence Act provides as follows:

“The court shall presume the genuineness of every document purporting to be the official Gazette of Nigeria or of a State or the Gazette of any part of the Commonwealth or to be a newspaper or journal, or to be a copy of the resolutions of the National Assembly printed by the Government Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.”

The expression ‘proper custody’ as used above is vaguely described in Section 124 as follows:

“Documents are said to be in proper custody....if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”

A combined reading of the four sections of the three pieces of legislation quoted above appears to have overly influenced the conception that newspapers are public documents. Such a view may not be totally wrong. But the crucial question is: For what purpose are they to be treated as public documents? An answer to this question is inexonerably tied to a consideration of the form in which primary and secondary evidence of public documents is receivable in evidence. It appears that judicial opinion on the admissibility of primary texts of public documents is far from settled[16]. But what is certain is that where secondary evidence of public documents are sought to be tendered, only certified true copies are admissible, as provided in section 97(1) and (2)[17]. Thus if the argument is that newspapers are public documents, having regard to the contending views as pointed out above, it is still doubtful whether a newspaper bought across the road is admissible. Yet in section 116 of the Evidence Act, the court is enjoined to presume the genuineness of Gazettes, newspapers, etc. if produced from proper custody. But it would be recalled that in Ogbunyiya v. Okudo[18], the Supreme Court stated that newspapers and Gazettes need not emanate from proper custody in order for the presumption to be made. Rather, it is ‘…other documents directed to be kept….’ appearing in the second limb of the section that need emanate from proper custody.It was from this perspective that the late Chief F. R. A. Williams, SAN, had argued that, having regard to section 15(1) of the Newspapers Law of Lagos State, newspapers cannot be regarded as anything but public documents, the secondary evidence of which can only be in the form of a certified true copy.[19] The said section 15(1) relied on by the late Chief Williams provides as follows:

“The printer and publisher of every newspaper shall, upon every day which such newspaper shall be published, deliver or send by post to the State Commissioner a copy every newspapers published, and of every supplement thereto, signed by the printer and publisher thereof, and the same shall be filed and kept by the said state commissioner.”[20]

On the premise of the above provision, Chief Williams submitted that:

“When the State Commissioner files a newspaper, it becomes a public document as defined in section 108 of the Evidence Act[21]….it follows that only a certified true copy and no other form of secondary evidence of a newspaper would be admissible in evidence”

One cannot help but agree with the late learned icon on the point. It is a complete misconception to imagine that a newspaper cannot be tendered in evidence except in the form of a certified true copy, in spite of the Supreme Court’s decision in Ogbunyiya’s case. Where a primary copy exists and is available, it ought to be received in evidence without a certificate placed on it by the Library. As we have already seen the National Library Act does not prescribe this as a condition for admissibility. Rather it emphasizes that copies of ‘books’ published in Nigeria should be deposited with the National Library and not ‘newspapers’. And one does not need any aid to interpretation to distinguish ‘books’ from ‘newspapers’, whichever the context that is in view. Even so, where the primary copy of the book is available in the bookshop, it is difficult to see why a court would refuse to admit it in evidence in proof of a fact it is intended to establish. Furthermore, section 3 of the Newspapers Act only prescribed pre-conditions to be fulfilled before a newspaper could even be published at all. Perhaps, section 15(1) of the Newspapers Law of Lagos State quoted above is the only statute that has made a direct and express provision for the keeping of newspapers after publication. Even so, it does not provide that only the copies so kept with the Commissioner for Information should be admissible in evidence, since that would be clearly unconstitutional; regard being had to the fact that ‘Evidence’ is an item on the Exclusive Legislative list. To this end, it is submitted that to view newspapers as provable only by means of certified true copies is a misconception.[22] Rather, it is only when a primary copy is not available that resort may be had to the opportunity provided by section 15 of the Lagos Newspapers Law, in order to tender a certified true copy under section 97(1)(e)& (2 )(a) of the Evidence Act, in the same way as the provisions of section 4 of the National Library Act may be invoked, where a primary copy of a book cannot be found any where.

Proponents of the view that newspapers are provable only by means of certified true copies often cite as authority decisions in libel cases such as those of Ajakaiye v.Okandeji[23], Ugor v. Okafor[24], Awoniyi v. The Reg.Trustees of AMORC,[25]etc. It is, submitted, however, that none of these or any other reported decision(s) of the superior courts have laid down any rule that the admissibility of newspapers is only in the form of certified true copies produced from the National Library. Perhaps, an overview of the crucial aspects of these cases may be of assistance in throwing more light on the point being made here. Firstly, in Okandeji’s case the Supreme Court (coram: Sir Ian Lewis, Charles Olusoji Madarikan, Atanda Fatai-Williams, JJSC ) was invited to consider whether, by merely admitting the fact that the Daily Times newspaper was printed and published was sufficient proof of publication of the alleged libelous statements. Their Lordships held that such an admission without more was in sufficient. In the words of Sir Ian Lewis, JSC,(delivering the judgment of the court):

“We see no substance in this appeal. We think that the learned trial judge was entitled on the evidence before him to come to the conclusion that the plaintiff failed to prove publication of the libel complained of. The admission that the ‘Daily Times’ was printed and published did not of itself establish publication. The appeal is accordingly dismissed…”

Although their Lordships did not emphasize the point in the rather terse judgment, as reported, the above decision must have been based on the well founded common law principle that proof of ‘publication’ of a libelous statement is indicated by showing that a third party did read it[26]. Failure by a plaintiff to prove that a third party, other than the printer or publisher, did read the statement is fatal to his case[27]. To this end, it must have been the sense of their Lordships that, it is not sufficient that there was an admission that the newspaper containing the alleged libelous statement was printed and published by the Daily Times newspaper, without any evidence that someone did in fact read the alleged statement.

In Ugor v. Okafor[28] , another case concerning libel, the Court of Appeal held that ‘publication’ in our context need not be made to more than a single third party in order to constitute adequate proof that it was read by a third party. However, more importantly, the court distinguished between prima facie evidence of publication and clear evidence of publication. With particular reference to publication in a book or newspaper the Court stated that:

“…it is not necessary in all cases to prove that the libelous matter was actually brought to the notice of some third party. If it is made a matter of reasonable inference that such was the fact, a prima facie case of publication will be established. This is particularly so when a book, magazine or newspaper containing the libel is sold by the defendant. Thus a libel in any such documents like a book magazine or a newspaper or post card (posted) is prima facie evidence of publication by the proprietor, editor, publisher and printer and any person who sells or distributesit…”[29]

Emphasizing further, by way of distinction, the court stated that:

“Where the material is produced to the court by the National Library

of Nigeria that will be a clear evidence that it was published to a third

party.” [30]

Going by the dictum in Okandeji quoted above, it would appear that an admission that a newspaper is printed or published by the defendant constitutes no evidence of ‘publication’ of a libelous statement contained in it. The plaintiff must show that the alleged libelous statement was in fact read by someone other than the plaintiff and defendant. But evidence that the plaintiff habitually sells or offers the newspaper for sale to the public constitutes prima facie evidence that someone did read it. Yet this is only a feeble effort incapable of securing judgment in favour of the plaintiff, as he is expected to take further steps to establish by clear evidence that a third party did read it. What is ‘clear evidence’ in our context is a question of fact. Surely, when a third party enters the witness box to state that he read the libelous statement complained of in the very edition of the newspaper in question, such an assertion could be a good example of ‘clear evidence’ of publication. However, there could be other means of establishing it by ‘clear evidence’. One other means is the production of a certified true copy from the National Library as suggested in Ugo’s case above.

Awoniyi’s case, another claim for damages for libel, was an appeal against the judgment of Koofreh, CJ of Cross River State High Court. The alleged libelous statements were contained in three editions of an ECWA- sponsored newspaper known as “Today’s Challenge”, of March/April 1984; May/June, 1984; July/August, 1984, respectively. Each of these editions were admitted in evidence and marked as ‘Exhibits 1’, ‘1A’ & ‘1B’, respectively. Importantly, each of these papers were produced and tendered by the National Library. The fact that they were produced from the National Library assisted the court in treating them as ‘clear evidence’ that they were published to a third party, the National Library in this case. The court did not make the production of the papers from the National Library a mandatory pre-condition for their admissibility.

From the foregoing authorities, it seems appropriate to conclude that, at least in cases of libel, there has never been any laid down principle by the superior courts that newspapers should be treated as public documents for all occasions. Rather, what is clear from the cases reviewed here, especially that of Ugo v.Okafor, is that it is in the interest of the plaintiff, because he bears the burden of proof, to lead credible evidence to establish ‘publication’ of his claim of libel. He can do so by means of the following:

(i) By tendering a newspaper bought across the road.

This will only constitute prima facie proof of publication as he would need to still call a witness to testify that he in fact read it, before he may be said to have established clear evidence of publication .On the strength of a combined reading of Ajakaiye v. Okandeji,and Ugo v. Okafor, even if it be admitted by the publisher that he prints newspapers under a particular title, which are sold across the nooks and crannies of this country, the plaintiff still cannot succeed unless he can also show that at least one person did in fact read the alleged offending publication. But such an admission made by a defendant or if there be some other proof tending to show that he habitually sells such newspapers might constitute prima facie evidence of publication. Yet even this effort will not guarantee the plaintiff success. In fact, he would very likely be non-suited for coming short of establishing ‘publication’ as a fundamental ingredient of the wrongful act, on the basis of which damages are measured.

(ii) By tendering a copy from the National Library.

On the strength of Ugo v. Okafor, such effort constitutes clear proof of publication. This obviates the need to lead evidence to prove that a third party read it, as the National Librarian himself is such a third party. Once this is done, and barring any credible defence, the trial court would be entitled to enter judgment for the plaintiff and award such damages as seem just and appropriate to make restitution for the plaintiff’s mutilated reputation

It is pertinent to point out here that the copy produced from the National Library, for the specific purpose of proving ‘publication’, need not be the Certified True Copy (secondary evidence) envisaged in Sections 97 and 111 of the Evidence Act. But it is prudent to have it so certified. Yet, if for any reason certification cannot be readily obtained, it is submitted that any copy of a newspaper is primary evidence of the other so that any other person apart from the National Librarian or his subordinate staff can produce and tender the newspaper. In other words, even a person who came to read in the library can borrow a newspaper and tender it in evidence in court. Once that is done it would constitute clear evidence that a third party did read the paper containing the defamatory matter. By Section 94(4) of the Evidence Act, where documents are produced from one uniform process such as printing, lithography or photography, each of the copies produced is primary evidence of the other. It need not be emphasized that the production or ‘manufacture’ of a newspaper offers a good example of the type of documents envisaged in Section 94(4) of the Act. Importantly, and as has already been alluded to earlier on,[31]the Act does not expressly prohibit the admissibility of primary evidence (original copies) of all manner of public documents for all purposes. In regard to newspapers, specifically, we have seen that there is judicial authority for saying that the court should presume their genuineness upon their being put forward in court, not withstanding the custody from which they were produced[32]. To this end, it is submitted that even a newspaper from the National Library is conceived as a public document, an uncertified primary copy is admissible, unless no other primary copy can be found anywhere else.

THE DECISION IN HO VS I & S INTERNATIONAL LIMITED[33]

It is curious, but quite relieving, to note that this case, unlike other cases reviewed here, is not connected with defamation. Nevertheless, the central theme of this essay reflects a significant aspect of the case. It is also interesting to note that, perhaps for the first time a superior court found occasion to specifically and deliberately make a pronouncement on the evidential status of a newspaper as a document in judicial proceedings, with particular reference to the classification of documents into ‘public’ or ‘private’ under the Evidence Act.

SUMMARY OF THE FACTS AND ISSUES

This was an appeal against the decision of the High Court of Kaduna State, delivered on the 30^th of January, 2002. The aspect of the proceedings which are of importance to us here took place in the appellate court. Prior to the hearing of the appeal on the merit appellant’s counsel, J.B.Daudu, Esq. SAN, filed an application by way of a preliminary objection challenging the legitimacy of the decision appealed against; when he complained that the judgment of the court below was delivered in chambers and not in open court. As would be expected, the application elicited a response by way of a counter- affidavit. Among the documents annexed as exhibits to the applicant’s motion was a copy of the “Thisday Newspaper” which was marked “EXHIBIT 1”.[34]

This was one of the issues seriously contested by the respondent’s counsel, J.A. Achimugu, Esq., who contended that the said exhibit 2 is a public document and as such only a certified true copy of it is admissible by the court. Although the editors of the law report did not avail us the privilege of knowing the basis on which counsel to the respondent anchored his argument, neither can we tell, what was appellant’s counsel’s response to the contention, we however know that the court rejected the contention by respondent’s counsel on the point. But for a better appreciation of the court’s approach in dealing with the issue, it is perhaps better to reproduce the relevant aspect of the judgment here.

“Exhibit 1-THISDAY newspaper of the 10^th May, 2002 does not fall into the category of documents covered or referred to as public documents under section 109 of the Evidence Act, Laws of the Federation of Nigeria, 1990. Newspapers and magazines in Nigeria and indeed the world over have come to command such aura of respectability and reliance among the reading public that surprisingly, even among learned gentlemen of the legal profession the tag ‘public document’ is better ascribed to them than ‘private documents’. This is a wrong concept for as far as the Nigerian law of evidence is concerned, they are not public documents but private documents”[35]

The above dictum is self-explanatory but the decision, with due respect, falls short of expectation as it provides an inadequate clue to the resolution of the perennial problem encountered in the admissibility of public documents. But, perhaps this point becomes clearer upon evaluation of the significance of the decision as a binding precedent.

EVALUATION OF THE RULING

We have so far tried to illustrate that the trend of decided cases by superior courts do not seem to support the view that newspapers must be certified by the National Library in order to make them admissible. That being the case, the logical conclusion is that any newspaper bought from the street is admissible in proof of a fact contained in it. But, where the paper is not available in its original form the problem of which form of secondary evidence of its content is admissible is immediately thrown up. Would it then be any of the forms prescribed for the admissibility of secondary evidence of private document in section 97(1) & (2)? A literal construction of the court’s pronouncement in this case would inevitably elicit an affirmative answer. Indeed, implicit in the court’s decision is the notion that only certified copies of public documents are admissible on all occasions. Thus, probably overawed by such a conception their lordships came to the irresistible conclusion that newspapers are not public documents. But as we have already illustrated, the Supreme Court had already made an exception for newspapers and gazettes when it was called upon to evaluate and apply section 116 in Ogbunyiya v. Okudo.[36] These two, especially are the subject of presumption without regard to ‘proper custody’.

It is quite regrettable that the Court spare any moment to view the issue from this perspective. Nevertheless, it is submitted that the actual value of this decision lies in the futuristic calculation that it has the potential of stemming the persistent subscription to the view that only certified copies of newspapers are admissible in evidence. What the court could not tell us is what form of secondary evidence of a newspaper is admissible.

It would be a rare occurrence that no copy of a past edition of a newspaper can be found whenever the need arises. However, should such an unlikely event occur, it might be prudent to obtain a certified copy from the National Library. Thus, a certified copy produced from the National Library (in the event of loss or destruction of the primary copy) would be better and more useful than a photocopy or the like, which is produced from private archives, since the former is capable of conferring a rebuttable presumption of genuineness in terms of section 116 of the Evidence Act. Be that as it may, it is submitted further that by not delimiting the type of secondary evidence of newspapers that is admissible, the court unwittingly allowed adequate inference to be drawn from its decision that even oral evidence can be given of the contents of a past edition of a newspaper, the primary copies of which have been shown to have been destroyed

GENERAL SUMMARY AND CONCLUSION

For a long time, it appears that there was a raging controversy as to whether newspapers bought from the vendor along the street could be tendered in evidence. Some felt this was possible and represented the correct position of the law. But there were those who felt otherwise. Those who held this contrary view were influenced in their thought by the twin notion that newspapers are public documents and only certified true copies of public documents are admissible in evidence. Specifically, such proponents relied on section 4 of the National Library Act, read together with section 3 of the Newspapers Act and sections 109(b) and 116 of the Evidence Act, as well as a cursory reading of some decisions of the Supreme Court. But, we have seen that a closer scrutiny of those statutes indicate that none of them contains any rule that newspapers are public documents, which are to be tendered in proof of facts which they contain, in the form other than the original bought along the street. Interestingly, in none of the previously decided cases did any of the statutes mentioned feature in the resolution of any problem relating to documentary evidence. Howbeit the controversy appears partially settled by the Court of Appeal in its recent decision in Ho v. I. & S. Int’l. Co. Ltd., to the end that a newspaper bought from a vendor can be tendered in evidence. And although the court itself did not say so it is submitted that there would be no need to tender a certified true copy from the National Library, except if a question about its genuineness or authenticity of the contents is in issue, or when no other copy of the particular edition can be found. Importantly, in cases of libel, if the intention is to provide ‘clear’ evidence of publication to a third party, such a certified copy from the National Library is not mandatory if the plaintiff can otherwise prove that the alleged libelous statement was published to a third party. It is also noteworthy that the Court of Appeal, quite rightly, did not make any reference to either the Newspapers Act or the National Library Act in arriving at its decision. It also did not make any policy statement in support of its decision. Yet, it is submitted that it would be cumbersome to expect that unless a certified copy of a newspaper is produced in court the court cannot act on the one bought from the vendor. Finally, by classifying newspapers as not falling within the definition of public documents it follows that they are private documents, so that the rules of admissibility of secondary evidence of private documents, including oral evidence of the contents would apply to newspapers. It is submitted, however, that the real value of the decision lies in the fact thence forth, and until the Supreme Court decides otherwise, there would be no need to object to the admissibility (in evidence) of a newspaper bought from the vendor.

* LL.B., LL.M., Barrister – at – Law and lecturer, Nigerian Law School, Bwari – Abuja. [I am grateful to my colleagues, Dr. Paul Idornigie & P.C.Okorie, Esq., for their respective suggestions, which have helped in enriching the content of this paper. But I remain personally responsible for whatever error that exists in it.]

[1] .CAP.112 LFN 1990 (CAP.E.14 LFN 2004). Note, however that there is yet no enabling law to facilitate judicial notice to be taken of the 2004 edition of the Laws of the Federation.

[2].The Act does not apply to all manner of inter partes proceedings. Arbitral and other ADR. Proceedings, for example, are not included. See, Section(2) of the Act.

[3] In Fashanu v. Adekoya (1974) 1 All NLR. 35, the Supreme Court, exalted documentary evidence, when it said that where it is placed side by side with oral evidence it should be accorded greater weight.

[4] The advent of modern information technology, with its varieties of paperless record of transactions, has put to serious question traditional conceptions and the legal definition of what ‘documents’ truly are. Indeed, in many jurisdictions, of which Nigeria is one, legal reform in this very crucial area is rather unacceptably slow.

[5] (20005)All FWLR (254) 822..

[6] To borrow from an allegorical expression imputed to the inimical ‘Lady Macbeth’, in one Shakespeare’s masterpieces, the epic drama, Macbeth

[7] See section 93

[8] See section 94. The section lists a variety of forms of documents that may be reckoned as ‘primary’ evidence or ‘the document itself’.

[9] See sections 95 and 96.

[10] See section 97(1) (e) and (2)(c)

[11] CAP 59LFN 1990; (CAP. C20 LFN 2004)

[12] Except in a few cases where some state governments still own and publish newspapers, most newspapers in Nigeria are owned and published by private entrepreneurs.

[13] CAP 264 LFN 1990 CAP N56 LFN 2004

[14] Now repealed

[15] See corresponding provision in respect of compliance in the state.

[16] In Anatogu v.Iweka 11(1995) 9 SCNJ 1 the Supreme Court was of the view that there is no such provision in the Evidence Act. This has been followed in a number of decisions of lower courts. For example, the Court of Appeal took the same position in Yaro v. UBN, PLC(2000) 5NWLR(pt.657) and Lawson v. Afani Continental co. ltd (200) FWLR (pt.109) 1736. But the same court reached a contrary decision in Daggash v. Bulama (2004) All FWLR (pt.212) 1666. In spite of this the Supreme Court’s decision is still the law, having regard to the doctrine of Judicial Precedent, hinged on stare decisis.

[17]See, Minister of lands v. Azikiwe(1969) All NLR 48, Daily Times V. Williams (1986) 4 NWLR (pt.36) 526

[18] (1979) 6-9 SC 32, (1979) 12 NSCC 77.

[19] See The Comet newspaper of monday, April 4, 2005, particularly @ p. 34.

[20] Ibid. This provision has no parallel in the Newspapers Act.

[21] Now section 109.

[22] This is commonly noticed in practice, especially in election petitions and libel cases.

[23] (1972) 1 SC 92.

[24] (1996) 3 NWLR (pt.438) 548.

[25] (1990) 6 NWLR (pt.154) 42.

[26] See Gartley On Libel & Slander, 9^th edition, p. 127.

[27] See Ugo v.Okafor (supra)

[28] Supra, note 9.

[29] @ p.561Underlinning mine

[30] ibid. See also Fawehinmi v. Akilu (NO.2) (1994) 6 NWLR (pt.351) 837.

[31] See note 14 infra

[32] See, Ogbunyinya v. Okudo (supra)

[33] Supra. See note 4 infra.

[34] The attention of the editors of the All FWLR is hereby drawn to an error in the report: the lead ruling refers to the same Thisday newpaper both as exhibit 1 and exhibit 2. This should be corrected, please.

[35] Per Alagoa, JCA @ p.828, para D-G.

[36] Supra.

CONSTITUTIONAL INTERPRETATION IN NIGERIA:

AN APPRAISAL

CLIFFORD ANAELE NWANYANWU, ESQ.

INTRODUCTION

The truism that nature abhors staticsm finds eloquent testimony in the major and notable events in the development of the Nigerian Nation. The march from Independence to the present has been a journey livened up with landmark events that have proved important in the constitutional development of the country. At each stage the courts by way of constitutional interpretation have been called upon to pronounce on the validity of acts and procedures.

In a paper of this nature the most that can be done is a futuristic projection as a dynamic country such as Nigeria will be too hard to predict in finality terms. Based therefore on the past this writer has attempted to lay in this work the plausible constitutional and developmental patterns, and as well analyze the likely legal ramifications in consonance with any such developmental patterns.

INDEPENDENCE BACKGROUND

The attainment of Independence in 1960 marked the emergence of Nigeria as a self governing geographical entity with a distinct National Status. Thence even if theoretically the territory of Nigeria ceased to be governed by any other country but by Nigeria itself.¹

The Independence Act made major innovations such as vesting constitutional status to a Head of State at the Federal level and on the Governors at the States, establishment of a Judicial Service Commission as a safety valve for Judicial Independence and a provision for Constitutional amendment. One technical aspect of the Independence Act that may have not been appreciated was that prior to Independence the Queen of England as a symbol of the Sovereign Powers of Great Britain exercised enormous Power over Nigeria as a dependence of Great Britain. But with the Act of 1990, the Queen was no longer the exerciser of executive role over Nigeria on the advice of the British Government. The powers were then exercised in her own right as the Queen on the advice of the members of the Nigeria

Government thereby recognizing the dual Executive structure of the separateness of the Head of State and Head of Government. The Act of 1960 granting Independence to Nigeria was a manifestation of a series of activities dating back to the annexation of Lagos in 1961². There is ample facts to support the argument that the seed of Nationalist spirit was itself sowed at the very beginning of the British occupation of the various entities later to be known as Nigeria.³ The adoption of the parallel parliamentary system of Government in Nigeria as in Britain had all the basic features of a parliamentary democracy which included plural Executive by which the Governor General who was the Head of State was different from the prime Minister who was the Head of Government at the Central level. Similarly in the then regions we had premier heading the council of Ministers as Head of Government while the Governor was the constitutional Head of the Region. The political dynamics inherent with the running of a dual Executive confronted the country through the Western Nigeria crisis culminating to the case of Adegenro vs.

Akintola⁴. This case and the others emanating from it ordinarily centered on the construction of the provision of the power of dismissal of an unpopular premier by the Governor in the case of the Centre or Region as the case may be.

THE FIRST REPUBLICAN EXPERIENCE

The legal ramification of Independence to the Nigerian Nation was consolidated in the 1963 Republican Constitution⁵. By virtue of this constitutional milestone the last vestiges of the British Imperial eminence in the Nigerian legal, constitutional and political scene was obliterated. The era of allegiance to the Queen became a thing of the past as Nigeria became a Republic with the abolition and the Regional governors as the case may be.

The major features of the 1963 constitution include the establishment of four Regions, the parliamentary system of government was retained with bicameral legislature at the Federal and Regional levels, provisions on fundamental Human Rights, separate Regional Constitutions, etc.

As an attribute of its sovereignty the Federal legislature was empowered to make for the peace, order and good government of Nigeria or any part thereof. This includes the Federal Territory of Lagos. The constitution in the distribution of powers between the Federal and Regional Governments created two lists. These were the Executive and the concurrent lists. As is to be expected, the executive jurisdiction of the Federal Government covered all areas concerning the executive and maintenance of the federal constitution and also for all matters to which the parliament had power to legislate. In the same vein the Regional executive authorities had powers for the execution and maintenance of the particular regional government. The limitation was only to the extent that no such exercise of power by the region shall be exercised in any manner as to impede or prejudice the exercise of the power or functions of the Federation nor endanger the continuance of Federal Government in Nigeria.

On the Judicial scene the constitution ushered in the Supreme Court of Nigeria as the highest judicial authority. The constitution provided for the appointment of at least one Regional representative. Similarly there were to be Regional courts to be established by the various Regional legislatures.

GENERAL CANONS OF STATUTORY INTERPRETATION.

The idea of constitutional interpretation is a tasking one on that it turns around as to the question of the role of the courts. This essentially turns to the question of the purpose and role of Law.

In the most elementary form interpretation generally refers to the decoding of dialectical formulations couched in complex forms by a process of deductive and/or inductive reasoning. This reasoning is not done in a vacuum. It is at this point that the context under which the dialectical formulations used are essentially to be examined. This in essence is what Judicial Review is all about⁶. The ascertainment of the intention of the draftsman is the proven duty of the courts. The courts in undertaking the task of constitutional interpretation often fall back on the age long principles of statutory interpretation⁷. A consideration of the main principles will be pertinent here.

THE LITERAL RULE

More often expressed as the “grammatical interpretation” the literal rule enjoins the court not to travel outside the ordinary grammatical meaning of a statute. Any piece of legislation should be construed on the literal meaning of the terms used. That such terms or words should be accorded their ordinary and their present day meaning. Proponents of this principle of interpretation contend that it is the duty of the court to decipher the object or intention of a particular statute. This intention it is argued can be deduced from the very wordings of the statute itself.

A classical enunciation of this principle of statutory interpretation is the judgment of Chief Justice Tindal in the Sussex Peerage case⁸, where the learned Chief Justice observed that: “the only rule for the construction of act of parliament is that they should be construed according to the intent of the parliament which passed the Act. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the law giver”.

The import of this being the belief that the meaning of a statute can be gleaned from the face of the language itself. But this is not always so as experience have shown over the years. As has rightly been pointed out “Infact, it is not always clear what constitutes a word’s meaning as normal meaning”.⁹

THE GOLDEN RULE

According to this rule the lateral interpretation of a status should always be follwed except in such cases where the statute is apparently defective. A status may be defective as a result of ambiguity, inconsistency or unreasonableness. In which case the court will apply the literal rule with caution and in case of any difficulty, the Golden rule enjoins it to go beyond the words of the statute to ascertain the legislative intent.

The Golden rule of interpretation was well articulated by Parke, B. when he stated that:

“It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified. So as to avoid such inconvenience and no further”.¹⁰

The golden rule as a matter of fact does not displace the literal rule but comes handly when the courts have some difficulty in the strict application of the literal rule. In the recent past the courts have had cause to resort to the Golden rule to cushion any defect in a statute.

THE MISCHIEF RULE

This rule enunciated in the HEYDON’S¹¹ case aims at achieving the general policy of the statute by suppressing the evil the statute intended to avoid. The rule is also a guide to the courts when confronted with some difficulty in the literal interpretation. This rule enjoins that to gather the intention of the statute and give effect to it the court should pause and reflect on the following issues.

Firstly, what was the common law before the passing of the Act being interpreted;

Secondly, what was he mischief and defect for which the common Law did not provide;

Thirdly, what remedy the parliament sought and appointed to cure the disease of the

Common Law; and

Fourthly, the true reason of the remedy;

According to the Mischief rule the role of the judges is always to apply such construction that shall suppress the mischief and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief.

In Nigeria no one particular canon or principle of interpretation has been accepted to the exclusion of any other (s).¹² One can safely say that the courts have primarily accepted the literal rule of interpretation as normal while incase of difficulties such as ambiguity, inconsistency and, or unreasonableness, the Golden and Mischief rules of construction have been resorted to.¹³

GRAPPLING WITH THE TASK OF CONSTITUTIONAL

INTERPRETATION: THE FIRST REPUBLICAN ERA

It is significant to note that in its constitutional development the provisions for interpreting the various Nigerian constitutions have always been accorded to the courts in their order of hierarchical importance.¹⁴ No sooner after the Independence constitution was promulgated than the courts were being called upon to pronounce on the constitutional validity of certain acts or measures. Initially the attitude of the courts were that of caution as the courts preferred to dispose of such matters on other grounds. For instance in the case of GAMBIA vs. ESEZI,¹⁵certain trust Instrument was in impugned on the ground that it was invalid for being improperly constituted or void for uncertainty. The Supreme Court declining to consider the constitutional aspect since it could dispose off the matter on other grounds stated that: “The court will not pass on the constitutionality of a statute unless it is necessary to preserve the rights of the parties”.¹⁶

One other significant approach of the courts at this take off stage in their constitutional interpretation is the liberal reliance on foreign authorities and constitution to guide then. As Adenola, C.J.F. declared: It is undoubtedly wise to look at provisions of other constitutions”.¹⁷

Interestingly the then supreme court did not see cause to rigidly adhere to the literal rule of statutory construction in interpreting section 33(10) of the constitution of the western Region. This section provides that the governor shall remove the premier “if it appears to him” that the later no longer commands the support of a majority of the members of the House of Assembly.

The issue arose in Akintola vs. Adegbenro,¹⁸ as to whether in pursuance to this provision the Governor could remove a premier on the basis of factors outside the activities on the floor of the House or whether he could do so only as a result of events in the House. Relying on the convention in English constitutional practice where the Queen could not remove a prime minister except as a result of an adverse vote in the floor of the house, the supreme court held that the governor could not remove a primer unless in pursuance of an adverse vote in the floor of the western House of Assembly because in the opinion of the court the constitution of the Region was framed in the light of the normal English constitutional practice.¹⁹

As observed by a commentator, this approach of the court is interesting because there was no ambiguity and yet the court was prepared to take this step.²⁰

This liberal construction of the section was not approved by the privy council when in Adegbenro vs. Akintola,²¹ the court declared that the constitution of western Nigera is now contained in a written instrument in which it has been sought to formulate with precision the powers and duties of the various agencies that it holds in balance. Before assuming jurisdiction exercise its powers of judicial review especially it function of construing the constitution, the then Supreme Court first grappled with the determination of what amounts to a dispute. The reason being that to justifiably assume jurisdiction the matter must have come to the Supreme Court by way of reference²², or by virtue of appeals from the High Courts²³ or as a result of dispute between the Federal Government and a region or between Regions interse.²⁴

Occasions may arise when the Supreme Court could exercise original jurisdiction by virtue of the application of other specified statute to that effect.²⁵

It is worthwhile nothing that in all these instance the Supreme Court to the exclusion of every other court exercise original jurisdiction.

The lower courts by this statement are not denuded of the power of constitutional interpretation. It would appear that the constitution intended to rather confer a prominent position and vantage to the Supreme Court in the matter of constitutional interpretation than the lower courts. And for a matter to be referred to the Supreme Court, there must be raised a question necessitating constitutional interpretation and the matter must involve a substantial question of law.²⁶

Earlier in the case of William vs. Majekodunmi,²⁷ when called upon to pronounce on the validity of the proclamation of a state of emergency, the court perhaps not wanting to be drawn into a political controversy held that the existence or otherwise of a state of emergency is “a matter within the bounds of parliament, and not for this court to decide”.²⁸

CONSTITUTIONAL INTERPRETATION UNDER THE SECOND REPUBLIC

A typical principle of constitutional interpretation relates to examining, analyzing and critically pronouncing on the validity of acts particular organs of Government. Often than not, perhaps out of sheer ignorance, wrong perception or apparent assertion of supremacy, a particular organ of government may assert an authority it does not posses. In such situation the courts in appropriate cases would after due consideration decide on the validity of the act of that act of that particular organ or agency of government concerned.

Under the 1979 constitution on which the second Republic operated upon, the courts had occasions to perform this judicial duty of interpretation and in appropriate cases declared the impugned actions unconstitutional, illegal, ultra vires, null and void.

The necessity of constitutionalism and separation of powers as incorporations under the Nigerian Constitution to check-mate conflicts and abuse within inter Governmental Organs was well espoused by Karibi-Whyte, J.C.A (as he then was in Musa vs Hamza & Ors.²⁹ The Learned Jurist put the points succinctly when he observed that:

“The basis of our present constitution is the principle of separation of powers. It is only on very clear and unequivocal words of the constitutions is any of the departments of the constitutions assigned to the other”.³⁰

Reiterating the obligation of the various organs of government to refrain from arbitrary acts of self help contemptuous of the other organs, the Court of Appeal in Governor of Lagos State vs. Ojukwu³¹ declared that:

“In the course of the separation powers enshrined in the

1976 constitution, once a matter is submitted for adjudication

by a court in due exercise of the judicial powers vested in it

by section 6 (6) (b) of the constitution the executive should

not interfere until the judicial decision has been made,

particularly where the executive interference will have the

effect of pre-emptying or anticipating the decision.”³²

This fundamental principle of constitutional equality and independence of the organs of government was judicially endorsed by the Supreme Court Ojukwu vs. Governor of Lagos State³³when Eso, J.S.C. emphatically admonished the Military Regime to realize that:

“Under the constitution of the Federal Republic of Nigeria,

the Executive, the legislature had the judiciaty are equal

partners in the running of a successful Government”. And

the Court added a timely warming that: “None of the three

organs of Government must exist in sabotage of the other or

else there is chaos or these may be no General Government”.

And as if in a direct counter attack the Court emphasized the

Fact that:

“Executive Lawlessness tantamount to a deliberate violation of the constitution. And it is much more serious and profound if such lawlessness takes place in a military Administration”.³⁴

In the senate of National Assembly vs. Tony Momoh,³⁵ the construction of the Senate’s Power of investigation under section 82 of the 1979 now section 128 of the 1999 constitution was in issue. It was held that the power of the Senate to summon cannot be used to compel a journalist to reveal a source of his information as that will strike at the freedom of information and press.

In Judeonwo vs. the Governor, Bendel State & Ors³⁶ the court held that in the absence of any enabling law, the Governor has no inherent power to suspend and elected Local Government Council and remove its members.

FLASHLIGHTS IN THE EMERGING DEMOCRACY

Within the last six years of the 4^th Republic, decisions of monumemtal Importance have arisen that can be described as flashlights of an emerging democracy.

One of the early constitutional interpretations under the 1999 constitution was the case of People Democratic Party & Anor. Vs. Independent National Electoral Commission & Ors.³⁷ In this case the Supreme Court went for a too liberal interpretation when faced with apparent lacuna in section 37(1) of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1999 which prescribes death of a Governor as ground of succession by a Deputy to the Office of the Governor. The Supreme Court interpreted death widely to include any other circumstance where the Governor is unavailable. Referring to the Collins English Theasarus^37a in which the word ‘die’ was synonymous with… vanish, wilt, wither, fizzle out, the court ruled that:

“The meaning given by these words (as underlined) to the

word “die” is wide enough, in my opinion to embrace what

Alhaji Atiku Abubakar did in relinquishing his mandate to

Occupy the office of Governor of Adamawa State, I will

Therefore give the word “die” a wider meaning than had

Been given to it buy the court of Appeal. Consequently, I

Hold that by the provision of section 37 subsection (1)

Decree No. 3 of 1999, the 2^nd Respondent as Deputy

Governor elect is entitled to be sworn in as Governor of

Adamawa State. This accords with the justice of the case.”³⁸

This purported purposive approach of the Supreme Court in the above case in which a man who attained a higher office was referred to as dies’ had been described as an “abracadabra” and ‘an in appropriate metaphor and an unfortunate misuse of words”.³⁹

In Fawehinmi vs. I.G.P,⁴⁰ the issue was the proper construction of section 308 of 1999 constitution which confers immunity on the president, vice president, Governor and Deputy Governor and whether this immunity extends to police investigation in case allegation of crime or offence. The Supreme Court held that the immunity conferred by section 308 does not confer on any of them immunity from police investigation.

Relying on the American Supreme Court decision in Post vs. United State,⁴¹ wherein it was stated that: “Criminal Proceedings cannot be said to be brought or institute until formal charge is openly made against the accused”, the Nigerian Supreme Court held that the main purpose of section 308 of the 1999 constitution is to allow the incumbent officers free hand and mind in the performance of their duties.

Reiterating the purposive perspective of constitutional interpretation, the court declared that:

“The whole essence is to approach the interpretation of the

constitution in orde to uphold it to meet the purpose of the

framers and the aspirations held out by it for the larger

society, primarily by looking at the words used until there

is the need to take other factors into consideration. When the

terms are plain and involve no ambiguity they must be given

their meaning upon the ordinary and surrounding circumstances”.⁴²

Instances abound when the courts particularly the Supreme Court was called upon to pronounce on the constitutionality, legality or otherwise of a government agency or act of a particular organ of government. The judicial pronouncement in this respect often enhances the acceptability and legitimacy of such agency or its action as the cased may be. One instance of this added visibility is the controversy over the promulgation of a central criminal agency with an over sweeping intrusive impact on the entire citizens and states in a federal system of government. In Attorney General Ondo State vs. Attorney General of the federation.⁴³ the issue was as to the constitutionality other Related Offences commission. The controversy was that in a Federal constitutional system of governance such agency could only be established by the State as any such federal Agency would derogate from the autonomy of the states in a federation. By the Supreme Court upheld the constitutionality of the commission in this case.

But in Attorney General Lagos State vs. Attorney General Federation,⁴⁴ the Supreme Court up held the power of a state (Lagos State in this instance) to legislate on environmental, physical and urban planning matters within a particular state. In Attorney General of the Federation vs. All Nigeria people’s party and 2 Ors,⁴⁵ the Court of Appeal was engaged in constitutional interpretastion of a different dimension. The issue was as to the construction of the phrase “…he has been elected to such office at any two previous elections” which appears under section 182(1) (b) of the 1999 constitutions⁴⁶.

In upholding the prospective nature of the 1999 constitution the court of Appeal held that the phrase “any two previous elections” under section 182 (1) (b) of the 1999 constitution and not under any election prior to the 1999 constitution.

In INEC vs. Musa, ⁴⁷ the inherent power of the independent National Electoral Commission with respect to registration and supervision of political powers was interpreted. Reviewing the Constitutional rights to Assemble and Association the Supreme Court held that there is no inherent power to refuse registration to political entity that has otherwise fulfilled the conditionality for recognition and registration as a political party.

Perhaps, no case has been more controversial in recent years than the Supreme Court decision in Attorney General Lagos State vs. attorney General of the Federation⁴⁸ on the issue of withholding of statutory allocation of local Government Councils. The background to this case was that in 2002 the Lagos State through its legislative Assembly created 37 local councils to its original 20 council areas federal Government in 2004 withhold the local councils statutory allocations of Lagos State for failure to revert to the old structure of 20 local council areas. Aggrieved by this, the Lagos State Government approached the Supreme Court for necessary rulings and determination. The Supreme Court declared the seizure of the fund as illegal and unconstitutional. The Supreme Court in its constitutional interpretation of section 162 (5) of the 1999 constitution declared that nothing in this provision empowers the president to suspend or withhold statutory allocation payable to Lagos State.

And recently, the Supreme Court in A.G. Anambra State vs. A.G. Federation⁴⁹ in constructing section …… of the 1999 constitution upheld the constitutional power of a State Governor as chief security officer of the State to direct the commissioner of police in that State on matters bordering on public order and security.

CONCLUSION

In this study there is no claim here of any exhaustive review of all decisions impacting on constitutional interpretation by the Nigerian Judiciary. However, a random survey of the relevant decisions reviewed herein attests to how serious the Courts (particularly the supreme court) has undertaken the task of constitutional exposition. The approach of the Court appears to be guided by two basic assumptions which include:

That the ascertainment of the intent of the framers of the Constitution

is the underlying principle of Constitutional interpretation, and

That in order to ascertain this intent due weight and recognition be

accorded to the peculiar needs as may be evidenced by local and

Nigerian circumstances⁵⁰

In a long time of decisions, the Nigerian Judiciary has exhibited remarkable enthusiasm in an analytical approach to Constitution interpretation. A constitution of a people is an embodiment of all attributes of positive and dynamic indignations of such particular people.

What perhaps needs to be emphasized is that in the process of interpretation, the construction put into the provisions of the constitution should be such expositions that tend to enhance the positive inclinations of the founders of the constitution.

As Raja Azian Shah of the Malaysian federal Court had while approving Lord Wilberforce’s statement, declared that: “A Constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pendentic way⁵¹

In conclusion however, one cannot help theorizing that the challenge of the Judiciary by way of interpretation is enormous. And to realize the potentials of the elaborate liberal postulations of the constitution calls for a conscious ideological bent on the part of the Nigerian judiciary. As Kupolati has counseled:

“Our Judges must be relentless and persevering in mapping the way for lasting judicial revolution, which must radically develop into a foundation of economic, social, cultural and legal advantages for the present and future generations”⁵².

ENDNOTES

* B.A., LL.B., LL.M., BL., Principal Solicitor Nwanyanwu and Nwanyanwu

Associates, MACAN CHAMBERS, PH., Lecturer, Department of Public Law, Faculty of Law, Rivers State University of Science and Technology,

P.M.B 5080 Port Harcourt Nigeria. Email.macan182@yahoo.com.

See the Nigeria Independence Act 1960.
See generally Nwabueze B.O., Constitutional History of Nigeria (Longman Nig).)

1982 the challenge of the Nigerian Nation

For a general chronological Constitutional Development of Nigeria Nation see

Examination of its legal development 1960-1985 T. Akinola Aguda (Ed.)

N.I.A.L.S. (1985).

(1962) All N.L.R. 465
See the Constitution of Nigeria Act No. 20 of 1963.
See generally Mcwhinney, W. Judicial Review in the English speaking world,

University of Toronto press 1962.

Although there is a strong school thought to the idea that the Constitution is a

special kind of legislation embodying the hopes and aspirations of a people and as

such must be interpretation more liberally see for instance Naatiu Rabiu vs. Kano

State (1980) 8-11 s.c. 130.

(1944) 11 CI & FIN 85
Farer, J.H & Dugdale, A.M. Introduction to legal Methods, London, Sweet &

Maxwell, 1994 Page 134.

(1836)2 M & W 191 at Page 195.
(1854)3 Co.Rep. 7a
See Chief Obafemi Awolowo V. Alhji Shehu Shagari & Ors. (1976) 6-9sC51;

Obada V. Gov. Kwara State (1990)2 N.W.L.R. (pt. 130) 52 C.A.

For an overview of the Nigerian Judicial perception of these rules, see Karibe-

Whyte, A.G.; The Place of the Judiciary in the 1999 Constitution, All Nigeria

Judges’ Conference 1999 Chapter 5 at 101.

See generally 1954 Constitution as 144, 145, 147, 244 & 245; 1960 Constitution

ss 108 110; 1963 Constitution ss. 115 & 117 1979 Constitution ss.

(1961)1 A 11 N.L.R 584
Ibid, Page 588
DPP vs. Chikie Obi (1961)1 A 11 N.L.R. 186 at 191. Contrast with the case of

A.G. Bendal State vs. A.G. Federation & Ors (1982) 3 N.O.L.R.I. where their

Torasnms trowneo at reliance on foreign authorities and stated that such

Authorities were merely persuasive.

(1962) ! A 11 N.L.R. 442
Ibid, see particularly at page 452
Ezejiofor, G, A Judicial Interpretation of Constitution: The Nigeria Experience

During First Republic, in the Supreme Court of Nigeria A.B. Kasunmu. (Ed.)

(1962)1 ALL N.L.R. 465
S. 115
S. 117
S. 114 of the Federal Constitution see also A.G. Eastern Nigeria V.A.G.

Federation, NLQ, Vol.2 (1966) p. 55.

See Emergency Powers (Jurisdiction) Act 1962 (No.14 of 1962) s.i;
See the cases of Olawyin V. Police (No.2) 1961 1 All N.L.R. 622 and Olajire V.

Suptd of Local Govt. Police (1961)1 All N.L.R. 826 Constitutional Referendum. Act.

(1962)1 All N.L.R. 328
Ibid, at 336.
(1982)3 N.C.L.R. 229
Ibid
(1986) I.N.W.L.R. (pt.18)62
Ibid
(1985)2 N.W.L.R. (pt.10) 806
Ibid
(1983)4 N.C.L.R. 269
(1981)1 S.C.N.L.R. 4
1999 7 S.C.N.L.R 297

37a. See z Form 2^nd Colour Edition at page 32

Op. cit supra No. 37 at 327
Hon. Justice A.G. Karibe-Whyte: the place of the judiciary in the 1999

constitution; All Nigeria Judges Conferencr 1999, page 139.

(2002)7 N.W.L.R. (PT. 767) 606
161 US 583 (1896) 613

42.

(2002) F.W.L.R. (pt 111) 1972
(2003) F.W.L.R. (part 168) 1972
(2003 15 N.W.L.R. (part 844) 600
It may noted that S.34 (1) (1) of the State Government (Basic Constitutional and

Transitional Provisions) Decree No. 50 of 1991 and s. 166 (1) (b) of the Federal

Republic of Nigeria Constitution of 1979 have identical provisions.

(2003) F.W.L.R. (Pt. 145) 729
(2005) F.W.L.R. (Pt. 244) 805
Unreported suit No. S.C. 3/2004 delivered on 13/5/05)
See genially A.G. Bendel State vs. A.G. Federation (1981) 10 S.C. 1
Dato Mentevii Othman Bin Baginda vs. Dato. Ombi syed Alwibin syed Idrus

(1981) 1 M.L.J 29 AT 32^B.

Taiwo Kupolati’, The guardian, Tuesday June 21, 2005 page 78 and 80 practically

at 80

PROTECTING THE JUDICIARY – THE CONTEMPT POWER. ITS USE

AND LIMITATIONS: A HUMAN RIGHTS PERSPECTIVE

E.E AKHIGBE ESQ.*

In Nigeria today, the judiciary which is generally referred to as the last hope of the people is one of the main planks on which our democracy stands and has demonstrated its unflinching commitment to the rule of law and upholding the constitution of the Federal Republic of Nigeria.

Although, when compared to the other organs of government. i.e. the executive and the legislature, the judiciary is the least protected in the sense that while the other organs can run to it to seek protection especially as it relates to their acts or omissions, the judiciary has no where to run to, and this has given rise to what one might refer to as judiciary bashing by both the ignorant and the enlightened member of the society ranging from their disobedience of court orders to casting aspersions on the integrity of judicial officers.

However, this is not to say that the judiciary is absolutely powerless as it has at its disposition the Contempt power¹.

* Lecturer, Department of Jurisprudence and International Law, Faculty of Law, Ambrose Alli University, Ekpoma, Edo State.

See section 6 Criminal Code Act, cap. 77 Laws of the Federation of Nigeria 1990.

This paper therefore seeks to examine this power with a view to understanding the basis for its use and the limitations of its use taking into consideration the human rights implications.

Historically, this power to punish for contempt originated in England and the fact that Nigeria was once its colony who had received majority of its laws (the law relating to contempt inclusive) from this erstwhile colonial lord reduces our search for its origin in Nigeria. This reliance on the English common law is even more evident in the early cases on contempt of court in Nigeria as decisions of the English courts were cited ^{2 .}

In addition to English law, the criminal and penal codes, the several constitutions of the Federal Republic of Nigeria also impacted on the evolution of the law of contempt³.

What then is this power to punish for contempt? Before we delve into this it will serve us in good stead to understand the offence, generally referred to as contempt of court as it is this offence that the court seeks to punish.

Generally, contempt is viewed as an action or inaction amounting to an interference with or obstruction to or having a tendency to interfere with or obstruct due administration of justice ⁴, and it is usually divided into civil and criminal contempt.

Civil contempt, which is in fact contempt in procedure, consists of disobedience to the judgments, orders or other processes of court and involves private injury ⁵. But the court

The earliest cases of contempt. In Nigeria – R V. Thomas Horatius Jackson (1925) 6 NLR 49.

3 . See section 133 of the Criminal Code, Section 155 of the Penal Code.

Awobokun V. Adeyemi 1968 NMLR 289 at 294
Obiekwe Aniweta V. The State FCA/E/47/78 reported in “The Law of Contempt in Nigeria (case book)” by Chief Gani Fawehinmi at page 98.

has found that “willful breach of an order of injunction amounts to criminal contempt”⁶ as this is a very serious issue and in the words of M.B Belgore J. “disobedience of a court’s order of injunction amounts to civil contempt but it is no less serious than a criminal one for unless the court’s orders are obeyed the administration of justice is in great jeopardy. The administration can only be effective if it has a means of enforcement or a means of punishment for those who disobeyed it” ⁷.

This was also the position of O’ Leary J. who opined as follows:

“To allow court orders to be disobeyed would be to tread the road towards anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought to scorn… if remedies that the courts grant to correct… wrongs are ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the court will quickly result in the destruction of our society”⁸.

Also, aiding and abetting a breach of injunction or obstruction of a court order is also civil contempt, because when a court require a party to do a particular act or to refrain from doing a particular act, it should be implicitly observed and every diligence exercised to observe it ⁹. This is important as “orders of any court must be complied with strictly in accordance with their terms. It not sufficient by way of answer to an allegation that a court order has not been complied with for the concerned to say that he ‘did his best’. But if a court order requires a certain state of affairs to be achieved the only way in which the order can be complied with is by achieving that state of affairs” ¹⁰.

Per T.A. Oyeyipo J, in The State V. Hon. Justice A.A.M. Ekundayo & Anor KWS/56/1978, reported in “The Law of Contempt in Nigeria (cases book)” by Chief Gani Fawehinmi at page 262.
In American International Security and Telecommunication System Nigeria Ltd V. Eugene Peterson and anor reported in “The Law of Contempt in Nigeria (cases)” by Chief Gani Fawehinmi at page 79

8 Canadian metal Co. Ltd V. Canadian Broadcasting Corp. (No. 2) (1975) 48 DRL (3^rd ) 641 at 669

Harding V. Tingey (1864) 2 WR 684
Per Sir John Donaldson in Howitt Transport V. Transport and General Workers Union (1973) 1 CR 1 at 10

In the same vein, an undertaking given to the court by a party on the basis of which the court sanctions a particular course of action or inaction has the same force as an injunction and a breach of the undertaking is a misconduct amounting to contempt.

Further more, it must be noted that while it is contempt to disobey an order to pay money into court or to a particular person within a certain time, it is not contempt of court to fail to satisfy a judgment for the payment of money simpliciter¹¹.

Also a person should not however be found guilty of contempt for failing to produce documents pursuant to a court order, unless it is clear beyond reasonable doubt that at the time of the order, the defendant has possession of the documents and was in a position to produce them. This clearly indicates that failure to produce documents pursuant to a court order is contempt.

It is imperative to note that from the foregoing it is clear that there is no room for excuses, reasons or rationalization as to why the orders of the court are disobeyed that is to say the motives as to why orders may have been disobeyed are irrelevant.

This position is brilliantly encapsulated in the dictum of Lord Sterndale MR as follows “unless and until the time comes when the law of this country is that a person may disobey an order of the court or the laws as much as he likes if he does it conscientiously the question of motive is immaterial” ¹².

Criminal contempt on the other hand consists of words or acts obstructing or tending to obstruct or interfere with the administration of justice and could either be in the face of the court (in facie curiae) or outside the court (ex facie curiae) ¹³.

Police V. Salami Apampa M/42/68 reported in “The Law of Contempt in Nigeria (case book)” by Chief Gani Fawehinmi at page 226
R.V. Poplar Borough Council (No. 2) (1922) kb 95 at 103
Halsbury’s Laws of England 1974^thed. Vol. 9

Generally, contempt in the face of court are words spoken acts done within the precincts of the court which obstructs or interfers with due administration of justice or is calculated to do so. In this instance, the judge usually has personal knowledge of the events leading to the contempt and does not require the testimony of witnesses as it invariably occurs in his presence.

However, it is not always necessary that all the circumstances of the contempt should be within the personal knowledge of the judge. Examples abound of contempt in the face of the courts and they include assault on a judge while he is carrying out his official functions in court for example slapping a judge ¹⁴, throwing objects at a judge ¹⁵, taking photographs or use of recorders in court, willful interruption or disturbance of court proceedings by words or conduct ¹⁶, refusal to disclose sources of information, allegations of bias made against the judge however, there is no doubt that it is quite proper for counsel to raise the issue of bias where there are reasonable grounds for doing so, and Lord Denning opined that the test to be applied is whether “right minded persons would that in the circumstances there was a real likelihood of bias” ¹⁸, though there is a another test of a “reasonable suspicion of bias” propounded by Lord Hewart ¹⁹.

It must noted that though counsel are allowed some latitude while conducting his case, it is not a license for counsel to use outrageous or insulting language and should be careful not to scandalized the court by his action or words and it is here that danger lurks because

See Adegoke Adelabu and L. Bello v IGP (1955 – 56) WRNLR 6.
See R.K Garg, Advocate v State of Himachal Pradesh (1981) 3 SCC 16
Mu’azu v IGP (1955) 15 WACA, 23; Morris v Crown Office (1970) 1 ALL ER 1079
See Boyo V A G Mid–West (1971) ALL NLR 342, Atake V A G. Federation (1982) NSCC 444
Metropolitan Properties Co. (FGC) Ltd v Lannon (1969) 1 QG 577
RV Sussex Justice, Ex parte McCarthy (1924) 1 K B 255

there is only but a thin line between a mere discourtesy to the court by counsel which does not amount to contempt and a contemptuous conduct by counsel. This position was succinctly put in lzuora V. R, where counsel for personal reasons absented himself from court and Lord Tucker stated, “it is not every discourtesy to the court by counsel which amounts to contempt, nor is conduct which involves a breach by counsel of his duty to his client necessarily that category and in the present case the appellant’s conduct was clearly discourteous and might perhaps have been in dereliction of his duty to his client but in their Lordship’s opinion, it could not properly be placed over the line that divides mere discourtesy from contempt”²⁰.

Furthermore, the fear of being in contempt should not deter counsel from representing his client’s interest with fearless determination and this may more often then not bring him into conflict with the Bench, but counsel must know when to draw the line and should not dispute ruling or decisions but should exercise his right of appeal, this position is given legal backing by the Court of Appeal when it states that: “ Counsel must guard their tongues and pens in and out of court in their references to judgment of court as derogatory remarks of judgment of courts serve no useful purpose but merely reduce the integrity of the courts before litigants. Although counsel have a right to criticise judgment of courts in an appellate court or in a legal journal but such or any other criticism of a judgment must be devoid of the use of crude language”²¹.

In the final analysis, it is not possible to particularize the acts which can or cannot constitute contempt in the face of the court ²².

(1953) A C 327 at 328, 13 WACA 313
Akinduro v Iwakun (1994) 3 NWLR part 330 page 106 at 116 –117
Agbachom v The State (1970), ALL NLR 69

On the other hand, contempt outside the court may be described as words spoken or otherwise published or acts done outside court which are intended or likely to interfere with or obstruct the fair administration of justice.

Examples include any publication in any newspaper which is likely do prejudice the fair trial of any person, an article or publication in a newspaper that scandalizes or is calculated to bring the court into disrepute, publication in a newspaper calculated to obstruct the course of justice.

The case of R. V. Thomas Horatus Jackson ²³, where the editor of the Lagos Weekly Record appeared before the supreme court on an order requiring him to show cause why he should not be committed for contempt of court in respect of articles published in his newspaper which cast aspersions against the integrity and impartiality of judges of the court. The editor filed an affidavit in which he threw himself at the mercy of the court. The court committed the editor to prison for two months and ordered him to pay the costs of the proceedings.

Having attempted an examination of civil and criminal contempt, it is imperative to state that apart from the distinction indicated above, a major point of divergence is the procedure. While a court can deal summarily with cases of contempt in the face of the court and by the very judicial officer in who presence the offence was committed, but in cases of contempt outside the court, the court is presented with two options: firstly, there may be cases where the offence should be dealt with summarily but such hearing must be

(1925) 6 NLR 49

conducted in accordance with cardinal principles of fair process; and the case be one in which the facts surrounding the alleged contempt are so notorious as to virtually incontestable, secondly, in most cases, the proper procedure of apprehension or arrest, charge, prosecution or trial must be followed ²⁴.

This power to punish for contempt is inherent in all superior courts of record, but for the purpose of punishing for contempt, the magistrate court has been held to be a court of record and as such has the power to punish summarily for contempt committed in the face of the court ²⁵.

This inherent power to punish for contempt for contempt however is quite independent of enactments in codes and statutes, and brings to the fore certain issues. First, section 36(12) of the 1999 constitution of the Federal Republic of Nigeria provides that a person shall not convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law and what amounts to “a written law” was also indicated in the aforesaid section as an Act of the National Assembly or a Law of State, any subsidiary legislation or instrument under the provision of a law.

Clearly, the law of contempt as discussed above does not have such backing or legal force. However, and very importantly too, this aforestated apparent defect is cured by section 6(6)(a) of the 1999 constitution of the Federal Republic of Nigeria which provides that the judicial powers vested in the courts shall extend notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law.

Oku v The Sate (19970), ALL NLR 60, Boyo v A.G mid- west (supra)
Nunku v I G P 15 WACA 23, Onitiri v Ogomo 21 NLR 19

This laid to rest the issue of contempt as an offence being undefined. Secondly, there are enactments providing for the offence of contempt and its punishment. The major enactment in this regard is the Criminal Code Act which provides in section 133 as follows:

“Any person who:

(1). Within the premises in which judicial proceeding is being heard or taken, or within the precincts of the same, shows disrespect, in speech or manner to or with reference to such proceeding, or any person before whom such proceeding is being heard or taken; or

(2). Having been called upon to give evidence in a judicial proceeding, fails to attend, refuses to be sworn or affirmed, refuses without lawful excuse to answer a question, or to produce a document or prevaricates, or remains in the room in which such proceeding is being heard or taken, after the witnesses have ordered to leave such room; or

(3). Causes an obstruction or disturbance in the course of judicial proceeding; or

(4). While a judicial proceeding is pending, makes use of any speech or writing, misrepresenting such proceeding, or capable of prejudicing any person in favour of or against any part to such a proceeding, or calculated to lower the authority of any person before whom such proceeding is being heard or taken; or

(5). Publishes a report of evidence to be held in private; or

(6). Attempts wrongfully to interfere with or influence a witness in a judicial proceeding, either before or after he has given evidence, in connection with such evidence; or

(7). Dismisses a servant because he has given evidence on behalf of a certain party to a judicial proceeding; or

(8). Retakes possession by writ of court; or

(9). Commits any other act of intentional disrespect in any judicial proceeding, or to any person before whom such proceeding is being had or taken, is guilty of a simple offence, and liable to imprisonment for three months”.

Similarly, section 155 of the penal code states as follows:

“Whoever intentionally offers any insult or cause any interruption to any public servant while such public servants is sitting in any stage of a judicial proceedings shall be punished with imprisonment for a term which may extend to six months or with a fine which may extend to N20 or with both”.

Furthermore. Section 21 of the Native Courts ordinance state:

“Any person subject to the jurisdiction of a native court who shall omit to produce or deliver up a document on lawful order of such court or who shall refuse to answer any question lawfully asked by the court or to sign any statement lawfully required by the court, or who intentionally insults the court or any member therefore or who intentionally interrupts the proceedings at any stage, shall be guilty of contempt of court and shall be liable to a fine not exceeding ten pounds, and in default of payment, to imprisonment for a period not exceeding one month”.

Also, several sections in the Criminal Procedure Act also provide for the offence and its punishment. For example,

SECTION 191 STATES: ANY WITNESS WHO

(a). Refuses or neglects, without reasonable cause, to attend at a court in compliance with the requirements of a summons duly served in the manner prescribed by law; or

(b). Departs from the precincts of the court without the shall be liable, on summary conviction, to a penalty not exceeding forty naira, or to imprisonment for any term not exceeding two months:

Provided that no complaint shall be made for any offence under this section except by the order of the court made during the hearing of the case for which the evidence of the witness is required”.

Section 194 states:

“(1) When any person attending either in obedience to a summons or after notification as in section 193 of this Act or by virtue of warrant or being present in court and being verbally required by the court to give evidence in any case-

(a). Refuses to be sworn as a witness; or

(b). Having been so sworn, refuses to answer any question put to him by the sanction of the court; or

(c). refuses or neglects to produce any documents which he is required by the court to produce,

Without in any such case offering any sufficient excuse for such refusal or neglect, the court may, if it thinks fit, adjourn the hearing of the case for any period not exceeding eight days where practicable, and may in the n/meantime, by warrant, commit such person to prison or other place of safe custody, unless he sooner consent to do what is so required of him.

(2). If such person, upon being brought before the court at or before such adjourned hearing again refuses to do what is so required of him, the court may, if it thinks fit, again adjourn the hearing of the case, and commit him for the like period, and so again from time to time until such person consents to do what is so required of him.

(3). Nothing herein contained shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken by it”.

Section 274 states:

“(1). If it appears to a court that a person has been guilty of perjury in any proceeding before it, the court subject to the provisions of subsection (2) of this section and in addition in the case of magistrate to subsection (3) of this section, may –

(a). Commit him for trial upon information of perjury and bind any person by recognizance to give evidence at his trial; or.

(b). Try him summarily as for a contempt of court and if he is found guilty commit him to prison for six months or fine him-

(i). If in the High Court, a sum of one hundred Naira, and

(ii). If in the magistrate’s court, a sum of fifty Naira.

(2). Where a judge or magistrate decides to try a person summarily under subsection (1) of this section, as for a contempt of court, such judge or magistrate shall record in the evidence book the fact of such decision, shall specify the perjury alleged and shall direct the attention of the person to be charged to the inconsistencies upon which such charge is based and shall require him to give his explanation thereof and shall record such explanation in the book aforesaid.

(3).(a) if a Magistrate orders a person to be imprisoned or to pay a fine under subsection (1) of this section, he shall neither issue his warrant of commitment nor make an order for imprisonment for non- payment of the fine but shall either remand such person or release him on a recognizance with or without sureties to come up before the court when called upon and shall forthwith forward to the Chief judge or such judge as the Chief judge may direct a certified copy of the proceedings and the Chief judge as aforesaid may without hearing argument and in the absence of the person concerned set aside or confirm such order or reduce the sentence of imprisonment or the amount of the fine and shall inform the magistrate as soon as practicable thereafter of his decision.

(b). If the Chief judge does not wholly set aside the magistrate’s order the magistrate shall forthwith issue his payment of the fine in accordance with the terms of the Chief judge or judge’s order.

(c). Any imprisonment or fine ordered or imposed under this section shall be a bar to any other proceeding for the same offence except where the order of a magistrate has been wholly set aside”.

Section 357 states:

‘Every person who makes default in attending as a witness in either of the case mentioned in the two last preceding sections shall be liable, on the summary order of the court, to a fine of forty naira, and in default of payment, to imprisonment for a term of two months’.

A final issue raised is whether the fact that contempt of court is provided for statutorily as seen above does away with the inherent powers possessed by all courts of record to punish for contempt.

Section 6 of the Criminal Code Act which states as follows:

“Nothing in this Act or in the code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as contempt of court; but so that a person cannot be so punished under the provisions of the code for the same act or omission”.

Provides a succinct answer to this query. This section also established that a judge in a contempt case cannot exercise his power both under the section and also under section 133 of the criminal code or any other statutory provision ²⁶.

Having stated albeit broadly the concept of contempt, it is pertinent to look at the procedure and an examination of the cases indicate that majority of the contempt cases that have had their decision quashed on appeal was on the issue of procedure. The Supreme Court has this to say with regards to procedure, “in initiating proceedings of this nature, it has been the guided principle as set out in ODWALD on Contempt

Agbachom v The State (supra)

Committal and Attachment at page 17 that “it should always be borne in mind in considering and dealing with contempt of court that it is an offence purely sui generic, and that its punishment involves, in most cases, an exceptional interference with the liberty of the subject, and that by a method or process which would in on other case be permissible or even tolerated. It is highly necessary, therefore, where the functions of the Court have to be exercised in a summary manner that the judge in dealing with the alleged offence should not proceed otherwise than with great caution and only in cases where the administration of justice would be hampered by ordinary courts of law; and that when any antecedent process has to be put in motion, every prescribed step and rule, however technical, should be carefully taken, observed, and insisted upon. The jurisdiction should be exercised the more carefully in view of the fact that the defendant is usually reduced, to such a state of humility, in fear of more stern consequences if he is either unable or unwilling to defend himself as he might otherwise have done” ²⁷

Further, the cases reveal the procedure as relates to contempt be as follows:

Civil contempt, it is clear that all applications to commit for contempt for breach of court’s order must strictly comply with all the requirements prescribed by the applicable law ²⁸.

Criminal contempt; (a) Contempt in the face of the court; the summary procedure as provide for under section 6 of the Criminal Code Act is used, this means that the ordinary procedures of conventional criminal trial are done away with, that is the offender may be committed instanter and no notice or formal institution of proceedings

Boyo v The State 1970, ALL NLR 318 at 319 – 320, Okwuosa V Okwuosa 1973 Law Report of ECS of Nigeria Vol. 3 part 1 page 57
Omopena v Adelaja 19 NLR 71, Phillips v Osho 1970 2 ALL NLR 244

are necessary. It is the judge that initiates the proceedings himself and hears the case himself but the specific offence charged must be distinctly stated and an opportunity of answering it given to accused ²⁹, though the Supreme Court despite acknowledging this principle which it had stated and restated in previous cases deviated, contending that they could punish for contempt instanter without following the procedure. One is at a loss as to why Supreme Court took this position for there is a need irrespective of the nature of the contempt for the court to mention, specifically and distinctly, the nature of the offence, giving the appellant an opportunity for explanation. Also, the accused should be put in the dock and asked to show cause why he should not be convicted. He should not be compulsorily put in the witness box as it negates the principle enshrined in the Constitution that no one who is tried for a criminal offence shall be compelled to give evidence at the trial ³⁰.

But if a contemnor is being tried under section 133 of the criminal code or any other statutory provision, he should be tried before a different court or judge and the normal procedure of a charge, plea, trial and verdict must be followed strictly ³¹.

Here the advise of Lord Denning MR is instructive:

“a judge should act on his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it upon himself to move. He should leave it to the Attorney general or the party aggrieved to make a motion… The reason is so that he should not appear to be both prosecutor and judge: for that is a role which does not become him well” ³²

Awosanya v Board of Customs 1975 1 ALL NLR page 106
Deduwa v The State 19751 1 ALL NLR page 1
Agbachom v The State (supra)
Balogy v Crown Court at St. Albans (1975) QB 73 at 85

(b) Contempt outside the court; here the court could avail itself of any of the two options depending on the circumstances of the case. Firstly, there may be cases where the offence should be dealt with summarily but such hearing must be conducted in accordance with cardinal principles of fair process; and the case must be one in which the facts surrounding the alleged contempt are so notorious as to be virtually incontestable, secondly, in most cases, the proper procedure of apprehension or arrest, charge prosecution etc. must be followed.

Also, a judge who has been personally attacked should as far as possible not hear the case ³³.

In the final analysis, one point becomes evident that before anyone is committed for contempt, he must be informed of the details of the contempt and must be given an opportunity to make an answer and defence.

This point brings us to the human rights implications of the power to punish for contempt of court, and the major fear or criticism is that it could result in infringements or violations of right of the accused to fair hearing, a right provided for in the Constitution ³⁴amongst other rights.

The Supreme Court aware of this observed as follows:

“A charge of contempt is a serious one, and it is necessary not only for the protection of the court of justice, but also for the preservation of justice and the administration of it in this country, that acts or conduct which tend to invade these concepts should be very

Awobokun v Adeyemi (1968) NMLR 289
Section 36 of the 1999 Constitution

sternly dealt with and in good time as well. But it is implicit in the protection of justice that the means by which it is protected should be fairly administered” ³⁵

Section 36 of the Constitution, which is on all fours with Article 14 of the International Covenant on Civil and Political Rights of 1966, provides the following minimum guarantees:

First, the presumption of innocence, but in a contempt case, the accused is expected to “show cause” that is to prove his innocence of the charge against him.

Secondly, the requirement of defence by legal representatives of his own choice is not available to the accused in a contempt case as he is committed immediately depending on the nature of the contempt and practically has no time to engage the services of a legal practitioner to represent him on the charge against him.

Thirdly, the right to examine or have examined, the witness against him (which invariable in most contempt cases is the judge) is not practicable.

Finally, the very nature of the contempt procedure makes it impossible for the accused’s right to be given adequate time and facilities for the preparation of his defence to be respected.

Over and above all this is the breach of the doctrine of natural justice which twin pillars are the principle of audi alteram partem or fair hearing which has already being discussed above and the principle of nemo judex in causa sua to which the contempt procedure is directly in conflict with.

This is maybe why the judiciary sparingly exercises this its power to punish for contempt and the following comment by the Supreme Court is instructive:

Boyo v A G Mid – west (supra)

“Whether the contempt is in the face of the court or not in the face of the court, it is important that it should be borne in mind by judges that the court should use its summary powers to punish for contempt sparingly. It is important to emphasize the fact that the judges should not display undue degree of sensitiveness about this matter of contempt and that they must act with restraint on these occasions” ₃₆.

Also, the inherent power to fine and imprison for contempt is not retained for the personal aggrandizement of a judge or whoever mans the court. The power is created and maintained and retained for the purpose of preserving the honour of the court ³⁷.

Furthermore, the Court of Appeal observed as follows:

“The purpose of punishment for contempt is to preserve the dignity of the court and the right of the court as the arbiter to try all cases but the court must be cautious and avoid overreaction otherwise administration of justice itself would be on trial”³⁸.

From the totality of the above, it is clear that the judiciary realizes the shortcomings associated with the exercise of its inherent power to punish for contempt and therefore seeks to mitigate it by exercising this power sparingly.

This however, in my opinion is not the way out, rather while one will not argue for the outright abolition of this inherent power to punish for contempt, it is suggested that the court should rely more on section 133 of the criminal code or other statutory provisions in order for it to punish for contempt.

Boyo v A G Mid- west (supra)
Deduwa v The State (supra)
In Re: Dr. Olu Onagoruwa (supra)

In conclusion, therefore, it is expected that this paper having highlighted the shortcomings associated with the inherent power to punish for contempt especially its

conflict with international ³⁹, and National ⁴⁰, legislation has also proffered a way out that is in consonance with the principles of justice, fair play and equity, which I think is what we are all striving to achieve.

International Covenant on Civil and Political Rights 1966
1999 Constitution of the Federal Republic of Nigeria.

CHANGE IN CONSTITUTION OF A COURT AND ITS EFFECTS ON LITIGATION.

Preowei Subai

Lecturer, Department of Public Law,

Faculty of Law, Niger Delta University,

Wilberforce Island, Bayelsa State

INTRODUCTION: After a long standing battle with a commercial bank in Port Harcourt which lasted for three years. Counsel took a date for address. Alas this was not be! The learned trial judge retired before the adjourned date. Presently the parties await the Chief Judge’s transference of the case to another judge to hear the case denovo.¹ My reflections on the unpleasant consequences of a trial do novo led to this paper.

TRIAL DENOVO: It has somewhere been defined as … “A new trial on the entire case that is on both questions of fact and issues of law – conducted as if there had been no trial in the first instance”² and a trial has been explained to mean …’the examination of and decision on a matter of fact by a court of law³. A trial de novo includes a retrial of the issues of facts and law by a court of first instance. However it would Seem that a trial de novo is wider than a re trial. This is because a retrial presupposes that there was a complete trial, judgment was given, but due to some perversion in the judgment or a wrongful admission or rejection of evidence, which resulted in injustice to either partly, the Appellate Court orders that the matter be tried de novo.

A trial de novo is wider than a retrial because it includes instances when the Chief Judge of a State orders that a case be heard a new or de novo not because of a wrongful admission of evidence, but because there is a change in the constitution of a court.

The case referred to above concerns a cousin of the Author.
Blacks Law Dictionary Ed Bryan .A. Gamer at 1512
Osborne’s Concise Law Dict, 8^thEd, at 331.

A trial de novo is also not an appeal. A appeal is…’a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority’⁴ and speaking about civil appeals, Nwadialo said that a …’ civil appeal is by way of rehearing.’ This does not mean that there is a retrial of the case but that the Court of Appeal may make its own of Appeal may make its own evaluation of the evidence as contained in the record of proceedings at the trial.

In a trial de novo, witnesses are called afresh and evidence is given. It is submitted that in a trial de novo, parties would be allowed to correct earlier mistakes. However, it is my opinion that in a trial de novo, issues resolved against any of the parties would not estopp parties from raising those issues afresh.⁶ This is because in my opinion, one of the cardinal conditions of estoppel is that there must be a final judgment delivered by a competent court. Since the trial starts anew, the earlier judgment (if any was delivered) is not taken into cognizance in the new trial as a binding judgment.

However it is my submission that witnesses called anew would be estopped from giving evidence which conflicts with their previous testimonies in the earlier case.

It is also my submission that when a case is heard de novo, evidence given by a dead person in the earlier proceeding can be given in the subsequent proceedings, provided the adverse party

had an opportunity to cross examine under s.34 of the Evidence Act⁷

Blacks Law Dictionary O Cit at 94
Civil Procedure in Nigeria, 619
Sections 54 and 55 of the Evidence Act.
Evidence Act Cap E. 14 LFN 2004

Finally, when a judgment is declared a nullity by an appellate court, and the case is heard de novo, what is the effect of the earlier judgment or opinions expressed by the judge in the earlier court? It is the law that although the judgment in the earlier case was declared a nullity, opinions expressed by the court exists in fact although they have no legal consequences. They are parts of the court’s records, which must be judicially noticed pursuant to the Evidence Act⁸ However, the opinions expressed have the effect of textbook writers and not of judgments of courts of law or opinions expressed therein⁹The fulcrum of this work is to examine however the effects of a trial de novo when there is a change in the constitution of a court.

RATIONALE: In general the constitution of the Federal Republic

of Nigeria 1999 (The Constitution) creates courts of records. Some with special jurisdictions¹⁰ and some with general jurisdictions¹¹

These courts also have in some instances original, appellate and supervisory jurisdictions¹² and in some cases only original jurisdictions and nothing more^13.

In this work we want to focus on the original jurisdictions of the courts created by the constitutions. These courts are: The Supreme Court, the Court of Appeal, The Federal High Courts of the Federal Capital Territory, the Election tribunals all made under

Ibid, S73 and 74
OSAFILE v ODI (1990) I ANLR, 463
Customary and Sharia Courts of Appeal
E.g The High Courts of States and the Federal Capital Territory
E.g. The High Court, 5.272
The Federal High Court.

In this work, where a Court of trial is mentioned it includes an Area Court and a magistrate court and a trial judge includes a trial magistrate and an Area Court Judge.

It has been the practice¹⁴ from time immemorial that the constitution of a trial court must be maintained from the beginning to the end. If during the proceedings, there is a change in the court’s constitution, the case is to be transferred to a new judge of that court who is to hear the matter de novo. The rationale for this is that the first judge who heard the witnesses during direct and cross examination and has had the opportunity to observe their various demeanours. He has formed opinions about the truth or falsity of their testimonies and he cannot transfer such opinions to a new judge. Thus the opinions formed are not transferable.

CAUSES OF CHANGES IN COURT’S CONSTITUTION

Various factors cause changes in court’s constitution. Examples here include The following:

(1) Elevation to a Higher Court: Examples are many, the most recent which I can recollect was that of Oguntade JCA (as he then was) to the supreme court from the court of Appeal, while that court was sitting as a trial court in the case of Buhari v Obasanjo. Also that of Justice Nnaemeka Agu in 1977, from the Anambra High Court to the then Federal Court of Appeal while he tried the notorious case of Ogbunyinya v Okudo ¹⁵

(2) Retirement Under the Constitution¹⁶ or States Laws;

(3) Removal from Office Under .S.292

(4) Death

(5) Resignation

(6) Suspension

The author could not find any statutory provision on the issue.
(1979) N. S. C. C. 77
S. 291

(7) Transfer to another court out of that State or to a different jurisdiction ¹⁷

NEGATIVE EFFECTS OF A TRIAL DE NOVO.

Once a case is to be heard a new, the parties are relitigating witnesses are procured afresh. In some instances it is necessary

for a case to be heard de novo in the interest of justice, but in most instances, the negative consequences are onerous. They include:

(1) DELAY: Justice delayed is justice denied time spent can never be rebought. To try a case de novo takes a long time. In Bayelsa where I practice, an average criminal case in our High Courts take about two years and Civil cases take three to four years .In Port Harcourt or Lagos, where courts are more congested, this would take more time. The case of Ogbunyiya Yokudo supra as at the last time I heard of it was being heard the third time since 1958¹⁸

(2) FINANCIAL IMPLICATIONS: The procurement

of witnesses who could have been transferred out of court, the professional fees of counsel and other concomittant expenses are monumental. It is to my knowledge that some clients in Bayelsa sell lands just to faithfully prosecute cases. To try such a case de novo is like a death sentence on the litigants

18 that was in 1991, 33 years after!

PSYCHOLOGICAL TRAUMA: No litigant is happy to be in court. To my mind, the average person avoids the court, Police station and the Hospital more than any other place sitting in a court all day long, the cross examination of counsel, imputation (or attempted) imputation of characters to the non sitting judges and ill prepared counsel all cause litigants to have heightened anxieties.

E.g in Iyela v Cop there was a change in the court constitution when the trial magistrate was transferred out of the State or in sound cases a State High Court could move to the FCT or the Federal High Court; vice versa.

To relitigate on same issues after the first case is a heavy turmoil to the spirits of these litigants.

DISSIPATION OF THE RES: It is a fact that in most cases where the subject matter is money, interests are not stipulated. In awarding judgments, the courts hardly award interests and if they do, they are usually minimal. Inflation does not wait for litigants.

DEATH OF WITNESSES, LOSS OF DOCUMENTS ETC:

Witnesses die during trials, documents could be missing and there could be a loss of memory of witnesses etc over the years among others.

To start a case de novo makes a mess of the judicial system. It shows that in this jet age, we have allowed the conservative nature of our profession to enslave us.

It is a fact that in all areas of life, the presence of information technology has enhanced speed. People no longer use banks, which take time. Industries are increasing their modes of operation in other to ensure that better services are delivered to their clientele.

The judicial powers of the federation is vested in our courts ¹⁹, but today, because of the delays occasioned by the court proceedings, most aggrieved persons opt for ADR processes. They do this not because of their love for ADR or their hatred for litigation, rather they allow negotiators and mediators; mediate them out of their rightful entitlements. Thus by negotiating, they compromise and settle for less.

What can we do? It is appreciated that our courts have of recent resorted to doing substantial justice rather than allow technicalities frustrate the system. However, much more can

Still be done to ensure that only cases which should be heard de novo when there is a change in the composition of the court are so heard.

that was in 1991, 33 years after!
S.6 The constitution.

It is a known fact that Al Mustapha who is being tried by the Lagos State Government for the attempted murder of Alex Ibru has frustrated the proceedings by attacking the judges to the point of having the case transferred to be heard de novo.

Thus a case that started about six years ago has still not gone far because of the trial de novo.

WHAT CAN BE DONE ?

Firstly I want to suggest that in the appointment of judges pursuant to the constitution²⁰, the appointing authorities which are the President and the Governor, should appoint a judge as a judge-elect whose appointments should take effect at least six months later. This appointment would enable the judges to put their houses in order before assuming office in the higher court. In every sphere of life, nobody leaves his office without putting his house in order. Under the Labour Act,²¹ workers give notice to employers or landlords pay workers in lieu of a month’s work as the case maybe in order to enable them put their houses in order.

Landlords give their tenants notice to quit to enable them look for good houses before they before they leave. In the judical system, if judges are appointed as judges-elect, they would be given opportunity to give accelerated hearings to those cases which have gone very far or which are about to be determined. This would ensure that the unpleasantness that happened in the cases of Ogbuninya v Okudo ²² and Iyela v Cop²³ do not occur. In the former case, Nnaemeka Agu J. (as he then was), was appointed as a Court of Appeal judge and his appointment was backdated to take effect from June15 two days before he delivered judgment in the case. The Supreme Court, nullifying the judgment for having been delivered when the judge was functus officio ordered that the case should be heard de novo. In the latter case, a magistrate who had concluded hearing was transferred out of the State.

20 sections 231, 238, 250, 266, 271, 276, 286, of the constitution .

Labour Act

22 (1979) NSCC

23 (1969) NMLR, 180 Also see Mukoro v State . (1976) 6 UILR, 169

He came from that state to deliver judgment. It was held that he was funtus officio, thus his judgment was a nullity.

If judges were appointed for their appointments to be effective in the future, it would give room to avoid all these unpleasant circumstances.

WHERE FACTS ARE NOT IN ISSUE

One reason as stated earlier for ordering a case to be heard de novo is because when there is a change in the composition of the court, the new judge who did not watch the demeanours of the witnesses would not be able to adequately give judgment. However originating summons²⁴ are used when facts are not in dispute substantially or where the case turns on the construction of documents and wills, contracts and statutes I submit that in such cases, when there is a change in the court’s constitution, the new judge should not hear the matter de novo but should continue. The Appellate courts are able to adequately hear an appeal even without looking at witnesses because the record of proceedings suffices. Also in these instances, the issue of transference of opinions formed by observation of witnesses does not arise and a new judge would be able to adequately construe the documents tendered and come to the just determination of the case.

INTERLOCUTORY AND INTERIM MATTERS: Interim proceedings are supported by affidavits²⁵. And in most cases documents are tendered. Rarely are witnesses called except where there are conflicts in the affidavits and the documents before the court do not adequately help in the resolution of the conflicts. ²⁶

Order 1 Rule 2 (2) Uniform Civil procedure Rules

(1987) of the FCT.

Order 8
Nwosu v Imo State Environmental Sanitation Authority.

It is my submission that since in most cases lawyers fight over interlocutory and interim applications for as long as a year, sometimes two years before trial begins, if a new judge comes at this stage, he should start from where the earlier judge stopped.

DELIVERING A JUDGMENT FOR ANOTHER JUDGE: Although section 294(4) with cases before appellate courts, it is my considered opinion that trial judges should be allowed to deliver completed judgments for others who have become funtus officio, if the judgments are already written. If this had been the case, the Supreme Court in Ogbuninya Okudo supra would have ordered that the judgment of Nnaemeka Agu J (as he then was) have been deliverd by another judge of that court.

THE RULE IN KOJO v BONSIE

The rule states that in land matters, where parties claim title to land, the judges should not rely on the demeanour of witnesses, where their claim is founded on traditional history, but on recent

294 (3) of the constitution deals with cases acts of ownership. This is because at though a witness is speaking sincerely, what he is saying might have been a lie told to him by his ancestors. It is my suggestion that in these cases, since there is no reliance on the demeanour of witnesses, if there is a change in the composition of the court, the new judge should be allowed to continue from where the other judge stopped, look at the records, evidence tendered in proof of recent acts of ownership and come to a good judgment.

MULTI JUDGE TRIAL COURTS:

Finally it is intended in this work to briefly look at the practice when in a multi judge trial court ²⁷the tendency for there to be a

27 Sections 233,249 and 285 of the Constitution.

Change in the constitution of the court is strong. In the court of Appeal and Supreme Court, where the justices are older and more prone to retire earlier, this change might greatly disrupt the proceedings if the case is heard de novo. What would the court do? If we go by the rationale for a trial de novo – observation of the demeanour of witnesses, a trial de novo should necessarily follow: This is buttressed by the fact that the judgment of each judge counts in other to determine the majority. ²⁸

Thus a new judge would not usually replace the old judge whose seat is vacant. However, the recent case of Buhari v Obasanjo ³¹ created a novel practice to the author In a judgment delivered by Justice F. Tabai, with a 3 to I majority, Justice Oguntade(JCA) who was elevated to the Apex court earlier this year was a sitting judge in that case.. His elevation left his position vacant. Surprisingly the position was not filled up.

Thankfully there was a 3 to 1 majority. However if there had been a 2-2 tie, what would have been the result? The unpleasant circumstances cannot be imagined.

It is my submission that the only options open are either to fill that vacant seat and start de novo, or to appoint another justice and allow him to start from where the previous judge stopped. Anything else would lead to a dead look.

CONCLUSION: With lawyers groaning under the yoke of poverty because of a dearth of cases and litigants groaning under oppression caused by delays of trials it would greatly benefit all if these negative consequences of trying de novo because of changes in the courts composition, are addressed quickly.

SOCIOLOGICAL JURISPRUDENCE: A SINE-QUA-NON FOR NIGERIA’S QUEST FOR STABILITY

O. TELIA

BA (POL.SC, LLB, MA Ed & Nd, Ph.D.

INTRODUCTION

Sociological jurisprudence is a constitutionalism concept, emanating from A.V. Dicey (1931) then, a constitutional lawyer. Dicey’s contention is that the constitution of a society must be a reflection of their political, economic and social history. It is a concept so very seriously misconstrued and highly misunderstood to the extent that more recent scholars feel that even the proponent was relatively limited as to the explication of it because he hinged it essentially on democratic values. I am therefore compelled to start this lecture by explaining the concept (with a rather lengthy introduction), using the three oldest democratic examples of British parliamentary democracy, the United States’ presidential democracy and the defunct Soviet Union’s democratic centralism (one each of the oldest within each model) after which one can then come to the Nigerian basis of the fundamental Law (Constitution) and evaluate the extent to which it conforms with the idea, tenets and ideals of the concept. That is the objective and modus operandi of the lecture.

The three examples with which the lecture is introduced are also stratified samples, representing Western Europe, the Americas and the Eastern Europe, while the diagnosis will provide a refreshment of memory in the three countries’ political history and also the prudential basis of their constitutions.

I have left out France as example for two reasons:

(i) because I have picked Britain in Europe;

(ii) because it is less significant to Nigeria considering the

country’s political history, particularly the colonial era.

Let me start the diagnostic exercise with Britain.

1.1 SOCIOLOGICAL JURISPRUDENCE: BRITISH EXAMPLE

In the medieval period, the English government like other Europeans followed the medieval patern of governance (David, 1970). There were two realms, the spiritual and the temporal. The spiritual realm was under the Pope of the Holy Roman Catholic Church and the temporal realm was under the Emperor of the Holy Roman Empire and it is this that is relevant to our exercise today.

Next to the Emperor was the King of the respective country in Europe, and next in line were the Lords to whom the Serfs were next. God remained unassailed as the Omnipotent. The European structure of governance then could therefore be thus described:

Fig. I EUROPEAN MEDIEVAL POLITICAL STRUCTURE

God

Emperor

King

Lords

Serfs

In the medieval socio-economic and political arrangement, land was the determinant factor, and each King divided his domains among the Lords and the Lords divided their own among the serfs. From the bottom to the top, loyalty and faith were the first requirements. Added to that was payment of rent (on land) and military service when required (from the Emperor down), which formed the basis of alliances.

But Henry the VIII 1509-1547 broke away from the Roman Catholic Church for a temporal reason, having been refused a licence for his second divorce (to his displeasure) by the Pope (Smithgate, 1964). Since he was bent on the divorce, he had to break away from the Holy Roman Catholic Church, create the Church of England and appointed the first Archbishop of Canterbury, who in turn gave him his desired licence as required in Law. A new situation had thus been created i.e. that England had become free of Europe in religious matters.

In 1494, the Pope drew up a North-South imaginary line running 370 league (about 130 miles) west of Azores, (Stevrianous, 1968) to seal the Treaty of Tordesillas between Spain and Portugal. The Papal Bull that followed gave West of the line to Spain and East to Portugal. By 1588, however, Emperor Phillip who was at that time simultaneously King of Spain and Portugal and the Emperor of the Holy Roman Empire sent the Spanish Armada against England for violating the Papal Bull. But Lord Howard and Sir Francis Drake (officers of the Queen) who defeated the Emperor’s navy (Rogers, 1960) made the mission impossible and helped England to establish her sovereignty even in the temporal sphere. Elizabeth I therefore established the sovereignty of England over its own affairs and was no more subject to the Emperor. From then onwards, a new order was instituted where the English Kings established divine right over their people.

Fig. II STRUCTURE OF THE DIVINE RIGHT OF THE ENGLISH KINGS

God

The King

The Lords

Serfs (renamed commoners)

The next stage of the struggle was for the liberation of the Lords and that struggle in English history is referred to as the War of the Roses (Lipson, 1976). The civil war between the Lords and the King was fought for thirty years and it culminated in the acceptance of the Lords into “hectic politics”, with some political powers of their own. That was the beginning of the end of divine right of Kings and the emergence of the British House of Lords as a political force.

The struggle for the emancipation of the commoners was next and was championed by Oliver Cromwell who while declaring the objective of the “REVOLUTION” said, “The people are under God, the originator of all powers” Stevrianous, 1968).

On the Commons (of the parliament), he continued, “being chosen by and representing the people, they have the supreme power over the nation”. The civil disorder that followed witnessed the beheading of King Charles I in 1649, and one of the demand of a group of the revolters (puritans) was for religious tolerance (from the king) even within Christianity.

By the Reform Bills of 1832 and 1867 (Rogers, 1960), the electoral franchise to parliament hitherto limited to a few rich people was extended to a majority of English men. The Industrial Revolution also created a set of noveau riche (bourgeoisie) out of commoners, as well as produced rural-urban migration, which threw the feudal lords out of power because the serfs migrated to the industrial urban centres to work and some of them became owners of the emerging FACTORIES. Thus, a new order was created, which was a departure from the original one thus:

Fig. III ENGLANDS’S POST REVOLUTION POLITICAL STRUCTURE

OLD ORDER NEW ORDER

God God

| |

Emperor Commoners

| |

King Lords

| |

Lord King

Commoners

In the new dispensation, the position and office Emperor was no more relevant. It was a complete reversal of the old order but in an evolutionary rather than revolutionary way, which explains the sociological jurisprudential part of the resultant constitution though unwritten.

The British parliamentary system of government that emerged there from is therefore not from the blues, but a reflection of the political culture and traditional institutions of the British. It gives place to the King and Lords, which remain relevant but no more dominant. The serfs of old (now Commons of parliament) are in fact now the dominant, whereas in the past they used to be trampled upon.

1.2 SOCIOLOGICAL JURISPRUDENCE: AMERICAN EXAMPLE

The United States is just one of the American nations and the United States is composed of four groups of people (Tella, 1978):

> The offspring of the Indians who solely and originally inhabited the land

before the immigrants.

Offspring of the European migrants from England,

Holland, Spain, France, Portugal, Germany etc. in

The medieval period.

The offspring of slaves from Africa who were later

Endowed with citizenship rights.

Other immigrants from all over the world who came

At later dates for various reasons to the United

States. They include Jews, Africans, Europeans from

The defunct USSR. And its satellite, Asians, to

Mention a few.

Ironically, the Indians, who were the aborigines are little to talked about, the dominant Americans are the offspring of the migrants to the land in the age of European expansion, Euro- Americans, whose reasons for emigration varied from adventurism, commerce, religion to social. The greater percentage of the migrants however, were of English background (Allan, 1992), who left Britain either in search of fortune (like the early settlers in Virginia in search of gold and silver), or because of religious intolerance of the English Kings of the sixteenth and early seventeenth centuries (the new Englanders), or were ex-convicts or fugitives from justice or those looking for a place where they could start a new life. The immigrants massacred the Indians for land acquisition purposes, the worst year being 1622.

From around 1623, according to Allan (1992), Negroes (Africans) were taken captives to America, and lived among the immigrants as slaves. It took a ling time before these people got their freedom and since they could no longer trace their roots, they remained in America as freed men of colour. Later and after the War of Independence, immigrants from Sweden, Poland, Yugoslavia, Czechoslovakia, Grece, Holland, Spain, France, Japan and Israel, to mention a few, emigrated to the United States.

In all, the most dominant group were the British immigrants who eventually became the master of the land. After the War of Independence the settlements came together in Philadelphia at a meeting presided over by George Washington to form a nation. Nine of the states (as by requirement) effected their unity on the 4^th of March 1789, while others were later admitted to the fold. Alaska however was bought from the USSR much later.

They drafted and adopted a written, federal, democratic and republican constitution which some schalars of the natural rights schools of though regard as a masterpiece.

Ask me why they evolved that kind of constitution and governance and my answer will be that they took every thing in their past to cognizance i.e. their emigration and national history. They did not totally forget their British background hence they evolved a system out of it but, rather than copy lock, stock and barrel the British system they were sociologically prudent as they ensured that:

(i) No absolute monarchy or overbearing House of Lords or a Frankenstein

House of Commons rules their nation and take away from them their

God-given or natural endowment (civic and human rights).

(ii) Like their British progenitors, they evolved a two-chamber Congress

(Parliament) but this time one based on equality among the component

states (rather than nobility of blood) (Senate) and the other based on

proportional representation (House of Representatives) respectively.

(iii) On top of it all, they created the office of a President that is very powerful and

combines the absolute powers of the ancient British Kings with that of a tin

god Prime Minister, but could be removed by the Congress (representing the

people) even for doing nothing criminal.

(iv) For the purpose of redress, most especially where the state had trampled

on their rights or intends to cheat an ordinary citizen, the powerful Courts

are there to rescue the individual, and the freedom of the American judiciary

has no equal in the whole world.

Adams Smith, the second American President description of the balances in the

American political system has been summarized by Tella (1978) thus:

The states are balanced against national government;

The House of Representatives is balanced against the Senate;

The Executive is balanced against the Legislature;

The Judiciary is balanced against the Executive and the Legislature.

The Judiciary is balanced against the states;

The Senate is balanced against the President and

The People are balanced against the Government.

1.3 SOCIOLOGICAL JURISRUDENCE: THE UNION OF SOVIET SOCIALIST REPUBLICS (USSR) EXAMPLE

The Soviet Union is today defunct with Russia behaving as the most successful survivor. But while the Soviet dream lasted it was real.

The historical fact behind it is that there never used to be a USSR until the 1917 Revolution and it started from events in the then Russia, which later became one of the fifteen “equal” autonomous Republics, though then its political culture was dominant. Russian history started under the chieftain of Oleg (878A.D.) and in 1237 it became a vassal of the Mongol. Its nature historically was not different from that of other nations in Europe but it was relatively isolated.

It was Tzar Peter the Great (called St. Peter) who started industrializing Russia by opening the “window” to the West. Thus he introduced the nation to capitalism and industrialization and the idea of Marxism.

The 1917 Bolshevik Revolution was therefore produced by:

. the Russian experience of colonialism under the Mongol.

. exposure to Western values (rights, liberties and privileges enjoyed by the

commoners of Europe and America and deprived the commoners of Russia).

. exploitative nature of capitalism (the peasants and the working class were

exploited).

But while the Western Europe workers looked up to God to rescue them from their capitalists (bourgeoisie), the Russian peasants and proletariats were less dependent on God but believed in self-redemption (REVOLUTION) as the way out. They armed themselves with the philosophy of Karl Marx who in his dialectics traced the history of political control to economic control with the revolutions that had accompanied the transitions. The consequence of the above was the Bolshevik Revolution.

1.3.1 THE BOLSHEVIK REVOLUTION

The challenge against authoritarian government was started by Herzen and Bakunin around 1861, after the emancipation of the Russian serfs through education (Spiegel and Wehling, 19999).

Thus, the Russian socialists movement began what the victorious Bolsheviks concluded thus bringing about the Russian Revolution.

Lenin was one of the leaders of the revolution who asked the proletariat to take over government from the bourgeoisie or capitalists; they thereafter created a dictatorship of the proletariat, who were the toilers in the towns and villages. That was the starting point of the whole fiasco.

The method by which the objective was to be achieved however divided the revolutionaries into two camps. While the Lenin/Trosky group advocated for more lenient measures; the popularist declared war on autocracy and Alexander II’s (the most lenient of the Tsars in Russian history) half-hearted measures. He was assassinated on the 1^st March 1881.

Lenin emerged as the leader and formed a union of strugglers for the liberation of the working class, which disseminated Marxist ideas among the workers’ circles. The last straw that broke the camel’s back was on the 11^th January, 1905 in which the police fired at demonstrators. That hardened the revolutionaries who insisted on and got a legislature that was truly democratically elected, through the fundamental law that transformed autocratic government in Russia to limited monarchy as in present day Britain.

By now there were too groups of the revolutionaries – the Bolshevik and Mensheviks at the ratio of 175:370 in the parliament, via the 1917 election. It was however the more powerful minority (Bolsheviks) who presented a memorandum which the majority (Mensheviks) refused to endorse and that was led to the Bolshevik disallowing the reconvening of the assembly through the “veranda” boys. That led to a civil war and the second all-Russian Congress later seized power, in the name of the Soviet workers, thereafter, implying that by 1917 the Bolsheviks had established themselves in power and supported Lenin to put into practice the theory of Karl Marx, which were his ideas. The subsequent government was based on the dictatorship of the proletariats i.e. the working class (the masses without the peasants). The proletariats later consolidated their position and became masters of the destiny not only of Russia but the whole of USSR.

The first decree promulgated prohibited all forms of demonstrations and by whatever group. The decree also helped to terminate the civil war. The second decree restricted press freedom while the third removed freedom of religion.

The first Soviet constitution was adopted during the 5^th All Russian Congress of Soviets in 1918. The federal nature of the Soviet Union was later introduced, and power was divided between the central and the fifteen Republics. In 1922, Lenin the father of the revolution died and that led to power struggle among his lieutenants since the constitution did not spell out a method of succession. In fact, both party and state officers struggled to take over the leadership of governance, as there was no distinction between the state and party, which essentially is the character of democratic centralism. One of the contestants for leadership and who eventually emerged was Joseph Stalin.

Let me first describe democratic centralism and after that tell the story about the game better described as leadership recruitment pattern in the then Soviet Union, so that we can understand what it is to depart from sociological jurisprudence.

1.3.2 DEMOCRATIC CENTRALISM

the following are the essential Features of democratic centralism (Shapiro, 1968).

Election of all party and state organs from top to bottom; such that people in the next

higher level are elected from those from the level immediately below it.

Periodic accountability by each office holder to his level and that organ immediately

below it i.e. the organ that elected it.

Strict discipline and subordination of “minority” views to those of “majority” and the

true meaning of majority/minority determined by power position placement.

Subordination of lower organs to the decision of the higher organs.

Democratic centralism therefore is a combination of democratic and centralistic principles of governance (what a concept). Furthermore, the structure of the party and the state in the Soviet Union were never distinguishable, both were heavily interlocked. It should therefore further be noted that until the Kosygin/Brezhnev enthronement, the party and government were one and the same thing with virtually the same person occupying the positions at the party and state level. The structure was as follows.

Fig. III THE STRUCTURAL – FUNCTIONAL NATURE OF DEMOCRATIC

CENTRALISM IN THE DEFUNCT USSR.

STATE PARTY (CPSU)

Chairman Council ------- One and same -------- First Secretary

Of Minister

Presidium of Council --- Equivalent --------- POLITBURO

Council of Ministers -- Equivalent --- Central Committee

Executive Arms of State

Presidium of Supreme Equivalent All Union Party Congress

Soviet (superior legislative arm)

Supreme Soviet Equivalent Party Secretariat of

Respective Union’s

Nationality

Soviet of Soviet of Equivalent Party Members

The Union’s Nationalities

The two chambers of legislators

(Like States in Nigeria).

The USSR PEOPLE --- Equivalent Not everybody belonged to the party.

1.3.3 RECRUITMENT PATTERN TO STATE HEADSHIP

STALIN

The death of Lenin left two powerful rivals for his position. They were Trosky – the colourful and talented hero of 1917 revolution and the civil war, who the people presumed was Lenin’s silent choice – against Joseph Stalin, know, but less popular. What Stalin did was to banish Trosky to Siberia in 1928 (through the machinery of state) and become the undisputed leader of the country. In order to maintain himself in power, Stalin was alleged z to have assassinated some members of the Constitutional Drafting Committee whom he termed “traitors”, though the constitution they drafted was later ratified. There was also the 1936 Great Purge apart from other systematic measures of liquidating his opponents (either on charges of anti-revolutionary or anti-party activities). Stalin destroyed nearly every important official he he and put in their places, new and loyal ones who own their position to him. He succeeded in controlling economic, social, cultural and intellectual aspects of the Soviet people, both at party and state level. He died on the 5^th March, 1953 and in controversial circumstances, as people believed that he was poisoned. His successor was Khruschev.

NIKITA KHRUSHCHEV

By the time Stalin died, he left a group of people almost equally powerful

In the state and the Communist Party of the Soviet Union (CPSU); therefore, no particular peron could be called his heir. By 1955, two of the equals had become more equal than the others under the guise of what Khruschev called “collective leadership”. They were N.S.Khruschev himself, the 1^st Secretary of C.P.S.U. (The official and the only party in USSR), who was also a member of the Politburo as a matter of right and Secretary of the Central Committee of the Party; and A.M. Malenkov, Chairman of the Council of Ministers of USSR. Together they were alleged to have plotted and executed Baria the head of the KGB the secret Police by 1938, having accused him of planning a coup against a government that had not been formed.

Since the party was his constituency, Khrushchev made moves to put the party above the State in order to consolidate his position. This move met with resistance from Malenkiov and Kaganovick whom he Khrushchev then accused of anti-party activities. He expelled thenm from the only state party and relieved them of their governmental duties. Kruschev took over Malenkov’s position as Chairman of Council of Ministers, thus, becoming the strongest man both in the party and government.

He achieved his objective by allying with and through Field Marshal Zhukov, whom he later removed from the Cabinet i.e. Council of Ministers. Kruschev then moved on to reform the party and to step up industrialization. But by the end of 1958, kruschev had fallen due to overconfidence and underestimation of his subordinates who now accused him of being the one who poisoned Stalin. But just as he was alleged to have undone Stalin, Kruschev was betrayed by those he made and though was not killed, he was tried by the POLITBURO and forced to resign; he later died of stroke.

His position was taken over by L.I. Brezhnev who became General Secretary of the party and A.I. Kosygin who became the Chairman of the Council of Ministers, thus putting two portfolios that used to be combined in one powerful person in two hands. It must, however, be noted that it was in the days of Brezhnev that the collapse of the Soviet Union was plotted and executed. Gorbachev, eventually presided over the dismantling of the Soviet Union and by 1990 the country was nothing but history.

1.4 SUMMARY OF THE EXAMPLES

We have used three countries as examples. Britain which went through slow and evolutionary changes spanning over centuries to evolve a complex interrelationship among its political institutions: the House of Lords that is the highest court of the land; the House of Commons that has both the Prime Minister and Cabinet; and the Monarchy that is the sdymbol of the nation. – The country has settled for parliamentary democracy.

The United States which had equally allowed its experiences of the changes in Britain (its origin) and the reality of its own peculiarity as a nation settled for presidential system of government from 1789 to date with only four amendments since then. It now seems that only the arrival of Jesus at his Second Coming that can bring about any more fundamental changes in Britain and the United States respective constitutions.

Between 1917 and 1990 however, the Soviet Union brought about a revolutionary change with a constitution to the effect since 1936. Har system collapsed due mainly to an inconsistent patern of system maintenance and leadership recruitment that is no better than a war in the jungle among political wild animals under the guise of DEMOCRATIC CENTRALISM. It is reasonable to conclude that the Union had crumbed for lack of sociological jurisprudence which both the British and United States systems exemplify, though in different systems within the frame of their respective political system. It is this that brings us to the point where we have to evaluate the nature, station and future of Nigeria in her disposition to sociological jurisprudence.

2.0 BRIEF CONSTITUTIONAL HISTORY NIGERIA:

There are two ways by which this story will be told. Political and sociological. Let us start from the political first.

There have been seven distinct eras of Nigerian onstitutional history but only three patterns. The eras are:-

The pre-colonial and monarchical era with unwritten constitution. There were fragmentation among the groups, but each was cohesive internally like a nation before 1914. Each nationality was ruled by an ascribed Prince (North and West) or merchant Prince (mainly in the Southeast). The states, which are mega states by virtue of their size, include Sokoto, Borno, Oyo and Nini as Examples of the mega states. The micro states include for example, Efik, Ibibio and Onitsha (East) and mini nations like among remain fragmented and ethnic in nature, and sometimes the ruler used to be quasi-absolute and in some other cases pseudo-democratically recruited, but all had life tenure (Obayomi, ).

The colonial period: 1914-1960 with constitutions of Lugard, Clifford (1922), Burdillon (1939), Richards (1946), Macpherson (1951) and Lyttleton (1954). These was an era of British domination which gradually liberalized from one constitution to the other until 1960 (year of Independence). It ended up in a pseudo-parliamentary era fairly reflective of Nigeria’s history with a differently composed Senate and more potent House of Representatives at the federal level. At the regional level, however, a House of Assembly for each region aqnd House of Chiefs respectively for the North and West and none for the East.

The Independence/Republican era of parliamentary democracy built on the 1914-1960 experience with such features as federalism, regional party politics and republicanism rather than monarchy. There was also built into it a kind of elitism which had dislike for the monarchies who were virtually silenced or subdued.

The 1963-1979 militarized era where one group of the national elites (military) seized power, and tossed it among themselves by the means of coup d’etat as the means of recruitment. They ruled by decrees rather than civilized laws and they turned the country of one hundred and twenty million people living in 923,768.64 square kilometers miles into a unit of command, like a military barrack. Those were the dark days of Nigeria and part of our sad historical experiences.

The 1979-1983 Second Republic with presidential Constitution like the United States, which was alien to Nigeria. It soon collapsed four years after it was introduced and gave room to the second coming of the “barbarians”in uniform.

The “barbarians”came for a second time and ruled for another fifteen years 1983 – 1999, like they did in 1963-1979. This time, they were worse than in their first coming and only returned to the barracks after a national disgrace, and their self-disgust.

Then came our current tickle and 3^rd Republican, Presidential democracy, which is not significantly different from that of 1979-1983, in one’s assessment. However, I refuse to be attracted to issues like corruption etc. in the second and third Republics because they are not very pertinent to sociological jurisprudence as operationally used here.

Let me now sarcastically describe the profile of the Nigerian largely regional-centric rulers from 1960 to date.

2.1 NIGERIAN RULERSHIP PROFILE

Before the military that turned the country into a unitary (either de-jure or de-facto) structure this country was a federation in the hand of a genleman Prime Minister Abubakar Tafawa Balewa. The East, West and North were distinct regions each suppressing its minority, and the dominant group ion each region dictated the pace in all spheres.

The North spent groundnut money, the West cocoa money and the East, palm oil money. Each paid its tax to the Federal Government. But the deformers of Nigeria emerged either framing or claiming exigency and pardon me if I refuse to call the military rulers by name because as far as I am concerned, their names should be removed from the military history of Nigeria because they wre like robbers who stole political power. They should therefore only be reckoned with as criminals in history of the country and as successes in treason. On the other hand, my highest regards go to the gentleman Balewa, the first Prime Minister of Nigeria, whom the “barbarians”killed and that makes them murderers of democracy.

The next after him was the innocent but semi-political illiterate General, who simply turned Nigeria into a military unit or command and ruled with Orders and as a Command-in-chief- what an insult to the nation!

The next was the then juvenile General, who because of internal disaffection with his ‘half-brother’ mortgaged everything concerning Nigeria including oil-rich Bakassi. He frittered away the resources of the nation, in a festival of pornographic dancing, no better than an Opera or Balley Dance performance in a Russian nightclub.

Then came General Fix-it (beloved by history) but a sworn Northern tribalist, akin to an oriental despot; he harassed Nigerian in their fatherland. However, he only lived for six month in office before another of his khakiman gunned him down. His Southwestern origin deputy soon tok over but spent more time mourning his boos’ death than do anything serious about Nigeria. He however did one thing right, moved his impostor brothers and their barrels of gun back to the barracks, and retired himself in 1979.

I must recognize Alhaji Shehu Shagari the elected President of Nigeria by the judicial mathematics’ of 122/3. He was second only to the gentleman Balewa, whom the Barbarians in uniform killed Balewa came in through parliamentary democracy and Shagari as President via presidential system of governance.

But we soon had the Bravado Mullah with his “able” lieutenant, the African “Bin Laden”. They coerced Nigerians silly and were soon shoved out of office by the Evil-one, whom history must not forgive until he publicly purges and tells Nigerians what happened to June 12 and why he stepped a side. Rather than give the “cup” to the winner M.K.O. Abiola he had to hand it over to a spectator “Baba-no-regret” whom he singlehandedly picked and bequeathed Nigeria to, just like a market woman would casually ask an idiot to look after her ewedu in the market. What an insult to the nation!

Baba-no-regret was soon shuffled out of power, probably with a stick’s threat by the Bulldozer, better termed Death messenger, who sent more Nigerians to their graves than even death could have bargained for in a real war situation. Not even the author of the Grammar of Politics (Laski, 1934) would have been able to find or frame the proper name for the type of governance he put in place (totalitarian, despotism, dictatorship); nor even a Dare Babarinsa whom he had made “journalisticracy” could coin a better word than “Maximum Ruler”. Wole Soyinka was simply transformed to a liar as he “RAN”for dear life”even though he had once boasted “I-no-go-go”.

To ensure his transmutation from military to civilian rulership, the Bulldozer created the five political parties each of which named him as their presidential candidate. No wonder BNola Ige in 1998 called the parties the “five-leprous fingers of a leper”. The Bulldozer however showed that he was more “BRUTISH” and raw than the one who created just two parties and annulled the parties out of existence and himself out of history as he annulled the JUNE 12 Election (the most free and fair in Nigeerian history).

After him came Brother-No-Regret who like the Deputy to General Fix-it handed over Nigerian to a civilian government (another bravo) but his own boss was not killed, he died of ‘sexide’.

I must mention the name of Chief Olusegun Obasanjo who as far as I am concerned is our own Third Head of State who came after Shehu Shagari, our President by mathematics and Gentlemen Abubakar Tafawa Balewa killed for no just cause.

2.2 THE SOCIOLOGICAL BACKGROUND OF NIGERA

It must be stated that before 1914 there was no Nigeria but fragmented societies each independent of the other. Sometimes, even neigbours differed in governance pattern while relatively distant group were similar. The societies remain larely ethnic in nature (Francis, 1976) and of five major breeds:

The acephalous ones like the Igbo in the South-Eastern area and Tiv in the Middle Belt who based their governance on ancestral lineage and kinship. They were small in their units with genealogical relationship and sentiments based on kinship relationship. Within each cluster, they are equally segmented but outside they seem united like a bond of woods.

There are also the ethnic ones in which the basis of association goes beyond kinship to tribal solidarity as among the Ibibio and Efik people in the South-South geographical area.

In the rudimentary and multi-ethnic grouping there are monarchies and units of civil and military officers of the system. The Hausas in the North and among the Yoruba, in the South-West Ijesha, Egba; and in the South-South is Warri. However, this does not include the Empires of Oyo and Bini respectively.

The ethnic-demotic mega states with enlarged bureaucratic officers of state as in the Borno and Kanem in the North-Eastern geo-political area and;

The simply imperial systems of the Fulani (North-West), Oyo and Edo (South-West) where feudal lords and their manors interrelated.

It is little surprise therefore that it was not difficult for Nigerian groups to intermingle and interrelate when amalgamation in 1914 become a reality as their traditional political systems were similat on a nation wide basis. What however accounts for the political inability to accommodate one another that had characterized Nigeria since amalgamation can be deduced from the write-up of eminent scholars such as Ayandele (1976) According to him, the deliberate political manouvre of the colonial master (Britain) in using three separate instruments to colonise the peoples from the three regions which were later merged into an entity led to the creation of the “three peoples theory” and each with its kind of nationalistic behavioural pattern. He quoted Halligrey who justified the use of the colonial army against the North, in subduing it thus: “the substitution of a civilized authority for accused despotism of pagans (Hausa) and Mohammedan (Sokoto) power is an obvious divine-will”. Citing FC 27/3/61, he shows how the Royal Niger Company (later UAC) belonging to a British man, Sir Goldie, was chattered to oversee the East and pay tax on whatever it could “exploit”.

The West was the luckiest, it was the Bible that was used. But as the slaves

Were bought over from their masters by the missionaries, they became known as brothers and sisters even to the white man and therefore were vowed against their fellow Africans who hither-to enslaved them. Call it divide and rule but it was not new for colonial masters to do something like that in their colonies.

Elites from each region therefore came from different backgrounds. Those with Western education (West), business orientation (East), and Islamic scholarship (north) and were “sworn) never to be friends.

The military surfaced as a creation of the colonial system and its agents, thus it became the fourth source of elitism in Nigeria. But as the Jihad soldiers got converted to the British Frontier Forces Z(other ranks) being essentially Northern, the smart British colonial system was recruiting an officers corps that was essentially Eastern (Ademoyega, 1981).

However, Nigeria is regional-ethnic comprising of:

Northern Region where the Fulani, Hausa, Borno, Tiv are dominant;

Eastern Region where the Igbo, Ibibio, Efik are dominant;

Western Region where the Yoruba, Edo, Urhobo are dominant.

So where as none of the regions was in any way monolithic.

Things remained so until the Mid-west was created out of the West in 1963.

In 1967, the military divided the four regions into 12 states, 19 in 1976, 21 in 1987, thirty in 1991 and in 1996 they became 36.

But suddenly we reverted to the North-South bi-sectionalism of the post-amalgamated territory and we started talking of:

South: South_East, South-South, South-West;

North: North-East, Middle Belt, North West.

In the same token, Nigeria is today of 35 states apart from the Federal Captial territory distributed such that 18 are in the old North whose population is less than the southern half of Nigeria with 8 states in the old West and 9 in the old Eastern region whereas population distribution is such that there are more people in the West than in the East.

In short, the West is the worse for it. The picture can thus be presented thus.

Figure IV: The Ethnic and Geo-Political Distribution of Nigeria.

REGION EAST WEST NORTH

Peoples Igbo,Ibibo, Efik etc. Yoruba, Edo, Irobo etc. Fulani, Hausa, Borno, Tiv

States Enugu, Anambra, Ogun, Oyo, Ondo, Osun, Sokoto, Kano, Borno,

To Date Imo, Ebonyin, Abia, Ekiti, Lagos, Edo, Delta Bauchi, Adamawa,

Cross River, Rivers, Kebbi, Zamfara, Niger,

Akwa Ibom, Benue, Plateau,

Bayelsa Kaduna, Jigawa,

Kastina, Gombe,

Nassarawa, Taraba

Yobe, Kogi Kwara.

Geo- South East and South West and Part of North-East, North-West

Political Part of South-South and North central.

Socio- Acephalous, Ethnic Multi-ethnic; Imperial Multi-ethnic, Ethnic-

Cultural Demotic, Imperial

As no time however has Nigeria succeeded in socializing its people towards national affection (Tella, 1984) but we remain Fulani, Hausa, Borno, Tiv, Igbo, Efik, Ibibio, Yoruba, Edo in loyalty first; then East, North or West; then South-South; South-East, South West, North-Central, North West or North Eastern in thast ordfer.

Regionalism remains the most significant divider of Nigeria with fanaticism and fundamentalism as the basis of religion. The Nigerian cultural differences remain based on putative common ancestry, memories of shared historical past which Schmarhorn (1970) describes as the “epitome of cultural fragmentation”. Yet a solution must emerge if the nation is to forge a head.

SOCIOLOGICAL JURISPRUDENCE AS FOOD FOR THOUGHT FOR THE NATIONAL POLITICAL REFORM CONFERENCE

There are obvious needs for constitutional, party politics, electoral and governance reforms in Nigeria among others enumerated here as civic and fundamental righrts, constitutional issues, which I now proceed to discuss strictly from my own perspective.

CIVIC AND FUNDAMENTAL RIGHTS ISSUES

One universal issue which the constitution of any respectable society is concerned with is that of civic rights. It is a matter that Machiavelli, Hobbes, Spinoza, Montesque, Locke, Arorat, Rousseau, dÇondoriel, Bentham, Tefferron, Hamilton, Madison and Jay, have each written upon. It is a result of the French Revolution, the English people’ Magna Carta 215 and the Federalist Essays of the people of the United States. They are the issues that make even the Anti-Abacha persons ask igeria why Bamaiyi, Al-Mustapha and Sofolahan et al sould remain on trial and in prison custody, five years after their matter, no matter how criminal, was taken to Court. Simply put, and by whatever parameter, justice delayed will always be justice denied as this is a matter for concern and serious consideration for the Reform Conference.

CONSTITUTION ISSUES

The other issues are generally constitutional, but must have Nigeria fact and reformatory orientation. They touch issues like:

Parliamentary democracy Vs Presidential system – as a reflection of our socio-political background.

Which one to uphold in resources ownership pattern in Nigeria; social ownership of means of production as against privatization, deregulation or private sector ownership?

Federalism Vs confederalism: rotational headship and power sharing Vs politics of number (democracy).

Electioneering processes in Nigeria i.e. organized ballot boxes stealing or organized Victory Vs Victory at polls.

My Perceptions

Parliamentary Democracy or presidential system. This is a big issues for Nigerians and the answer must emanate from our political historical background. Before colonialism however, the Emirs, Obas, Obi and Amanayabos apart from the “minor” Emperors in Sokoto, Oyo and Bini, ruled the country.

They fought within and among themselves for territories and authority until the British arrived. They created within their respective system an hierarchy of rulership which the colonial system tried as much to destroy but only succeeded in disrupting it, for a time and the system remains even till today.

The British virtually integrated the monarchical system into its governance of Nigerians when they introduced parliamentary democracy, with House of Chiefs in the Regions and a Senate composed via selection but not occupied by Chiefs but the elites with Western education background.

Ladies and gentlemen if we must be sociologically prudent, we need to return to that order, i.e. a Senate composed of a category of natural or paramount rulers (not chiefs) whose number may be co-terminus with the present Nigeria Senate and whose powers must be almost equal or a little less than that of the House of Representatives unlike our first Republican Senate. That structure must be deplicated at the states level.

This idea however may not be palatable to the political class who over the years have subdued the institution in this country and would wish them nothing more than mere spectators in Nigerian politics. However, they are the same people to whom this country runs at each stage of crisis.

What is being canvassed here may not sit well with the political class that have come to usurp the powers of the Nigerian monarchies in history. This novel “Senate” would have to rate their membership putting the geo-political division in their state into consideration and it must remain non-partisan. Its powers over any matter must be equal if not superior to that of the House of Representatives, whose representation must be based on population.

RESOURCES OWNERSHIP PATTERN

Nigeria seems perfectly in confusion for now as to what mode of economy to practice. On the one hand we practice social or public ownership of mineral resources which even heaven embedded in some peoples’ inherited landed properties. On the other hand, we want privatization of the end product of thos resources and also ensure that government subvention of them, particularly for poor is removed through deregulation. In essence, this country is protecting capitalism at the expense of feudalism. At the same time all welfaristic and socialistic programmes or schemes are deregulated making the country a haven for the rich and a hell for the poor.

The rulers are thereby creating more wealth for the dynasties of the few capitalists thereby removing the middle class society of the haves, and the bottom-of-the-rung have-nots. It is these inequalities and deprivation in all their ramifications Curr, (1968) that have turned the expected decent Nigerian youths of the Niger-Delta to vagabonds, since the nation seems not ready to listen to their side of the story and they already feel betrayed by those in whom they had placed their trust. Hence a clear-cut policy is desired of either returning to the first Republican order in which the people are allowed to exploit their resources and pay their due tax (no matter how exhobitant) to the government and no matter how many times e.g. local Government, State and Federal taxes), or a return to the socialist order of the Gowon era in which the state takes all and gives to the original owners what eminent domain dictates i.e. “just compensation”.

FEDERALISM Vs CONFEDERALISM

The most serious but hardly given a consideration is the issue of federalism Vs confederation for Nigeria. The United States of America is a success story in federalism, but it is not better than Canada (a confederation) when we talk of internal peace. The Canadian history however is more akin to Nigeria than that iof the United State. Unlike in the United States where they had a dominant group (Euro-Americans) neither the French nor Anglo-Canadian can claim superiority over the other. It is same with Nigeria to the extent that we had a North, East, West but no other basis of division.

We either ;earn to live among ourselves with mutual trust, or else we live in mutual fear. Where community conflicts in a nation has reached the stage of armed hostility and where social fragmentation is well entrenched as against integration, confederacy becomes the most viable option, if national collapse as in USSR, should be prevented. I therefore sincerely recommend this as food for thought for those who are going to be at the National Political Reform Conference. This is despite the fact that the Nigerian military since they ‘struck’in 1963 and because it suited their command structure turned Nigeria’s into a unitary system. What started with Ironsi via a decree subsists till date even though the decree had been abrogated. Ours therefore is a lip-service federalism with the largest chunk of the national purse being held by the centre and states are forced to look up to the former for handouts.

If behoves us therefore to bring back the days of yore in which the regions baked and dispensed with their cakes as they deemed fit for their own good. We must also, by proper operation of the federal system, bring back the healthy cpmpetition that characterized the First Republic.

SYSTEMS MAINTENANCE

Very important but often taken for granted is the issue of systems maintenance for Nigeria. We have earlier presented the fact that the Nigerian political system has no means of maintaining itself therefore, its faulty electoral system which can no longer reflect the wishes of the people at the polling booth.

We have had only three national headship recruitment out of eleven (11) by democratic and constitutional means. The rest had been by the brutal means of coup d’etat.

A system as described above is therefore badly maintained and to prevent that from continuing, a re-think about our electoral system becomes most expedient. The 2003 Elections have, for example, become a Pandora’s box Z(President Obasanjo Vs Audu Ogbe before the Nigerian Press).

The following notorious facts have become obvious concerning our elections.

It is not the ballots cast that determine who becomes the ruler in Nigeria, it is the Electoral Commission and the State apparatus that determine who ‘wins’ an election.

All decent persons except those in hectic politics have lost faith in the Nigerian electoral process and system. The only answer therefore is to go back to the crude but relatively less contentious option A4, where voters line up behind their chosen candidate and counting is done on the spot in the presence of all

The kind of system we operate in Nigeria is fundamentally flawed and beckons to anyone with sufficient pluck and bravado to rock the boat.

There is glaring inequalities and inequities; there is rank poverty in our cities, towns and villages; there are hungry and angry youths unemployed, but employable roaming our streets; these are human cinders that could be fanned into conflagrating embers at a momemt’s notice. In the midst of this abject poverty there is the devil-may-care display of ostentation. Our corridors of power reek with stupendous wealth and equally stupendous display by those on the throne. There is the cornering of much wealth by so few a people to the chagrin of the many.

We need therefore to figure out how to make our leader, servants of the people and not servers of themselves in power. They should be leaders with proven integrity whose raison d’etre for seeking power should be to serve, and not bleeders to live off the people as leeches.

We equally need to figure out how to have a crisis-free political leadership recruitment system, where the voice of the people actually matters, where their will is not shunted aside or subverted by an unscrupulous political class. We need to fashion out a transparent electoral system where the people are actually kings.

CONCLUSION

A close observation of this discourse will reveal its leit motive, that of sociological jurisprudence. There is no nation that has developed or achieved political stability that has not taken cognizance of this concept. The Soviet Union (now defunct) ignored it to its own peril. This country needs to learn that lesson.

Nigeria as a nation that seeks stability and progress cannot afford to shun sociological jurisprudence. It is either she embraces it wholesale or neglects it to her ruin.

REFERENCES

Ademoyega Wale (1981), Why we struck: The story of the first Nigeria

Coup Ibadan: Evans Brothers Nig. Ltd.

Almond G., Verba S. (1984), Civic culture revisited. New York:

Little Brown

Awolowo, Obafemi (1966), Thoughts on the Nigerian

Constitution, Ibadan: Oxford University Press.

Brett, S.R. (1959) A History of the British Empire & Commonwealth

Thomas Nelson & Sons Ltd., London.

Dicey A.V. (1931), Law of the constitution London Macmillan & Co.

Ifeka, C. and Stride G.T. (1982) Peoples and Empires of West

Africa Nelson, Lagos Nigeria.

Laaski, Harnold (1934) Grammar of politics. London, George

Allen and Unwin.

Lipson, Leslie (1976), The great issues of politics, An introduction to political Science.

5^th Ed. New Jersey: Prentice Hall.

Post, K.W.J. and M. Vickers (1973), Structure and conflict in Nigeria. Suffolk:

Heinemann Educational Books.

Ripley, B. Lowi T.J. (1973) Legilatives Politics U.S.A. Littlem,

Brown & Co. Canada.

Rossitor, C. & John, I. (1961): The Federalist Papers: A New

Nation, Conceived In Liberty, Signal Montor Clasic Plum.

Madison & Nal Books USA.

Stavrianos, L.S.(1968): A global history of man, USA: Allyn & Bacon Inc.

Tella, P.O. (1978): The Social Origin of Three Models of

Government llorin, Kwara Technology.

Williamson, J.A. (1956) The British Empire and

Commonwealth, Macmillan & Co. Ltd., London.

Yesufu, B.A. (1980): For the liberation of Nigeria, London: New

Beacon Books.

SOCIAL ORGANISATIONS, THE LAW AND DEVELOPMENT

IN NIGERIA

Aduche Wokocha Esq

Ag. Head, Department of Public Law

UNDERSTANDING SOCIAL ORGANIZATIONS

Social organizations are collection of persons into bodies which possess the ability to formulate independent corporate goal, take decision, implement or carry out actions, as well as regulate the conduct of members with respect to its objectives.

The essential characteristics of social organizations may be listed as follows:

They are formed to operate within the rules of the community.
They are formed to pursue particular goals or objectives.
They are formed by persons who voluntarily joined.
They are autonomous and regulate membership and discipline.
They exist independently of their members.
They are stronger and often richer than their individual members.

TYPES OF SOCIAL ORGANIZATIONS

The source of social organizations’ values have been described by BLAU (1964: 34-38) as being intrinsic when they benefit the individual members and extrinsic when they pursue the general good. CLARK and WILSON (1961: 128-160) have on their part proposed a three point categories of “Material” (for pecuniary value) “solidary” (for group interest) and purposive (for general value).

Social organizations may be classified into two broad categories, namely:

Administrative organizations and
Voluntary or autonomic organizations.

The first category covers social agencies created voluntarily by society for purpose of management of the society. These include organs like Administrative bodies, the council of chiefs, the council of elders, the Community Development Committees (C.D.C.) in a very limited sense, the Community Women Association and the Students Union Government are parts of this category.

They are created by society, to exercise the powers of the society the same way government at all levels exercise the powers of the Nigerian State.

The autonomic organizations on the other hand, are created not by the general powers of the community, but by the voluntary exercise of the right of association by citizens who are entirely free to associate for any purpose that is not unlawful in the rules and opinion of the society.

This distinction is important, as we are concerned primarily with the second category of organizations examples of which will include Committee of Friends, – Dance Clubs/Societies, Social Clubs Age Grades – Students Unions – Guilds Of Artisans – Professional Associations – Youth Associations – Religious Organizations etc.

These are groups which possess powers to operate only within their membership. Save in situations where they have been permitted by the community to exercise community powers delegated to them to exercise on the society’s behalf examples here are age grades in the past, youth associations and Man ’o War club which have played security roles.

OBJECTIVES OF SOCIAL ORGANIZATIONS

The objectives, for which social organizations may be formed, are as diverse as the methodology they adopt in pursuing their objectives.

We have the “Committee of Friends”, which comprises an association of friends who resolved to form themselves into a distinct body for the purpose of solidifying their friendship and pursuing any other objective they may choose. Their objectives often also include the promotion of friendship in society, and the generation of friendship, social solidarity and development in the society in which they operate. The Quakers is a perfect example of this.

We have the friendly societies, which are associations that make provision for mutual benefits, of members, by providing for the needs, of sickness and old age bereavement, orphanage, and other misfortunes among their members to whom they pay specified or agreed sums of money or service upon the occurrence of the events. Peoples Club of Nigeria, Kindred and Village meetings in cities, and Thrift societies offer good examples of this. They are formed strictly to provide for their members on “rainy days”. They hold periodically fixed meetings, and regularly contribute to a fund for the aforesaid purpose.

We have Professional organizations which are associations of specialists who belong to the same profession. They are usually formed for the primary purpose of enhancing their members practice and the preservation and advancement of their profession. They also have the general objective of promoting the welfare, peace and advancement of their societies. The Nigerian Bar Association, The Nigerian Medical Association, and The Nigerian Society of Engineers are perfect examples of these.

We have social organizations of purely ideological nature, these are associations of persons incorporated or not, who have chosen to associate for the purpose of promoting an ideal such as education, religion, culture, sports etc. they are usually charitable and non profit organizations, prompted not by the will to help themselves monetarily, but to promote an ideal which its members cherish, in society. Leading examples here are the centre for Advance Social Science (CASS), The Civil Liberty Organization (CLO), Rotary club, Christian Association of Nigerian (CAN), Friends of the Earth, Schalesworths Centre for Democracy and Development. The society of Jesus (Jesuits).

There are of course on the other extreme, social organizations formed for purely commercial purposes. The Thrift societies mentioned earlier, the various cooperative societies, Partnership firms and Companies, all form part of this commercial cum profit oriented social organizations. These strictly engage in business with its members as co-traders of its ware, or in the case of companies, with hired labour to make profit to be shared as dividends among shareholders.

UNDERSTANDING THE LAW

Law as a term is capable of multiple definitions. It means as many things as there are people who have attempted to define it, and every definition bears a glaring evidence of the ideological learning of the definer.

First for the naturalist, it means right reasoning for the good of all, made, by him who is imbued with the authority of the society.

For the Sociologist law is an instrument of social engineering, one of the means of social control in society, used in balancing conflicting interests in society. For the historian, law is

a reflection of the spirit of the people, the totality of the peoples experience across time. For the positivist, it is nothing other than the command of a sovereign directed at his subjects who are in duty, bound to obey. It is for the American realist, a prophecy of what the courts would declare, and nothing more pretentious and, for the Marxist economist, an instrument of oppression with which the ruling class maintains its domination over the masses.

Despite the varying epistemological view points, law in its common and most ordinary understanding, signifies the rules and regulations that govern the society. It is the agreed norm adopted by its adherents as the standard to be observed in participating in their society. It includes the constitution of a people and the laws made by its legislatures, as well as the customs of import observed by its members.

It is important to understand law as the platform on which society is built, as the skeleton on which the flesh of human activities in society are woven. There is no society where there is no law, and no country where no law is known, for both society and country are intangible phenomena expressing the resolve of several sovereign and free individuals, to exist together under an agreed rule or standard. Hence the declaration of the 1999 constitution that

“Sovereignty belongs to the people of Nigeria from

whom government through this constitution derives

all its powers and authority:

Broadly speaking the objectives of law will include inter alia,

The provision of an accepted structure for society’s administration
The preservation of the dignity and inherent rights of mankind
The prescription of the accepted terms of inter personal relations in society
The provision of enabling environment for members of society to self realise and self - actualise.
The protection of everyone irrespective of their stature or status.

In providing for structure, society through its law provides a Constitution which prescribes the structure of the society, its government as well as the rights and duties of the people and their government. In preserving the dignity of man, law protects human rights through the doctrines of the rule of law and the principles of natural justice. In prescribing the accepted terms of interrelationship, law provides the rules of contract, matrimonial causes, commercial and property law etc. by which men may interact and transact with one another. In providing enabling environment, law imposes taxes through which government provides basic facilities for citizens and preserves peace for men to exercise reasonable freedom of thought, Religion and Expression whereby man may discover his destiny and be free to fulfil it.

THE LAW ON SOCIAL ORGANIZATIONS

The law appears to understand perfectly that in the modern highly evolved society, social organizations are veritable tools of self - expression and pursuit of happiness for its members. The law has therefore gone beyond recognising social organizations, to enhancing their capacity to operate in society, even here in Nigeria.

First the law makes ample provision in chapter 4 of the 1999 constitution, for the fundamental rights of freedom of association, movement, speech and expression, by which persons who so desire can coalesce into a recognisable group to pursue legitimate objectives of their choice.

Secondly it makes ample provisions in PART A (II) and B of the Companies and Allied Matters Act of 1990, for the appropriate means of incorporating social organizations of commercial and or profit oriented nature, partnership, limited liability companies etc.

Thirdly the law permits even charitable friendly societies among other social organizations, to engage in philanthropic activities, by incorporating under Part C of the said Companies and Allied Matters Act, while making other provisions in relevant Trust laws and tax laws, to grant them tax holidays, rebates and other incentives to encourage these activities.

To engage in charity, a social organization may commit part of its wealth to service to humanity in a manner that it desires, by either giving it expressly and verbally to the beneficiary or formally creating an interest (Trust) to be administered for the said purpose. For this purpose, he may execute a trust in favour of named person who are under the settlement, trustees for the benefit of the cause stated. This is to be done by (i) Executing an agreement or formal declaration to that effect duly signed and evidenced by witnesses.

Again, social organization may form a company limited by guarantee to pursue the object of a charitable nature such as the promotion of research and development or the promotion of education generally, under part A of the Companies and Allied Matters Act.

Similarly, they may also form Incorporated Trustees under part C of the Companies and Allied Matters Act of 1990. Such Incorporated Trustees must usually be committed to non- profit, charitable objectives of Educational, Religious, Social or Sporting Nature. To do this the philanthropist or philanthropists must appoint a determinate number of persons as Trustees, such persons not being infants, persons of unsound mind, undischarged bankrupts or ex-convicts of fraudulent or dishonest charges in five years preceding their appointment. An application for the purpose must disclose and enclose the name, objective, address, constitution, approving resolution and impression of seal of the association to the Corporate Affairs Commission at Abuja.

When registered, the Trustees become a body corporate capable of perpetual succession and a common seal with powers to carry out a variety of transactions on behalf of the body including the acquisition and transfer of property held for the benefit of the organisation. While under the earlier land Perpetual Succession Act, such incorporated trustees were enabled to hold land in perpetual succession, Professor J. O. Orojo (1992:546) observes that the current regime of the law, the Companies and Allied Matters Act, beyond simplifying the incorporation procedure of such bodies, has widened the scope of their powers and status, giving them the general powers of a corporation.

The basic characteristic of both kinds of organisation is that they do not make profit to be shared by individuals but are totally devoted to the attainment of higher social goals. They are exempted from taxation by the law, as they have no income to be assessed for tax purposes or as On the other hand, the income they generate serves social / public objectives and so is already the public’s, meeting the ends of public revenue. Accordingly, even when they are wound up or stop to operate, their assets are not shared by members, but turned over to another functional charitable organisation or company to further the public cause.

Thus it is clear from the above that the law does not only support , but encourages social organisations, to provide platforms for citizens to find voice and energy with which to self express in a complexly bureaucratic world in which globalisation in all forms, is fast extinguishing the worth of the individual effort.

UNDERSTANDING DEVELOPMENT

Development has been severally defined by various authors, but a concise expression of what it entails, is, advancement in the developer, enabling him access the good life and his life needs with less labour and at less cost and time. It is a general leap forward which transcends growth in one single department alone.

The World Development Report (1991:4) defines development in relation to a society or people, as the attainment of certain basic qualities including:

Good Health
High level of Education/literacy
Individual Liberty
Environmental security
Satisfactory individual Earning capacity
High Life expectancy and low mortality level.

To be developed, a community must have evolved an easier way to attaining these indices, by their own effort.

The UN also recognises that Development is a people - centred factor which is measured, not by the number of houses and cars in a community, but by the degree of ease and wealth of the life the people live. As Professor Claude Ake puts it, it is the attainment of an easier and higher life set by the developer in accordance with his aspiration value and need. For Ake therefore, the developer’s effort must be involved both in formulating the higher goal and in implementing it, for it to be development. In other words, Government dashed projects do not engender development, unless the people are involved in the formulation, execution utilisation and maintenance of such projects.

ENGENDERING DEVELOPMENT THROUGH SOCIAL ORGANIZATIONS:

The term society refers to the people in their collective co-existence. Because they constitute the community they are the greatest catalysts and creators of development. The free will and resolve to work for their own benefit is the motivation and in this, as Professor Augustine Ahiauzu. (1999:11) observes, the African man is at his best, compared to when he is in employed labour.

The non - realization of this role of the ordinary people in the national economy of African States,has been our development shortcoming which has led to our regressive backwardness in a fast globalising world in which the developed countries are excelling.

Social organizations are particularly poised to contribute immensely to the quest to engender development in Nigeria. This is because, in spite of the hostile and insecure economic environment and politically misconceived polices of state,

Ø They possess the means to raise and accumulate investible capital.

Ø They can maximise action and multiply strength and capacity.

Ø They can set and achieve social goals beyond the capacity of the average individual member.

In all these three ways they out - do the individual as their collective strength fiscal or physical, is far beyond the individuals. This pull of strength can therefore be pulled in different directions, to promote development in society. For instance;

Ø By advancing their individual members, by among other means, giving them soft loans to form capital with which they can invest in the economy, beyond their individual capacity, and thus earn larger profits than ordinarily possible.

Ø They can collectively invest as a co-operative society and enhance the members’ capacity to access goods and services far beyond their individual reach.

Ø They can also incorporate themselves into a limited liability company, and invest in the limitless areas available to such organizations.

On the other hand, social organizations, even as charitable organizations can engender development in society by engaging in human resources development this they can do by philanthropically providing and rendering educational services, contributing to educational institutions, granting scholarship to deserving and especially indigent students in their society, and lobbying the government and or appropriate authorities to improve in education and human resources development generally.

They can equally charitably engage in infrastructural development of their environment, by donating basic developmental infrastructure such as health centres and housing units to their community.

Finally they can strengthen social solidarity through mass mobilizations, and sensitise and inform their people adequately on basic and major development promotional skills and schemes as well as on social problems such as teenage pregnancy, other social vices and the dreaded HIV/AIDS.

This does not exhaust the developmental uses of civil society as even the intellectual prowess of associating members can be harnessed and deployed in varying dimensions to achieve various imaginative goals and developmental heights.

CONCLUSION

The importance of social groups to modern society cannot be over emphasized. Amply supported by the law, they offer the most effective opportunity for members to express their views and pursue goals that are their wish beyond their individual capacity In an increasingly globalizing world, in which individual effort is fast reducing in value. The law even in Nigeria recognises this fact and therefore creates avenues and incentives for willing social groups to harness the advantages of corporate action. How much an organization excels in its goals will be a function of how much, its members are prepared to harness, maximize and utilize the abundant potentials which social organisations offer today, and how prepared they are to deploy the abundant resources they possess in a creative and developmentally productive manner.

Are you a member of a social organisation?

Are you satisfied with the present objectives and achievements of your organisation?

Are you willing to go beyond modest goals to higher objectives of social and developmental relevance?

These are questions we must answer as citizens, and how we answer them has serious implications for the development of Nigeria. it is my hope and prayer that you decide both individually and corporately, to go as far afield as your might, finance and especially, intellect can carry you.

SCHALESWORTHS JOURNAL OF DEMOCRACY AND DEVELOPMENT REVIEW Vol.1 No.1. 2005

SCHALESWORTHS JOURNAL OF DEMOCRACY AND DEVELOPMENT REVIEW Vol.1 No.1. 2005

JOHN RAWLS THEORY OF JUSTICE: LESSONS FOR NIGERIA

Rawls’ Theory of Justice

Original Position

Two Principles of Justice

Development is not a project but a process. Development is the

process by which people create and recreate themselves and their

life circumstances to realize higher levels of civilization in accordance

with their own choice and values.¹⁴

One conception of justice is more stable than another if the sense

INTRODUCTION

_________________________________________________________

¹²

THE DEMOCRATIC IMPORTS OF ELECTIONS

Transparency Accountability and Sustainable Democracy

Transparency and Accountability in Nigeria: A Survey

Conclusion and Recommendations

Introduction

E.E AKHIGBE ESQ.*

SECTION 191 STATES: ANY WITNESS WHO

UNDERSTANDING THE LAW

schalesworthscentre

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SCHALESWORTHS JOURNAL OF DEMOCRACY AND DEVELOPMENT REVIEW Vol.1 No.1. 2005

JOHN RAWLS THEORY OF JUSTICE: LESSONS FOR NIGERIA

Rawls’ Theory of Justice

Original Position

Two Principles of Justice

Development is not a project but a process. Development is the

process by which people create and recreate themselves and their

life circumstances to realize higher levels of civilization in accordance

with their own choice and values.14

One conception of justice is more stable than another if the sense

INTRODUCTION

_________________________________________________________

12

THE DEMOCRATIC IMPORTS OF ELECTIONS

Transparency Accountability and Sustainable Democracy

Transparency and Accountability in Nigeria: A Survey

Conclusion and Recommendations

Introduction

E.E AKHIGBE ESQ.*

SECTION 191 STATES: ANY WITNESS WHO

UNDERSTANDING THE LAW

schalesworthscentre

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with their own choice and values.¹⁴

¹²