A Note On The Nigerian Legal Order By Ayo Sogunro
Abubakar Tafawa Balewa, first Prime Minister of Nigeria, was not always a believer in the necessity of Nigeria’s continued union after independence was achieved. Somehow, however, he became a convert to the need for a “Nigerian” state. Why he changed his mind may not be clear, but what he said about British cooperation in his Independence Day Speech on October 1, 1960 is meaningful:
“Each step of our constitutional advance has been purposefully and peacefully planned with full and open consultation, not only between representatives of all the various interests in Nigeria but in harmonious cooperation with the administering power which has today relinquished its authority.”
European imperialism is nothing astonishing in itself. It was expected that the British would seek to leave their stamp on the new nation. What is astonishing is that these nationalists did not—immediately they came into full power—annul the existing English-based legal order. Instead, they adopted it wholesale, refining it via minor modifications to accommodate their own power sharing arrangements.
By legal order, I mean the entirety of Nigeria’s legislative, executive and judicial systems including: laws, rules, regulations, policies, directives, court decisions, legal texts, legal education, judicial procedures, and government administrative procedures. Our legal order traces its origins to 1914 when the British introduced the English law as the foundation of Nigeria’s legal system.
This English-based legal order consists, essentially, of: (i) what lawyers call “common law” and principles of “equity” (these are hundreds of court decisions by English judges on cases between English citizens on issues affecting the English people from around the European Middle Ages up to the 19th Century); and (ii) the “Statutes of General Application” (these are the laws made by the English Parliament on matters directly affecting the English people up until January 1, 1900). These two aspects of English law were automated as Nigerian law and still govern our legal system.
It doesn’t take much analytical skills to see that the average Nigerian is automatically disadvantaged. This situation is the same as declaring that Ibo business customs, or Ijaw maritime practices would suddenly apply to all English people. And so, today, only the educated elite and those of specially trained as lawyers can benefit from—or understand—the legal order.
In addition to the imposed English law, the colonial government also made new laws for its own ease of administration. These laws instituted the principle of giving the President or a Minister unsupervised discretionary powers to exempt or waive legal provisions. By the time the post-independence military took over power, Nigeria’s legal system was locked and loaded into the anocratic philosophy that pervades the legal order today.
The unfortunate result of all these is that Nigeria’s core administrative institutions still run on this colonial template. Our bureaucracies, professional bodies, civil service and judicial systems are built around English administrative, professional and justice systems—systems designed for another time and another place.
These systems may be intuitive to the ordinary Englishman or woman who has grown up into adulthood with the contextual history and background of these systems, but not so intuitive to the ordinary Nigerian who grows up with a different, often traditional, context of law and justice.
Today, Nigeria is governed under a constitution that came into effect in 1999. But the 1999 Constitution is not the same thing as Nigerian laws or, even, Nigeria’s legal system. In theory, a constitution “constitutes” or “puts together” the country. It works like an operating guide, a user manual that explains the political design of the country, the shape and duties of the government and the rights and obligations of the people. This is why the constitution is—or ought to be—the foundational document of a country’s legal order.
But, in Nigeria, our constitution is not the foundational document of our legal order. Our legal order predates not just the 1999 Constitution, but also the independent Nigerian state. While Nigeria started out in 1900, and then got amalgamated in 1914, it was not until 1922 that it had its first constitution. Since that time, our leaders have continued the habit of designing constitutions that depend on our legal order, rather than a legal order dependent on the constitution.
Still, our current Constitution attempts to knock all of these laws (including other sources of Nigerian law: decisions made by Nigerian judges; some “surviving” customs from different ethnicities; Sharia law; and international treaties) together into a single framework. It has to make sense out of colonial laws, post-colonial laws and military laws. It is no wonder that it ends up providing more political loopholes than social guidance. The most visible result of this constitutional dysfunction is political patronage and corruption.
And so, while the current 1999 Constitution may struggle to democratic and liberal ideals, most aspects of our legal order—including the professional ethics of the Nigerian Bar—are feudalistic and autocratic or, at least, anti-democratic. This is one more reason why our elite gets richer and the masses get poorer.
To change any association, we have to change the rules. Our legal order has been “harmoniously” designed under colonial and feudal philosophies. This has created social inequality. Social inequality encourages corruption. Government cannot succeed in eradicating indiscipline or corruption when the tool it uses are intended to create inequality. The president cannot claim to fight indiscipline while he himself talks to his staff from a red carpet, or gives tax breaks to companies at his discretion.
Law reform—a comprehensive review and reversal of the inequalities, discriminations and segregations in our legal order—is necessary. When the rules are improved and the playing field is levelled, all other things will follow.