Possibly disturbed like other Nigerians, our lawmakers in the lower chamber reportedly summoned President Muhammadu Buhari (PMB) to provide answers to our rapidly degenerating and lamentable insecurity situation. While we commend our lawmakers for their concern and courage, it seems that they forgot that we are in Nigeria and the counsel of Niki Tobi- one of our good legal minds, scholar, a former Justice of the Supreme Court of Nigeria. In one of his numerous cases, he stated as follows: ‘’English is English; Nigerian is Nigerian. The English are English; so also, the Nigerians are Nigerians. Theirs are theirs. Ours are ours. Theirs are not ours; ours are not theirs”.
The above quote is at the heart of Nigeria’s development and growth crisis including PMB’s disregard of the House invitation. As expected, PMB’s refusal to attend to his summon and appear before our lawmakers has attracted many reactions. While the Attorney General and Minister of Justice, Abubakar Malami maintains that there is no provision in the law and constitution that mandates the PMB to appear when summoned, many including our very senior lawyers think otherwise. At the heart of the debate is our legal system and rather than focusing on the origin of our legal system to address our problems, we prefer to focus on the consequences of its ineffectiveness. Phrasing it in another way means that rather than focusing on the source of a problem, we prefer to focus on the outcomes of a flawed system.
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Studies from different parts of the world have proven that the effectiveness of a law (legal system) depends on the extent to which the law is understood, accepted, internalised to enhance compliance. Interestingly what makes a law effective (deep understanding, acceptance and internalisation) is when the law is amenable and drives its origin from the informal norms and values of the society. This suggests that there should be no break between formal law and the culture (norms and values) of the society.
What is therefore regarded as the formal laws (legal system) of a society are the documented informal laws (norms and values) of the society. This is where Nigeria missed it with our adopted and alien legal system from Britain. When a law is not properly understood, accepted and internalised, compliance expectedly will be low, and the law mainly used for instrumental purposes with its intrinsic value and use absent and unappreciated. Remarkably, this can be attributed to the origin of the law (legal system) particularly its formation and enforcement having limited link and origin from the informal laws (norms and values) of the society.
The legal system we are using for our formal governance is not properly understood, accepted and internalised and as such limited compliance and poor governance and development outcomes.
The above is the situation we have in Nigeria. Our laws (legal system) are not properly understood, not accepted and not internalised and as such, the very poor compliance we have. It is the reason why PMB’s non-compliance to the summon from the lower House is generating such much debate. Interestingly if PMB is summoned by Katsina Emirate Council, there will be no ambiguity about the power of the Council to summon him and his compliance will be undebatable. It is the same expectation of disregard or clarity and compliance if any governor is summoned by their State House of Assembly or foremost traditional ruler/council respectively. The deduction from the above is that the legal system we are using for our formal governance is not properly understood, accepted and internalised and as such limited compliance and poor governance and development outcomes. While some people will argue that there is nothing wrong with our formal legal system or its adoption, the best way to check if it is working is from key governance indicators such as rule of law, regulatory quality and government effectiveness. With the highest score that can be achieved being positive (+) 2.5 and the lowest negative (-) 2.5, Nigeria has since 1996 when the measurements started consistently achieved an average of negative (-) 1.2 for rule of law. It is the same bad outcome for regulatory quality and government effectiveness. While we scored on average about negative (-)0.80 for regulatory quality, it is about negative (-) 1.20 for government effectiveness. To buttress our precarious situation and bad performance, it might be helpful to better understand the meaning of rule of law, regulatory quality and government effectiveness.
According to the World Bank, while Rule of law reflects perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence; Regulatory quality reflects perceptions of the ability of the government to formulate and implement sound policies and regulations that permit and promote private sector development. For government effectiveness, it reflects perceptions of the quality of public services, the quality of the civil service and the degree of its independence from political pressures, the quality of policy formulation and implementation, and the credibility of the government’s commitment to such policies. It is the same poor outcomes for other indicators of good governance such as Voice and Accountability, Political Stability and Absence of Violence, and Control of Corruption.
If our poor outcomes have been consistent for over 24 years when the ranking started, there is no doubt that something is fundamentally wrong with our legal system, which is central to all the indicators. It is also the reason why insurance and mortgage penetrations are less than 2 percent respectively, our capital market shallow and only about 34 million Nigerians using the formal banking sector in a country of about 200 million people. As the effectiveness of a legal system can be ascertained from the extent to which the legal system is understood, accepted and internalized to engender compliance, our performance in the above key governance variables clearly shows that our adopted formal legal system is fundamentally flawed and unsuitable for our context.
It therefore suggests that our legal system requires fundamental rethinking and reform. A key aspect is the need for devolution of the Judiciary and deep recognition of the importance of synergy between informal norms and values and formal legal system. Each state or region need to rethink and reformulate the contents of their laws in line with their informal norms and values and allowed to have Appeal and Supreme Courts to handle matters in their states and regions. This will allow for better appreciation and application of laws to truly serve both instrument and intrinsic purposes to achieve a better-governed and inclusive society.
