Restructuring Nigeria: Start With Our Legal System (1)

With the increasing insecurity, poverty, in-equality, politics of exclusion, tribal, religious and economic crisis, it is becoming too apparent that we are heading to a disastrous direction if urgent steps especially the restructuring of the country is not undertaken. However, while key restructuring elements such as regionalism, devolution of powers, state police, revised revenue generation and sharing are very important, the most crucial factor upon which the restructuring depends and should start from is ignored. This is the reformulation or restructuring of our legal system. It is arguably the most important and the fulcrum upon which other mentioned issues depend. The reformulation I am referring to is not the kind of reform that is regularly mentioned anytime a new chief justice is appointed like reducing the length of time it takes to conclude a case. The version I am proposing is a total overhaul of our legal system both in terms of content and operational procedure. The reasons for this suggestion are many and include first, the meaning and importance of a law to a society. Second is the limited level of our economic development (sometimes underdevelopment). Third is our inherent and increasing socio-cultural/economic challenges manifesting in all kinds of governance crises.

Law is generally known as a set of rules or procedures that moderate or guide human behavior and interactions and it is useful or beneficial to any society when it is effective in reducing transaction costs and improving societal welfare. But the question is what makes a law to be effective? This is based on the extent to which the law is understood, accepted, internalized and complied with. Interestingly, this understanding, acceptance, internalization and willingness to comply with a law are highly related to the origin of the law. Before the emergence of nation states like Nigeria, societies were governed by their respective values and norms generally referred to as culture. At the emergence of nation states (sometimes through aggregation of different societies), some of these values and norms were documented and referred to as formal law or legal system. The remaining norms and values that were undocumented became known as informal laws. When a formal legal system emerges through this process, the understanding, acceptance, internalization and compliance are normally high due to its derivation and amenability with the inherent norms and values (culture) of the society. This process inculcates a kind of normative moral obligation on the citizens to comply with the law and societies whose legal system developed through this process have witnessed better economic development and governance systems. Good examples include UK, France, China and USA.

In the case of Nigeria and other developing countries, the opposite happened. At the creation of Nigeria in 1914, our past and history, our values and norms were rejected in preference to an alien legal system. Unfortunately at independence in 1960, instead of utilizing the golden opportunity to reverse the legal accident, we exacerbated the accident through the recognition and utilization of two legal system- customary (tribal) and the adopted English legal system but with superiority allocated to the latter. Moreover, elaborate socialization and integration of our over 250 ethnic groups that would have helped to dilute the differences were not carried out at independence. Expectedly, with this inappropriate juxtaposition of unrelated legal systems, a civil war broke out 6 years after independence and Nigeria has never known genuine consensus for national development and peaceful co-existence since then. But the question is why should it be so and especially why consensus economic development and peaceful co-existence have continued to elude us 105 years after the creation of Nigeria and 59 years after our independence?

The reason is that the different ethnic groups that make up Nigeria are inclined and operate from their respective tribal legal systems (norms and values) which are different from our supposed formal national legal system (the adopted English legal system). Law is an institution that stipulates the rules of the game which the individuals and groups use to achieve their interests (become wealthy, control or dominate governance, win an election, pass an exam, marry, fight a war etc). In this scenario, the wider usage or agreement to the law will depend upon the extent to which individuals and groups believe that their interests can be achieved within the legal system in question. However, as stated earlier, the general agreement to the law will depend on the origin and amenability of the law to norms and values of the concerned distinct society or societies.

As this is not the case with our formal national legal system, we, both as individuals and ethnic groups in Nigeria are under a kind of legal quagmire. Since we are born and brought up predominantly within our tribal values and norms, we are more inclined and entrenched in our tribal legal systems (norms and values). Incidentally, as the control of our national resources are moderated through our formal national legal system, differences and tensions emerge due to the differences in our tribal legal systems through which we draw our disposition and inspiration in engaging in national governance issues. This is also the case in our interaction with our fellow Nigerians from other tribes and as such the common views or sentiments like, he is a Yoruba man; what do you expect from an Igbo man; this Hausa-Fulani people, a typical Ijaw man; that is the way they behave, Tiv people eh! etc.

With the inherent confusions and contradictions of our legal system and the demands for each of us to comply with at least two legal systems (tribal and formal), our economic development is constrained due to the high transaction costs we encounter in our socio-economic engagements like marriage, buying a landed property and having access to finance etc. For instance, outside the lands controlled by state and federal governments, the predominant way through which we buy lands is through the tribal legal system (villagers). However, to ensure full ownership (certificate of ownership) or to use the land for any formal engagement like getting a loan, the owner will be made to undergo regularization process through the registration of the land within the formal legal system.

These inherent challenges in fulfilling all the requirements of both the tribal and formal legal systems limits property ownership in Nigeria and by extension limits access to finance which has remained a major constraint to 80% of our SMEs. It is also the reason why the formal banking sector has below 40 million account holders in a country of about 200 million people even with varied financial reforms over these years. This means that about 160 million Nigerians do not use the formal banking sector and have never been banked. The reason is that majority of Nigerians do not trust nor use the formal banking system because they do not understand and accept the formal legal system that regulate it. Addressing this legal challenge is the starting point for the success of our banking policies such as the current National Financial Inclusion Strategy. It is this contradiction and confusion of our legal system that we have continued to lag behind in most international measures of governance such as rule of law, regulatory quality, government effectiveness and ease of doing business.