Possibly disturbed by the suspension of Justice Onnoghen, the Chief Justice of Nigeria and the consequent crisis in our legal system, a group of senior lawyers generally referred to as Senior Advocates of Nigeria (SAN) emerged last week to help restore sanity to the system. Functioning under the aegis of The Justice Reform Project, they maintain that the bodies established to regulate and supervise the judiciary and the legal profession particularly the National Judicial Council (NJC) and the Nigeria Bar Association have failed. They premised their intervention on two main reasons: (i) “recognition that the events which have resulted in this debacle is in fact a manifestation of and response to a deeper malaise in the administration of justice and justice delivery in Nigeria; and (ii) a concern that the crisis of confidence that is currently shaking the judiciary and the legal profession in Nigeria is unprecedented”.
Seeking collaborations with other stakeholders, they are interested in the review and reform of certain critical aspects of our justice delivery system such as “The composition, constitution, functions and internal controls of the National Judicial Council; the process for the appointment, continuing education and promotion of judicial officers; the process for the discipline and regulation of judicial officers; judicial ethics, values and the relationship of the Bench with the Bar; the process and criteria for the conferment of the rank of Senior Advocate of Nigeria among others”. While their presumed genuine concern for the decadence of our legal system is most commendable, I am very concerned that they are missing the root cause of the problems in their salvific efforts. While they agree and lament that the whole legal system (both the bar and the bench) is in tatters, they seem to be more interested in addressing the symptoms and outcomes of a failed system rather than the main cause of the problem. The key question that they need to ask and answer is what makes a legal system effective and if our legal system has what it takes to be effective. The major intervention required from our senior advocates is how to make our legal system effective. A study of the legal systems in the world shows that effectiveness depends on the extent to which the law is understood, accepted and internalized, which then leads to compliance.
The understanding, acceptance, internalization, and willingness to comply with a law highly relate to the origin of the law. Before the emergence of nation-states like Nigeria, societies were governed by their respective values and norms (informal laws) 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 adopted as formal law or legal system. The undocumented ones became the 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 which serves both the instrumental and intrinsic needs of the society.
On the contrary, when a legal system is adopted with little or no origin from the norms and values of the society, it is limitedly understood, accepted, internalized or complied with. The legal system and the law will only be resorted to for instrumental purposes when the informal legal system cannot suffice. The situation is worse for a plural society like Nigeria with little and limited integration of the different sub-groups of the society. This is the main reason for the inherent crisis and failures of our judiciary and legal system. It is also the reason why Nigeria has consistently performed badly in the three key governance indicators –rule of law, regulatory quality and government effectiveness.
The ethnic groups that make up Nigeria are inclined and operate more from their respective tribal informal legal systems (customs, norms and values) which are different and most times at variance from our supposed formal national legal system ( mainly 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 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. Unfortunately, majority of Nigerians don’t believe in our formal legal system including many of our learned brethren. They only canvas for the use of the formal legal system or the primacy of rule of law as it places them in a vantage position as members of the legal profession with a better understanding of how the formal system can be utilized or exploited to achieve our and their own instrumental benefits.
As we derived our formal legal system from the United Kingdom, it might be helpful to understand how the effectiveness of a law can be deduced from its origin. “English legal development appears as a historical continuum. There is no obvious rupture, no wholesale wiping out of legal wisdom of centuries and no division of the law into a pre-and post-revolutionary era. In English law the present is never completely shut off from the past and its historical roots are easily perceived. Out of hard and bitter experience, Englishmen had come to learn that the remorseless, incalculable power of the past over the present was not to be dispelled by the strivings of a single generation. From 1660 onwards, England was never again entirely to forget that the secret of a nation’s strength is to have the power of the historic past behind it, not against it”, (Caenegem 1986: 158).
Can the same as above be said of our Nigerian legal system? If the same cannot be said of our legal system, I therefore implore our learned senior advocates to understand where the main problem resides and genuinely help to save our dear country. Corruption is perceived to be high in Nigeria because the formal governance system is regulated by a formal legal system that is not accepted or internalized. Governance including the legal system therefore suffers from problems of common resource and free rider due to its regulation by an ineffective legal system that many perceive as buyable and sellable. This is why unquestionable cases of corrupt enrichment and fraud normally degenerate to ethnic confrontations with the tribes of the concerned individuals emerging as unrepentant supporters of corruption with intriguing cries of ethnic persecution of their illustrious sons/daughters. On the contrary, a petty thief can easily be lynched within his village or tribe even on mere allegation. The reason is that the petty thief is abhorred under the properly accepted and internalized tribal legal system that forbids stealing whereas the embezzled public money is perceived as normal under the formal legal system that is limitedly or not accepted and internalized.
Unless the structure and contents of our legal system is reformed, no amount of cosmetic reforms as currently proposed by our senior advocates will be meaningful and sustainable. The reform in structure and content are inclined to the calls for total restructuring of the country. If we agree to restructure with consequent devolution of powers to regions, the suggestion will be to create two legal systems; a national legal system and a regional legal system. The national legal system and laws should develop through the collation and harmonization of similarities and differences in our respective informal legal systems on issues that will be controlled by the federal government such as national governance, foreign affairs, national security, revenue generation and sharing etc. The regional legal system and laws should be developed by the regions and dictated by their common values and norms and then used to moderate issues that will be allocated to the regions like development policies, infrastructure, family, revenue generation and distribution, education, health etc.
Preferably, each region should have its own supreme court and other lesser courts while the federal government can have only appeal/supreme courts to adjudicate on matters between the regions or between individuals/groups and regions. Allowing the regions to have their own supreme courts will not only expedite resolution of cases but will trigger a wider usage of the legal system by the citizens who will be aware and conversant with contents and procedures of the law which derive from their common norms and values. In this reform process, the contents of our current formal legal system adopted from Britain should be scrutinized to adopt only the elements that are amenable to our past, current and future values and norms, while our informal legal systems should also be discarded of practices and laws which we consider inappropriate and retrogressive.
Franklin Nnaemeka Ngwu (PhD)
Dr. Ngwu is a Senior Lecturer in Strategy, Corporate Governance and Risk Management, Lagos Business School and a Member, Expert Network, World Economic Forum.