The Relevance of Law in Building Societal Institutions.
KEY NOTE ADDRESS DELIVERED ON THE OCCASION OF THE IMMACULATE CONCEPTION OLD BOYS ASSOCIATION (ICCOBA) ANNUAL CONVENTION HELD AT THE NIGERIA AIRFORCE OFFICERS MESS, KOFO ABAYOMI STREET, VICTORIA ISLAND, LAGOS ON SATURDAY 10TH NOVEMBER, 2018.
MR. OLADIPO OKPESEYI, SAN, FCIArb (UK), FCTI, FNIM
Topic: The Relevance of Law in Building Societal Institutions.
1.1 The National President Engr. John Osa Omoregie, present and past members of the National Executive Committee, our Chief host, Osayaba Osarenren Esq, President of the Lagos branch, the Executives of our respective state branches and chapters here present, my elders a.k.a our ancestors, delegates from within and outside the country, entire members of our great association Immaculate Conception College Old Boys Association, distinguished ladies and gentlemen and gentlemen of the Press.
1.2 You are welcome to the 2018 Annual National Convention of our great Alma Mater and as a proud member of the Lagos Branch, I say you are all welcome to Lagos and I urge you all to please try to enjoy yourselves and relax know you are at home.
2.1 The topic for the year’s keynote address is “The Relevance of Law in Building Societal Institutions.” This is very apt considering the events of our nation today and there has never been a better time than this to agitate for and demand the enthronement and enforcement of the rule of law to avoid a descent into anarchy.
2.2 May I thank profusely the organizers of this event starting with The Lagos Branch President Osayaba Osarenren, Esq, the members of the executive and organizing committee to have singled me out of long list of possible keynote speaker for the 2018 ICCOBA Annual Conference.
It is therefore invitation to service and I take it as a rear honour and privilege to be invited.
3. Origin of Law:
3.1 Without being accused of religious bias, the first recorded incident of a codified set of laws is the Ten Commandments which according to the Bible were received by Moses in the desert to guide the Israelites in their daily social interactions. See the Book of Exodus where laws were directed by God to Moses to guide the interactions of the Israelites.
3.2 The Ten Commandments, which according to the Bible was given to Moses several thousands of years ago, though may have had its expression in religious values and practices of the Israelites as at then, are still relevant to our society today. It is pertinent and interesting to note that all the commandments have found expression in laws of nations on Earth. All other codes that regulate human interactions are directly as stated in or stem from the expansion of the Ten Commandments. (I will not bore you with analysis of legal codes that are directly from or were derived from the commandments).
3.3 Laws have therefore existed in the affairs of men at least since the time of Moses in codified form. Respectfully if we agree and adopt the theological postulations that God Almighty created the heavens and the earth and every other thing in it including you and I like I do, then permit me to go back to the beginning of creation when God decreed the heaven and earth into existence. He then planned for the creation of man, built a home for him at the Garden of Eden.before the creation of man in Genesis.
3.4 The very first law known to man from our strong biblical stand point which was not codified, was issued thus:-
“16…you may eat of fruit of any tree in the garden,17except the tree that gives knowledge of what is good and what is bad. You must not eat the fruit of that tree, if you do, you will die the same day.”
3.5 Deceit came, man disobeyed God. God granted them individually (Adam and Eve) fair hearing and pronounced judgment on them. We carry the burden of that judgment till today with room for atonement, repentance and forgiveness through Jesus Christ. It is from this point that society grew in number of humans and the need to regulate access to farmland, water, respect each other and interpersonal relationship generally. This was to check the principle of the survival of the fittest, as we read in the account of the unforced death of Abel.
3.6 God Almighty conducted the Second trial known to man when after inquiry or cross examination passed judgment on Cain. The organized society therefore, needs to have order, rules of engagement and put in check the domineering and territorial instinct of man that it provided for communal leaders who became the law and abused the leadership status. But God was still with man, hence the 10 Commandment released as Codified set of laws away from the rule by man.
4. What is the definition of law?
4.1 What then is law as we know it today? There are several but permit me to adopt and stick to the definition of Black’s Law Dictionary which defines law thus:-
(1) The regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system <respect and obey the law>. (2) The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of rules and standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them <the law of the land>.
4.2 Now that we know that laws do not operate in vacuo. It must have a community there are structures for its enactment, interpretation and enforcement. In all, our compliance and obedience is an essential and indispensible capital for effectiveness of law. Our attitude, comportment and faith in the system of laws or the legal system is what determines its effectiveness when applied to real human situations to enable it assist in development of the community, protect its weaker citizens, and allow every man to freely develop his or her God given potentials for the greater good of the community.
4.3 We have adopted the above definition for the purpose of this paper. But for better appreciation and understanding, let us have a peep into jurisprudence which is the study of legal philosophy. In this respect, there are several schools of thought or theories of law amongst them are Natural law, Historical, Sociological, utilitarian, Functional, Positivism and Realists schools of jurisprudence. The proponents of these theories of law are from different backgrounds, judges, clergymen, academics of different disciplines even beyond law.
4.4 While I do not wish to bore you with details of these schools of legal theories suffice to state here that no school of thought or jurisprudence or definition of law is universally acceptable. The centre of gravity of legal development lies not in legislation nor juristic science nor judicial decisions but society itself. In the making of laws, these theories are accommodated to allow for direct relevance to the people by admitting all shades of opinion. So the relevance of law must starts with, Law itself being an acceptable norm to a society before its application in building societal institutions.
5. Law as Set of Rules Guiding Human Interactions.
5.1 In any society where there are no laws that regulate human interactions, the society is doomed to anarchy, brutality and stunted growth.
5.2 One may ask why is it necessary to have rules and regulations which in simple terms are laws to govern human interactions? The answer lies in the very nature of man himself. Man by creation is domineering, conquering, acquisitory, expansionist, covetous and territorial to say the least. Again that may also find expression in relation to the Holy Book because the Bible says that God gave dominion to man over all things on earth- See the Book of Genesis.
5.3 Therefore, to keep this all conquering, dominating, acquisitory, expansionist and covetous being in check, God himself gave him set of rules to guide and regulate his activities in order to prevent total anarchy, preserve human race and indeed the earth. The said rules have sanctions applicable in default or disobedience.
5.4 It is in the light of this that every aspect of human existence have for thousands of years created legal codes to rein in man’s excesses in order to ensure development and advancement of the human race. There is no aspect of human social interaction that is not guided by law. Examples are environment matters, medical practices, science and technology, education, birth, death, corporate management, investments, taxation, family relationships, which in real terms relates to marriage, divorce, property ownership, gifts, inheritance, succession etc.
5.5 You name it and there is one aspect of law or the other that regulates it. It is noteworthy to state that mankind has through globalization and interaction among cities, states and nations made laws to govern and regulate interaction between cities, states, institutions and nations. A case in point is the United Nations, African Union, North Atlantic Treaty Organization (NATO), European Union, Economic Community of West African States (ECOWAS) and institutional organizations that have laid down rules of engagement the violation of which attracts sanctions.
5.6 Law therefore is a political theory that is universally accepted for application and usage in all societies, communities, clubs, nations, states, countries and comity of nation states, Nigeria inclusive.
6. REQUIREMENTS OF LAW IN ORDER TO BE EFFECTIVE IN BUILDING SOCIETAL INSTITUTIONS
6.1 Defined and Easily Discernable or understandable Rules
6.1.1 In any organization, institution or society, the rules upon which they plan to regulate inter human relationships must be clearly set out and easily understood by those who are meant to be governed by them. Hence, drafters of statutes or corporate codes or institutional rules always ensure that such rules are stated in clear and unambiguous terms in plain everyday language that anyone can easily read and understand as was Ten Commandments.
6.1.2 In most jurisdictions across the world, laws and regulations governing human interactions are posted at public places where such regulations are relevant for compliance. Common examples are “No smoking” signs in aircrafts, other signs in public parks, high ways, airports, seaports, factories and industrial premises, and other places where human interactions take place. In some cases they will quote the particular legal codes that prohibit an act and also state the penalties for such violations. Where there is high prevalence of multi lingual interactions such laws or rules are stated in the different languages prevalent in the environment.
6.1.3 The sum total of the requirement for law to be easily discernable and available is that no one needs a lawyer’s assistance to read and understand legal codes or rules which are meant to regulate his interaction at any given time or place.
6.2 Procedure for Compliance and Implementation
6.2.1 In certain aspects of human interactions, humans are expected to comply with laid down codes or rules which if not complied will lead to violations of such codes. The legal codes or rules must in such cases lay down the procedure to be followed in order to fully comply with the code.
6.2.2 Such compliance procedures are common in corporate governance, aviation, maritime, engineering and other businesses and activities which are regulated by government for sake of public protection and interest. The procedures necessary to comply with the relevant codes or rules must be well stated and defined to ensure easy compliance.
6.2.3 Thus where there are violations of such codes, there is usually no excuse on the part of the violators that will make them escape the sanctions that are associated with such infractions or failure to comply with the rules.
6.3.1 Perhaps, some people will ponder whether thousands of years ago when the instruments of state were not as developed and sophisticated as they are today; they were sanctions from infractions of societal rules and regulations. The answer is not farfetched. Yes, there were sanctions against violators. The Bible recounts an incident where a woman was to be stoned to death for adultery and Jesus rescued her.
6.3.2 There were many forms of enforcement ranging from the ancient Greek Practice of “Ostracismus” (which was imposed on an offender whereby he is banished from all communal activities and interactions) and that is the origin of the English word: “ostracise”; to cutting of limbs, blinding, imprisonment and in some cases death.
6.3.3 There are however occasions where people have questioned the extent to which sanctions can be imposed and enforced without bothering on the periphery of meanness or wickedness.
6.3.4 The answer lies in the mischief or problems the law is trying to solve. The severity of an offence demands equal severity of sanctions. The first known codes of sanctions that recommended cutting limbs, death to offenders and in some cases the families of the offenders themselves were made by Emperor Dracon, the first known codifier of laws in Ancient Athens, Greece. Thus laws which are very harsh and extremely punitive of offenders have over the centuries assumed the sobriquet “Draconian Laws.”
6.3.5 Thus, sanctions are usually in most cases related to events of times. Some of these are what one will call “wartime circumstances.” When a nation is at war, laws are made to impose heavy sanctions on the citizens. A corollary of that in our history is the imposition of serious and onerous conditions for bail against persons arrested for financial offences against the state by the Economic and Financial Crimes Commission (EFCC).
6.3.6 In the period when governors, legislatures, top government functionaries and high net worth individuals were arrested for financial crimes, the EFCC required Civil Servants of Directors Grade Levels to act as sureties in order to secure bail for accused persons. While this was an unusual request as at then, there was the need to have people of good standing in the society who had a lot to lose, in the event of the accuse jumping bail, to act as sureties for the accused persons.
6.4.1 When a set of rules and legal codes exist to regulate human interactions which have set out procedures for compliance and implementation, and have clearly defined sanctions in the event of violations, what therefore ensures compliance?
6.4.2 The answer to that is enforcement. In any society, institution or organization, where rules exists and there is evidence of violation of the rules, the appropriate authorities must always ensure that such infractions are punished with the full weight of the law or rules in accordance with the laid down sanctions without fear or fervor.
6.4.3 The strict enforcement of rules when violated is what set apart one society, institution or organization from the others. Researchers have shown and evidence abound, to prove that the decadence or otherwise of a society or institution is a direct corollary of the enforcement of its rules and regulations irrespective of who the violators are.
6.4.4 Thus, in a society, institution or organization where the rules are enforced selectively against offenders, the resultant effect is chaos, anarchy and under development.
6.4.5 This, today, is the bane of our society because of the ease with which certain persons who have assumed more importance that the entire society flout the laws of the land with impunity and nothing is done to enforce the rules against them. Their excesses become the norm in society and everything from the sublime to the downright absurd becomes the code upon which the system runs. The end result is a society where nothing works and underdevelopment thrives.
6.4.6 It therefore follows that, for any society to achieve its set goals and advance itself among the comity of nations, strict compliance with and enforcement of rules that regulate their human interactions is the fundamental principle that must guide it. Anything short of that leaves the society in abysmal level of development where life is meaningless, insecure and backward and diseases and civil strife thrive.
6.4.7 Most successful businesses are the ones where their corporate governance principles are set out and strictly enforced even against the highest ranking officers and directors of the organizations.
7. THE BASIC LAW IN NIGERIA
7.1 The 10 Commandment which is the basis of the Positivist theory of law being codified save for it been from God, got a great supporter in Hans Kelsen, an Austrian jurist and philosopher. In propounding his Kelsen’s Pure Theory of Law reiterated the positivist’s theory of law that “the concept of law has no moral connotations whatsoever”. This was because in the 20th century, the traditional legal philosophies were hopelessly contaminated with political ideology and moralizing.
7.2 So kelsen’s Pure Theory of Law takes into consideration only the norms created by the acts of human beings, not norms which come from super human authorities. Kelsen’s nature of law of legal order is not simply a system of coordinated norms of equal level but a hierarchy of legal norms of different levels.
7.3 At the very root of this hierarchy of legal norms is a grand unchallengeable norm against which every other law must test or seek its validity. This is what lawyers call the Grand Norm. In Kelsen’s view therefore, the grand norm in Nigeria of today is the Constitution. The political, sociological, historical, naturalist etc schools of thought may position this differently. But here and for the purpose of this paper, I am comfortable with Kelsen’s prescription-that Constitution is the grand norm in Nigeria. It is therefore the basic law against which all other laws must seek validity or be declared null and void to the extent of its inconsistency.
8. THE CONSTITUTION:
8.1 The 1999 Constitution declares itself the Supreme law in Nigeria via the provisions of Section 1(1) thereof, wherein it provides:-
“This constitution is supreme and its provisions shall have binding force on all authorizes and persons throughout the Federal Republic of Nigeria”.
8.2 The Constitution also went further to assert its supremacy over any other law as per provisions of Section 1 (3) thereof which states thus:-
“If any other law is inconsistent with the provisions of the constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency be void.”
8.3 The provisions of Section 1 (2) of the constitution left no one in doubt as to its central position or not just its relevance but the foundation upon which governance in Nigeria derives its validity wherein it provides thus:-
“The Federal Republic of Nigeria shall not be, nor shall any person or group of persons take control of the government of any part thereof, except in accordance with the provisions of this constitution.” Underlining mine.
9. THE POLITICAL STRUCTURE INSTITUTIONS:
9.1 We had told you in paragraph 4.2 that laws do not operate in vacuo. So a community must be created within which the law becomes applicable. The political structure for Nigeria was firmly established by the provisions of Sections 2 and 3 of the Constitution thus:-
“2. (1) Nigeria is one indivisible and indissoluble sovereign state to be known by the Name of the Federal Republic of Nigeria.
(2) Nigeria shall be a Federation consisting of states and a Federal Capital Territory.”
9.2 Save for the provisions of Section 3 (6) of the Constitution, the provisions of Sections 2 and 3 of the Constitution accord with the internationally accepted definition of a Federal System of Government, which is a system of government whereby entities such as States or Provinces or Regions by whatever name called, share power with the central government. Every Federation has its federating states on terms agreed and worked out with the representatives of federating States or Regions. Some of us, I inclusive, believe it is a misnormal to have local government as did in Section 3 (6) of the Constitution mentioned in this document.
9.3 The 1960 and 1963 Constitution was actually the negotiated foundation for Nigeria. The founding fathers recognized our diversity and agreed on the Principle of Unity in Diversity. At or even before independence, the architects of the new Nigeria realized the complexity of the country called Nigeria made up of several nation States, Kingdoms, Empires that were in existence as Sovereign States before the 1914 amalgamation of Northern and Southern protectorates to form Nigeria as it is today. The constitution therefore provided for amendment to the political structure as it were.
9.4 In 1963 by provisions in the Constitution, Midwest Region was created as the 4th region in Nigeria and by Plebesit of 1961; southern Cameroon was extracted from Nigeria and joined Cameroon. Other regions or states would have been created if the people or the military were only patient with the civilian political leaders. Whether rightly or wrongly, the Military intervention of 15th of January 1966 was the beginning of the derailment of efforts at building a nation state out of Nigeria. It is my submission that no proper considerations were ever again given to the creation of states in Nigeria like was done for the creation of the Midwest Region.
9.5 So the structural defects or unbalances in our institutions started from the hasty intervention of that time and remain with us till date. So, the Law making process suffered disequilibrium. Instead of Acts or Laws, it was decrees by one person by virtue of military command structure.
10. STRUCTURAL DEFECT OF OUR FEDERALISM
10.1 Talking of law; the Military suspended the constitution and did whatever was pleasing to it. By the Kelsen’s Pure Theory, the Decree was still a law and says what it promulgates. Since then the Federating states lost substantial authority, influence and revenue to the Federal Government. A few examples will suffice.
10.2 By virtue of 1960 and 1963 Constitution the federating Regions had the exclusive preserve to create local government council areas. The structure then was Region-Provinces-Divisions and they were also not source of revenue from the Federation account. The local governments as they are known today are creation of the constitution. This gives the Federal Government an unnecessary interference in the State administration by way of funding for local government councils and so on. This was why President Olusegun Obasanjo GCFR could interfere to withhold funds for Local Governments in Lagos State when it created additional local government councils now called Local Government Development Areas. The Supreme Court resolved the matter in favour of the Constitution.
10.3 The some of the other areas of loss of power by the states as federating units are in provisions of the constitution like Section 215 (a) and (b) which deals with the appointment of Inspector General of Police by the President and Commissioners of Police for the states appointed by The Police Service Commission. In reality, the states have no control over the Nigeria Police in spite of the fact that State Governors are called the Chief Security Officers of their state-See Sections 214-216.
10.4 National Judicial Council is another misnormal whereby the official of the central government appoint and discipline judicial officer who work for the states. This is to list a few. These are provisions that negate the Principle of Federalism and fiscal Federalism in terms of how resources are taken from the states and the distribution. This was imposed by the military and has continued till date and totally opposed to what was in 1960 and 1963 Constitution.
10.5 The second schedule to the constitution provides only for Exclusive and Concurrent Legislative lists. But students of legislative history, political science and law, will remember that there are normally three, namely; Exclusive, Concurrent and Residual legislative lists. The Exclusive is for matters exclusively within the legislative competence of the Federal Government. The Concurrent is matters upon which both Federal and State(s) can legislate, but if both now have legislations on the same matter on concurrent list, the Federal law prevails. The Residual Legislative list is for matters within the exclusive legislative competence of the State. Central or Federal Government cannot make laws on any matter on this list. The implication of the absence of Residual list is that the Federal Government can legislate on all matters save for judicial pronouncements like we have in the Town Planning case which Lagos State championed at the Supreme Court. The State Planning Approval not Federal Planning Approval is what is required to build in a state even on federal land.
10.6 The founding fathers would never have agreed to Land Use Act been made part of the Constitution of Nigeria nor allow every land in a state vested in the State Governor. By our history, land is attached to the people; acquisition, compensation, private development and use for public purpose are areas of the law that had been brought to its knees and consequently the people are excluded from development on their land like in the Niger-Delta region and oil and gas exploration.
11. THE ADMINISTRATIVE STRUCTURE OF NIGERIA:
11.1 Therefore, from the totality of the submissions thus far we have established that Law is the Foundation for Societal Institutions. Any institution that is unknown to the constitution in Nigeria has no legal basis for its existence. Sections 2 and 3 of the 1999 constitution as amended created the Federation, the States and Local Governments in Nigeria as we know them today for the good governance of The Federal Republic of Nigeria.
11.2 In Part II of the constitution particularly Sections 4, 5 and 6 created for us the Legislature, Executive and the Judiciary authorities or powers and made them the basic institutions of governance and ascribed to each of them, the extent or limit or scope of their powers. It follows therefore that, any exercise of power by any of these institutions not traceable to provisions of the 1999 constitution as amended is ultra vires their powers and to that extent null and void.
11.3 Sections 153-159 of the constitution are the foundation for the establishment of some federal agencies. It defines their compositions, functions and tenure. The 3rd schedule to the said constitution elaborates on the scope of authority of these institutions. Any law, made by the National Assembly not in accord with these provisions of the constitution for any of these institutions or provided for herein, shall to the extent of its consistency be void.
11.4 Sections 162-168 of the 1999 constitution provides for the revenue of the nation while Section 169 creates the civil service of the Federation.
11.5 The administrative institutions created by the Constitution are the structures of government that are in place to monitor, supervise and regulate other institutions in the country and or state.
12. STABILITY OF SOCIETAL INSTITUTIONS
12.1 The relevance of law to building Societal institutions is therefore that all societal institutions must be a creation of law or statue. If any is not, it cannot be funded from government revenue if it is public institution and for private, it would not even be licensed for operations in Nigeria. The law creating it must define its role, scope of its powers, the kind of personnel, and their remuneration and so on. Any institution that is not a creation of law, is an unconstitutional body and to that extent illegal, null and void of no legal consequence and or effect whatsoever and is liable to be abrogated and denied with any legal authority within the Federal Republic of Nigeria. It also cannot demand legal compliance from citizens of Nigeria, until it has a basis for its legal validity. Less than 2 weeks age the Court of Appeal held that a Presidential Asset Recovery Panel had no right to prosecute but investigate illegal asset acquisition.
12.2 We all appreciate that there are institutions particularly laws that existed before October 1, 1960 or precisely 1963 when the Federal Republic of Nigeria came into existence. The lawyers know these laws are what we call statutes of general application. These are 1900 statutes and beyond statutes applicable in England by extension were applicable in the Colonies and Commonwealth of Nations. These are Received Laws. We also have the Common Law which is a legal system based on decided cases over the years which are also applicable in Nigeria till date. But Nigeria as a republic without legal validity, these laws and practices will be dead laws.
12.3 Section 315 of the 1999 constitution provides a legal validity for all existing laws made before this 1999 constitution came into effect for such laws to have legal basis for application in Nigeria of today. It provides thus:-
“315(1) subject to the provisions of this constitution, an existing law shall have effect with such modification as may be necessary to bring it into with the provisions of this constitution and shall be deemed to be-
a) An Act of the National Assembly to the extent that it is a law with respect to any matter which the National Assembly is empowered by this constitution to make laws; and
b) A law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this constitution to make laws.”
12.4 The provisions of Section 315 confer validity on existing laws that have not been abrogated and provide to have their validity rooted in the Supreme law of the land. Section 316 grants to existing offices, authorities and institutions a legal validity by incorporating them by reference to the provisions of the constitution. It provides thus:-
“316(1) Any office, Court of law or authority which immediately before the date when this section comes into force was established and charged with any function by virtue of any other constitution or law shall be deemed to have been duly established and shall continue to be charged with such function until other provisions are made, as if the office, Court of law or authority was established and charged with the function by virtue of this constitution or in accordance with the provisions of law made thereunder.”
12.5 The above provisions of the 1999 constitution that is Sections 315 and 316, is to avoid a situation whereby an omission may occur and renders such body and or institution illegal and of no legal effect. Indeed if it is to avoid anarchy being foisted on the people when there is a change or transition from one system to another. It is called the doctrine of covering the field in legal drafting.
12.6 The law therefore ensures a situation where no functions, duties and operations of any societal institutions are disrupted as a result of changes in the law or constitution. This provision, indeed similar provisions are sustained in most new laws for the purpose of stability, continuity and sustaining the legal basis for the existence of societal institutions.
13. EFFECTIVE LAW AND THE PEOPLE