The judicial attitude to the interpretation of ouster clauses was one of mixed grill, ... the Federation has been greeted with mixed feelings, for instance whereas ...
The Journal of Jurisprudence and Contemporary Issues Vol. 9 No. 1, August 2017
LAW AND SOCIAL CHANGE IN NIGERIA by • Collins O. Chijioke * and Toby Boma Geoffrey** Abstract: The Nigerian Society has passed through different phases such as the pre-colonial era, the Colonial Era, the Military Era and what one can refer to as the era of democracy. All these stages have their attendant changes to the society; yet the yearning of the society for changes has not been satisfied. Change is an incident of existence and hence there is a continuous quest for better social; conditions and reforms. The Nigerian society in particular has over the years experienced and is still experiencing social changes. These changes are attributable to a number of factors. It is not an issue that can be viewed only from the perspective of social sciences. Law as an instrument of social changes has been pivotal in this regard. The work examines the role of law in nation building; taking into consideration the sociological theories of social change. It stresses in the final analysis that law is a necessary yardstick for measuring the extent and prospects of social change in any given society. KEYWORDS: Law, Society, Order, Social, Nigeria.
Introduction Sociological Theories of Social Change: The most popular theories associated with social change in the African countries are the modernization, dependency and the political economy theories. The stand of the modernization theory is illustrated as follows: - The poorer nations are following the same path as that taken by the industrial nation in becoming “modernized "from a traditional past. Ultimately they will display the same features of class structures" (Lloyd 1982-.57) * 1
In order words, the modernization theory stresses that for a developing society t o catch up with the developed societies they have to be integrated into the economics of t he developed countries. Their growth will depend on their extent of integration with the developed western economics. The basis of this theory lies in the assumption that "With the diffusion of modernization influences from the west, African societies would display similar features already exhibits by the developed economic during their transition to modernity" (Adebagbo et al, P. I) 2
World Proletariat (London, George Allen and Unwin, 1982). 2 S. A. Adegbagbo, (et al), Family and Social Change, (La gos, Irede Pri nters Limited, 2006). 137
This is a theory that learns towards western perspective and does as such r egar d anything to the contrary as irrational (Wilson: 1970) This theory no doubt, manifests some inherent defects such as:(a) . The fact that the theory is historical and Eurocentric in nature (b) . The theory has failed to cope with the problem of the under developing countries (c) . The theory has failed to solve the problems of poverty and income in qualities in the developing countries. (d) . The theory does not take into consideration the need for expansion of t he market and developing of forces of production. (e) . It undermines the historical background of the developing societies. Be that as it may, the result of the modernization ideology has been assessed based on what the developing countries have been able to copy from the developed nations. This is reflected in the metropolitan consumption items, construction of living apartments after the Western Housing styles, transport vehicles, number of schools, number of health institutions, the proliferation of the mass media and the intensity of consumption of Foreign produced goods like video tapes. (Adebagbo et al, P. 5). This affiliation to Western Civilization is reflected in series of economic ties under economic development organizations such as United Nations Conference on Trade and Development (UNCTAD) General Agreement on Tariffs and Trade (GATT), Committee on Economic Development etc. The modernization these can also be said to have failed to take care of flow of private capital and political risks associated with investment. According to Okolie; There is no reason to doubt that one of tile most serious impediments to the flow of private capital is the fear of investors that their investment will be exposed to political risks, such as outright expropriation without adequate compensation, governmental interference short of expropriation, which substantially deprives the investors of the control or the benefits of his investment, and non-observance by the host government of contractual undertakings on the basis of which the investment was made: (1979:191)
With this at the back of one's mind, it is difficulty to appreciate how a developing economy that is dependent on a developed economy would eventually grow to catch up with the latter. The dependence of the developing societies on the development count r ies is not beneficial only to the former but to the latter as well. For the socialist states, such economic dependence forms a counter balance to the infiltration of Western monopoly in the economy of the poor nations. Thus strengthening the socialist growing authority in the Planning economy. (Bogoushlavsky, 105) 3 It can however be conceded to the modernization thesis, that, economic and technical assistance from the developed countries to the developing countries present a form of aid to the former in their bid to better their lot to enable them achieve 3
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independence of the foreign economies. This at least accords with the aim of United Nations Conference on Trade and Development (UNCTAD). The Dependency Theory The dependency theory is authentically to the modernization theory. It d oes not accept the proposition that the development of societies should be based on a similar transition pattern as the developing societies; it is the view of the dependence t hesis t hat societies in the peripheral social formations and their local comprador bourgeoisie would never catch up with the developed economies of the world inasmuch as they remained incorporated into the world capitalist economy. (Adebagbo; 1). The theory also states that participation in the world economy generates underdevelopment rather than promotes development for the third world. Accor d ing t o this thesis, the solution to developing societies lies in withdrawal from the global capitalist economy instead of attachment to it. When one considers the fact that attachment to the Western economy is not all beneficial, especially in view of the exploitation tendency of capitalism, one would be bound to agree with this theory that developmental pro cess should be rooted in the people's traditional setting, as there is no universal path to development for all societies with different traditions. An instance of underdevelopment occasioned by over dependence on developed economy is the debt portfolio of the developing African Countries that are indebted to t he International Monetary Fund (IMF) and the World Bank. The conditions that are usually attached to such loans have the effect of crippling the economy and holding the people in perpetual boundage if not property managed. A development loan made by World Bank is never intended to finance the entire cost of a project but merely to cover the foreign exchange aspect i.e., the cost of imported goods and services, which normally cause balance of payment problems for member states (Okolie, P. 195) One must concede that the dependency theory has its own flaw; for instance, it is obvious that a total withdrawal from global capital economy is not the best option for social change; as no country can exist on its own without at least an interaction with another country. The problem therefore, is not dependence on developed economies but over dependence on them. In the words of Taylor (1979) 4 In analyzing third world societies the sociology of underdevelopment uses a unilineal determinism .... therefore the conclusion that underdevelopment will simply be alleviated by the removal of capitalist penetration cannot be established (97-98)
The thesis of dependency has also been criticized on the ground that it
4
J. G. Ta yl or, From Modernization to Modes of Production Critique of the Sociologies of Development and Underdevelopment, (London: The Ma cmillanPress Ltd, 1979). 139
"Devalues studies of local communities set in the zone of peripheral capitalism" (Peel,A)5
Peel (1983). Also posits that, The historical significant features of the contemporary third World are due to the character and extent of capitalism's penetration and that significant variations and relations between different areas of the periphery are due to differential penetration of capitalism (4)
There is no doubt that his expression is a truism and hence it can be said t hat t he extent of development in a rural set up depends on its exposure to the developed economies of the world. The Class Analysis Theory This is associated with some Marxist apologists, who posit that class analysis is relevant to the understanding of the social changes going on in the developing societies. It has been argued that the class concept being purely Eurocentric in nat ur e d oes not apply to African. Cohen (1974) 6 cited organized labor as an instance of a social class that demonstrates class action, but as for Eades‘(1980), 7 the class issue is relevant only where there is class consciousness. In the Marxist World, the social class is supposed to control and own the means of production; this obviously has not influenced social change in Nigeria. The class debate has not handled such social integration factors as gender, religion, ethnicity and race. These factors are affecting class consciousness. Like I said earlier, this work does not pretend to discuss in detail the sociological theories of change but paving had a glimpse of them, it will suffice to delve into, the examination of law as an instrument of social change, considering some of the areas where law has played vital roles in nation building. Reflection on the Meaning of Law The word "law" is so complex that its definition has been problematic and hence it has been variously defined. The task of defining law is an objective one in that so much depends on the perception of the person defining it. The varying definitions may either reflect the same underpinning or incompatible views. Lloyd reproduced Radcliff - Brown's definition of law as follows: -
Social control through the systematic application of the force of politically organized society (1985, 874) 8
5
6 7 8
J. D. Y. Peel , Ijeshas and Nigerian the Incorporation of a Yoruba Kingdom 1890s - 1970s, (London, The Ca mbridge University Press; 1983). R. Cohen, Labour and Politics in Nigeria, (London, Heinemann Press, 1974). J. S. Ea des, The Yoruba Today, (Ca mbri dge University, 1980). D. Ll oyd, a nd M. D. A. Freeman, Introduction to Jurisprudence, (London, Sweet 8i Ma xwell, 1985). 140
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For Kelsen (1945,19) 9 , law is the social technique, which consists in bringing about the destined social conduct of men through the threat of a measure of coercion, which is t o be applied in case of contrary conduct. These definitions manifest the elements of "Sanctions". If law is seen in t his light , then it will not be helpful to meet with societal yearnings for change. Law entails more than this. Elegido poses the following questions: How does the investigation of coercion help one to understand better issues like statutory interpretation, fundamental human rights, the rule of law, or law reform to name only a few? (1994,334) w.
Black's Law Dictionary (1990,884) * 11 defines law as Which is laid down, ordained or established. A rule or method according to which phenomena or actions co-exist or follow each other. Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority and having binding legal force.
The definition alludes to law as a method of ensuring social orderliness. Dir ect ly associating law with growth in the society, Professor Goodhard defines it as; the authoritative regulation so social relation. A rule of conduct which the existence of the society is based and violation of which, in consequence tends to invalidate the existence of the society
Similarly Paton, defined law as: A social process for settling disputes and ensuring an ordered existence of the community. It is not a stick body of rules but is rather an organic body of principles with inherent power of growth (Iheme, 7-8)n.
The sum total of the views of these definitions is that law ensures both orderliness and security in a society on one hand and on the other hand, causes a growth/changes in the society. Elegido's (1994: 337-338) itemization of the fundamental characteristics of law is very instructional to this work. He posited that:i. Law has peculiar value of advancing the common good of a community through the co-ordination of the activities of its members. ii. Central cases of law have the peculiar value that ensures that the exercise of authority minimizes arbitrariness and maximizes freedom of the member s of t he community. iii. It ensures that judicial decisions respect existing definite rules iv. Law is made by an authority, which has effective control in the community. v. It has standards, which regulate the social life of an independent political community vi. Law provides for sanctions and means of coercion.
9
H. Kel s en, General Theory of Law and State, (Ca mbri dge University Press, 1945). J. M. El egido, Jurisprudence, (Ibadan, Spectrum La w Publishing, 1994). 11 H. C. Bl a ck, Black's Law Dictionary, 6th Ed., St. Pa ul MN, West Publishing Co., 1990. 12 B. A. Iheme, Jurisprudence and Legal Theories, 2nd Ed.,(0werri : As umpta Pres s Ltd, 1994). 141 10
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These elements therefore, form the yardstick for measuring the extent to which law has effected social change in Nigeria. In doing this, one has look back to the past state of affairs in other to evaluate the present and assess the future. In the words of Puchta. "Law grows with the growth, and strengthens with the strength of the people and finally dies away as the nation loses its nationality" (Dias; P. 378)13.
Our Past and the Law The Nigerian society was already in existence before the advent of colonialism. The ethnicities forming the “political enclave today known as Nigeria were or ganized in accordance with the custom. For instance, in hegemony of political administration in Igbo Land was not one of aristocracy or monarchical government but one in which every ad ult male had a say in the affairs of the chiefless society. It was democracy in our own patter n. The colonialists met such indigenous industries as metal smelting; weaving, perfume making, cloth dying etc. the health institution predicated on herbal concoctions preexisted colonialism in Nigeria. The question, then is, how has law instigated a departure from or improvement on our inherited social norms? Although it is a general belief that the colonial ent er pr ise, which saw the scramble for, and partition of the African territories, were exploitative in nature. Germane as this view, one must not lose sight of the fact that colonialism changed the face of our society into westernization and modernization whether good or bad. Law was a virile tool in the hands of the colonial masters as they rushed out series of enactments and proclamations all in a bid to take over the African societies. The English jurisprudence, in a roguish fashion, eroded “our core customary laws and subjecte d whatever was left of it, to the repugnancy test. See Lewis v Bankole;u and Muojekwu v Ejiekeme15. Infact in the case of Joseph Ibidapo v Luthansa Airlines 16, the Supreme Court affirmed the observation of the Court of Appeal, that once an enactment is ext end ed t o a colony or protectorate by an order in council, that enactment to all intents and purposes becomes not only part and parcel of the law of the colony, but also self-executing and requires no further legislative act to implement it. The Move towards Constitutionalism The uttering of the indigenous legal system by the British Colonialists brought about a new legal jurisprudence which acted both as a tool of domination in the hand s of the colonialists and of fighting back in the hands of the African elites. The struggle for independence marked the beginning of the move towards constitutionalism. According to Professor Nwabueze; Government is universally accepted to be a necessity. Since man cannot fully realize himself, his creativity, his dignity and his whole personality - except within an ordered society. Yet the necessity for government creates its own problem for man, the problem of how to limit the arbitrariness inherent in government, and to ensure that its powers are to be used for the goods of society.
13
R. W. M. Di as, Jurisprudence, 5th Ed., (London, 1985). (1908) 1INCR 81. 15Mojekwu v Ejikeme (2001) 1CHR 179. 16Joseph Ibidapo v Lufthansa (1997) 4NWLR (Pt. 498) 124. 142 liLewis v Bankole
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It is this limiting of the arbitrariness of political power that is expressed in the concept of constitutionalism" (1973, l)17
The role of law as an instrument of curbing arbitrariness in society portr ays it as the foremost tool for fundamental change in society. In the words of Oye bode; ....the struggle for Nigeria's political independent was fought not in the bush or the hills the safety of conference halls both in Nigeria and England. Thus participation in the formulation of the legal blueprint for governance in postcolonial Nigeria signaled acceptance by all concerned that the law to play a preeminent role in shaping the nation's destiny (2005,16) w
Our journey to constitutional democracy from the colonial days to the present era can therefore be rightly described as a legal exercise. Whether Law in a Military Regime? Military dictatorship is no doubt an aberration to constitutional democr acy. It is rulership by coercion and with the aid of draconian decrees. The Nigerian example has created a feeling of extreme frustration and disillusionment in Nigerians against of successive military junta. The military did not stop at gagging the people, the press but all also the judiciary, which ought to be the last hope of the common man. The lat t er had t o suffer the excruciating restraint of the so called "ouster clauses" Ndoh, described the Nigerian Army as: an inherited force, a legacy of our colonial experience "(1997: P.l) 19. In other words the Military continues to represent the fetters of colonial domination trampling with ease on the people's right to government of their choice. It is on record that between 1960 and the 1999 witnesses eight military regimes, within which period the rule of law was crushed under their jackboot. According to Guobadia (1992, 66). The military have left their mark on the history of human rights in Nigeria. Their rule has been characterized by a litany of infractions of human rights provisions 20.
Law fearlessly challenged the authority of the gun and proved a virile counter force in fighting the Military regimes in Nigeria. For instance some of our judges thr ough judicial activism found ways of circumventing the ouster clauses. Some of the times the courts descended heavily on Military arbitrariness with condemnation as in much cases of Lakanmi and Kikelomo v AG (Western State) & Ors 21. In this case, the Supreme Court displayed great courage in challenging the claim of the military government to legislat ive competence.
17
B. O. Nwa bueze, Constitutionalism in the Emergent States, (London, C. Hurs t & Company, 1975). O. Aki n, Law and Nation Building in Nigeria: Selected Essays, (La gos, CEPAR, 2005). 19 A. C. Ndoh, ‘Ori gin and Development of the Ni gerian Army' Published i n the Military and Politics, 1, ed Emezi C. E. et a I, (Owerri: Achugo Publications, 1997). 20 A. Guobadia, 'Human Rights i n the Nigeria: A Historical Perspective', Published i n Perspectives on Human Rights, 66 edAwa U. Kalu et at, La gos , Federal Ministry of Justice. 21Ladanumi Kikelomo v AG West 1971) UILR 147. 18
143
The judicial attitude to the interpretation of ouster clauses was one of mixed grill, whereas in the case of Chin-Yao Ors v. Chief of Staff Supreme Headquarters 22, the court of Appeal expressed its helplessness in the face of an ouster clause, the reverse was the case in the case of Okudoh v COP 23. Thus a good number of the judicial decisions during the military marked a departure to hopeless surrender in the face of bullying ouster clauses. In such decisions, the courts refused to decline jurisdiction by mere existence of an ouster clause in a decree but rather considered whether the authority seeking to rely on such a clause complied with the provisions of the decree. See the case Imasun v ■Amusa,-24 Law versus Corruption Corruption is the hydra-headed monster that has sucked dry the Nigerian economy. It has become deeply rooted in the society to such an extent that it has attracted international notice. The existence of anti-graft legislations has not deterred the high level of corruption in Nigeria, which ranges from embezzlement of public fund, unlawful enrichment abuse of office to money laundering, to mention just a few. The problem of corruption in Nigeria is not due to the absence of the appropriate legal framework for tackling the problem but the implementation of the existing relevant laws. In Nigeria today, we have the Corrupt Practices and other Related Offences Act, 200025 , Money-Laundering (Prohibition) Act, 200326 , and Economic and Financial Crime Act, 2004s7 . The present reformation brought about the Economic and Financial Crime Commission which has given rise to the arrest and arraignment of suspected corrupt Governors and public office holders, is a fundamental change in our society towar d s t he fight against corruption, despite the criticism that the commission embarks on selective justice. The present attempt by the Federal Government of Nigeria to curtail t he powers of the Economic And Financial Commission through the office of the Attorney-General of the Federation has been greeted with mixed feelings, for instance whereas the former leader of the Bar, Chief O. C. J. Okocha hailed the decision, Chief Gani Fawehinmi is of the view that subjecting the right of the anti-graft authorities to prosecute their suspect s tot eh consent of the Attorney-General of the Federation would amount to placing the fate of the suspects in the hands of their accusers against the tenets of fair hearing. Vanguar d (2007: PP1 & 15)28 the important lesson from this argument is that the instrument of law is definitely a necessity to effecting changes in the society, afterwards, this country has never had it this good. In referring to the Corrupt Practices and Other Related Offences Act, 2000, Oyebode has this to say:
22Chim
- Yao & Ors v Chief of Staff, Supreme Headquarters, CAL/251/258 of 1/4/85 unreported, cited in 'Mi l estoneDecisions on Human Rights', Article by Epiphany Azinge Published in Perspectives on Human Rights. 23Okudoh v COP Sui t NO: M/32/84 deci ded 30/4/84 unreported. Hlmasun v. Amusa (1996) 8NWLR (Pt. 467) 459. 25 Corrupt Pra cti ces a nd other related Offences Act, 2000. 26 Economic a nd-Financial Cri me Commission Act, 2000. 27lbid. 28 Vanguard, Thurs day, 9th August, 2007,1 & 15. 144
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The clear focus demonstrated by the enactment on public probity and accountability has had a cathartic effect on the populace and sensitized the power elite on the need for transparence an d good governance. (2005:196).
Law and the Quest for Economic Prosperity Most capitalist oriented Governments like Nigeria have over the years made it their business to-be in business. There is mixed participations in some areas of t he St at e businesses, while, the state, in some other businesses enjoys monopoly that is hardly felt grass root o f the society. For ownership and control of all mineral resources in Nigeria is vested in the Federal Government by virtue of Section 44(3) of the 1999 Constitution 29 notwithstanding the fact that presently crude oil is exploited in the Niger Delt a and t he resources accounts for more than 25% of the nation's gross domestic profit (GDP), 95% of the nation's total export, over 80% of the Governments annual income and 70% of budgetary expenditure (Nick Ashiton-1 Jones; 1998) 30 . The Government has been able to contain the agitations on resource control through various legislations, such as the Petroleum Act, 1969 (now Cap 350 laws of the Federation Nigeria, 1990) 31 , Section 1 of the Land Use Act, 1978 32, Section 162(i) & (2) of the 1999 Constitution on revenue allocation and derivation principle etc. The change in the natural ownership of petroleum resources in the Niger Delta through the instrument of law was aptly captured by Akpezi Ogbuigwe (1999,15) 33 in the following words; The greatest injustice to the Delta people is the wrestling of the resources from them by the Government of the Federal Republic of Nigeria. . . . The Delta people woke up one morning in the late 50's to discover that their resources given to them by God for sustenance and self-fulfillment has been taken away from them . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .the Government through obnoxious laws took the resources away from them.
When the Government realized their ineptitude in managing the state businesses it resorted to privatization and deregulation of such businesses. See the Privatization and Commercialization Decree No. 25 of 1988 34 . What is more, the Government's quest to ensure national participation in the economy would have been an effort in futility but for the instrument of law; such as t he Nigerian Enterprises Promotion Decree No. 3 of 1977 35 . These decrees have been described as representing major landmarks in Nigeria's progress towards economic independence and..... how law can be used to foster economic development and promotion of indigenous control of the economy (Okolie: 1997). Section 44(3 ) of the 1999 Constitution of the Federal Republic of Nigeria. Ni ck As hton - Jones, 'The Human Ecosystems of the Niger Delta' An Environmental Right Action Handbook, Iba dan, 1998. 31 Petrol eum Act, 1969 (now Ca p 350 La ws of the Federation of Nigeria, 1990). 32Section 1, La nd Use Act, 1978. 29 30
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33
0. Akpezi, 'Offended Legal Issues in the Ni ger Delta Struggle', Port Harcourt Anpez Centre for Environment and Development Publications, 1999. 34 Protes tation and Commercialization Decree NO. 25 of 1988. 35 Ni gerian Enterprises Promotion Decree 1972 a s a mended in 1973, 1974 a nd 1976. 145
Law and the Family Structure The belief on our society that children are gifts from God subsists, but surprisingly child's rights are wantonly abused everywhere in the world. Such abuses include but not limited to sexual abuse, child labour, denial of education, child marriage etc. The history of child rights protection at the international level dated back t o t he end of the World ii (UNJCEF: 1996), when the United Nations, taking into consideration the scourge of the second World War on children established a body known as International Children Emergency Fund (ICEF) in 1946. In line with this development the determination of the Nigerian society to effect a change to the absurdity, that is, child's rights abuses has given rise to its taking the bull by the horn with the aid of statutory enactments. If chapter four of the 1999 constitution of the Federal Republic of Nigeria, especially Sections 33, 34 and 35 have not specifically mentioned the Nigerian Child as a benefactor of the rights stipulated in the said Sections, the Justice system has as much as marked out the rights of the Nigeria child most vividly in the legal instrument of the Nigerian Child's Right Act, (Cap C50) of the laws of the Federation o f Nigeria, 2006. Preamble to this Act reads: "An Act to provide and protect the right of the Nigerian child and other related matters".
It is believed has been able to handle the sociological pathology of child lessness through the instrument of "adoption". In the time past, the average African family t ook pride in the number of its human resources while the childless lived* in the pain of t heir predicament. Social changes through the legal process of adoption has given rise to a rapid erosion of the said customary norms. An adopted child enjoys the rights of a natural child of the parents. Through adoption laws abandoned children can be integrated into families and made to enjoy their inalienable rights, t
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Conclusion Although, there are so many areas of challenges in our society that require changes through legal instrument, such as the electoral process, regulation of the trade unionism, environmental resurgence etc. be that as it may, the posit of scholars in the philosophy of law that law holds society together and that through law order, peace, tranquility, meaningful growth and development is achieved has proved to be correct in view of the virile role of law in effecting changes in the society.
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