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The Failure of the Colonial Legal System in Nigeria. A Rhapsodic Passacaglia on a Legal Theme.


By: Professor Dr. Emmanuel Omoh Esiemokhai
 Published October 12th, 2011

Recent unbecoming developments in the Nigerian judiciary have proved me right in my long contempt for the British Colonial legal system that was foisted on Nigeria by British colonial authorities, in order to facilitate colonial administration between 1863 and 1960.

The dominant legacy of British colonial rule in Nigeria is the colonial legal heritage. In my book entitled, “The Colonial Legal Heritage in Nigeria”, I discussed the impact of the colonial legal system on the political, economic and cultural development of Nigeria.

The impact is still there, but the failures of the imposed constitutional prescriptions have weakened its authority as we continue to look for solutions to the myriad of our societal development.

In the book, I identified three types of Nigerian lawyers. The first group is those who are in legal practice to make money. The second are those, who practice with a social conscience and the third are those, who want to use law to effect social change. The late Gani Fawehinmi and I discussed this observation, when he visited our Faculty of Law at OAU, Ife. OAU students conferred on him, the title of the Senior Advocate of the Masses.

The Lagos colony was the hub of British colonial trade because of its harbour. Sir Taubman Goldie’sRoyal Niger Company was both an economic and political organization, which was efficiently administered by the British military genius and colonial administrator, Lord Fredrick Lugard.

In 1895-6, Colonialist Britain passed the Foreign Jurisdiction Act, which was made to operate with full force in British India, Nigeria and other British colonies.

Britain ensured that her colonial administrators were well versed in military intelligence, diplomacy and statecraft. By 1960, the British colonial legal system had take firm root in Nigeria. Even after Nigerian independence in 1960, Britain insisted that its highly trained Nigerian British lawyers occupied strategic judicial offices.

However, the British political order was rejected by Nigerians, who do not have the culture of democratic haggling, literary argumentations and verbal disputations, which are regarded as disrespectful by feudal and aristocratic political despot.

The wrenching political system between 1960 and 1966, created a disruptive social order, which the military overthrew.

As I said above,the British legal system was championed by Nigerian jurists, who were mentored and nurtured in the best British universities and the Inns of Courts.

One of the most distinguished of them was Professor Dr. Taslim O. Elias, who became the Attorney-General and later, the Chief Justice of Nigeria. He was removed from office by General Murtala Mohammed, as a result of a slight indiscretion of criticizing the Soviet legal system.

On November 19, 1974, the Soviet Minister of Justice, Comrade Tiribilov was discourteously criticized by Chief Justice, Taslim Elias, who told Tiribilov that British and Nigerian law degrees were better than Soviet law degrees.

There was clearly an ideological dimension in the Chief Justice’s contention. He apparently did not acquaint himself with the Soviet legal system, which was based on the Continental legal system and the five legal systems of the world including the British Common Law.

In an article in the Sunday Times of November 24, 1974, I stated “The merits of Soviet Law degrees” and went to the Supreme Court to personally deliver a hard copy to the Chief Justice, Dr T.O Elias, fo the day. He was stunned. I had written courteously, but didactically.

During our discussions, I discovered that he probably had not acquainted himself with the Soviet Legal system.

This probably led him to make the wrong assertion about the Soviet legal system.

The merit in studying various legal systems is that the lawyer acquaints himself or herself with the inherent disadvantages in looking at law from a narrow perspective. The inherent advantage is that one benefits from a wide spectrum of legal reasoning and experience. The rigour of learning foreign languages, open the world of legal literature and culture. You also get well-paid in foreign currency!

The story of the six blind men of Kurdistan is helpful here. They described the elephant based on the part of the elephant they touched. Dr T.O.Elias framed his legal world-view from his copious studies in Common Law and British jurisprudence from the best British Law Schools.

Elias was most eminently qualified in British Common Law and could have served creditably as the Chief Justice of England.

Dr. Elias had canvassed against Nigerians, who had studied law in the then Soviet Union, preventing them from going to the Nigerian Law School in order to practice law until General Olusegun Obasanjo over-ruled him, while Obasanjo was Military Head of State.

It is interesting to point out that after 12 Soviet trained lawyers took their Bar examinations and the results had been released, Dr. Elias hurriedly came from The Hague to Lagos and told airport reporters that nine of them had failed, two had resits and that only one of them had passed!

The following day, the Director of the Nigerian Law School, Mr. Ibironke,corrected Dr.T.O Elias, by saying that he did not know, where Justice Elias got his facts from. that nine of them passed, two had resists and one failed.

Dr. Elias later studied the other four legal systems of the world, including the Soviet Legal system at The Hague International Court of Justice, where he rose to be the Court’s President.

Since then, some of the Soviet trained lawyers have done very well, in legal practice and in Academia.

One of them became a Senator of the Federal Republic of Nigeria, another became the deputy Comptroller-General of Nigerian Customs, and some are erudite practicing lawyers in Nigerian courts. Many became Professors of Law in Nigerian and foreign Universities.

Had General Olusegun Obasanjo not intervened to allow those Nigerians to go to the Nigeria Law School, their valuable contributions to the Universe of Man would have been lost.

Some Soviet trained lawyers attacked the Chief Justice, after he tried to denigrate what they labouriously learnt, using the Russian language. Some newspapers like The Tribune fully supported the Soviet trained lawyers.Chief Obafemi Awolowo also did. So did Justice Akinola Aguda and many Nigerian jurists.

Other thorough-bred British trained lawyers were Hon. Richard Akinjide, who became the Attorney-General of Nigeria. Others like Nnaemeka Agu, Learned Chukwudifu Oputa and Anthony Aniagolu. Many other distinguished British trained Nigerian lawyers became Supreme Court Justices.

After retirement, many of these British trained justices served in strategic positions, where they promoted British culture and societal values.Five of them were at the beck and call of various military and civilian governments.

They returned anticipated verdicts which supported government maladministration. One of them was the late Justice Anthony Aniagolu, who served as the Pro-Chancellor of the Obafemi Awolowo University. He turned the University Council into the “Court of Star Chamber” colluding with Vice Chancellor, Wale Omole to dismiss radical, patriotic Student Union Activists and “Aluta Lecturers,” who opposed the blatant corruption that was prevalent in the administration of the University, under Wale Omole. Both were ignominiously removed from office by Chief Olusegun Obasanjo. They both left under a cloud.

There was the group of British educated Nigerian Law University professors, who tried successfully to teach law from the narrow perspective of British Common Law.

The one at Ife became a professor of a subject he did not study at his University. He became a SAN, with no record of court advocacy, or books publication! He also became “Emeritus Professor! How lucky can a guy be?

We may call him Goodluck IJALAYE! You can check this out! The doors of the courts are open. The TRUTH shall set us free!

Vice Chancellor, Professor Roger Makanjuola, who initially did not believe the (Ija wonder) facts, had to adjust his psycho-galvanic reflexes, when the documented presentation on Goodluck Ijalaye that went to the President, hit the OAU Campus.

The OMOWA pervasive ideology that is responsible for manifold cover-ups at Ife could not prevail!( IFE REMINISCENCES), 2010.

Eminent and learned Nigerian jurists and others, who held high office, successfully laid the foundation of Nigeria’s bourgeois legal and societal order in Nigeria.

It is very difficult to understand and grapple with our present condition, without apprehending the depth of the wrongs that happened in the past, to the state and individuals.

I donor subscribe to the idiotic idea that one should not speak about the dead or the living dead. If one knows that “the evil that men do lives after them”, perhaps, .men and women will be more cautious about inflicting pain on others. This the idea William Shakespeare was propagating.

We must always remember the Supreme injunction that the wicked shall never go unpunished. The Law of KARMA is real. In every state, where there is the absence of GOD, there will be the absence of good. In those states where satan has deceived the leaders to exclude GOD from national life, the winds, thunder, rains speak warnings of harsh things to come.

The practice of mounting the rostrum after every breaking news using serpentine tongues to tell other nations how to run their internal affairs is both insulting and ill-advised.

Criticisms of the Nigerian Judiciary

The syndrome of “cash and carry” judges was as a result of their poor salaries between 1980-2001. Even the former Chief Justice of the Federation, Justice Mohammed Uwais was constrained to complain about his parlous salary.

The statement credited to a CPC chieftain seems too sweeping to be appropriate. He is reported to have been disrespectful to the Presidential Election Tribunal trying the CPC suit against the PDP.

The earlier narration of the actions by Justice Elias against Soviet trained lawyers does not detract from my admiration of his erudition and his prolific writings in the field of law. However, the truth must be told, even if the heavens fall!

Justitia nemenem excusat! In Nigeria, the “BIG MAN” foolishness, which Professor Maurice Iwu, the former INEC Chairman, depicted and condemned in his speech at the Yar’adua Center, sometime ago must be attacked, since it creates the spirit of cowardice and unearned reverence in our people.

Also, the “former this and that” appellations also create a myth of adoration, even where the “former this or that” person was a thief, incompetent and thoroughly a discredited persona. Why are our citizens so subservient, gullible and unthinking? Why?

On September 6, 2011, it was announced the three ex-Governors had been arrested by the EFCC, for stealing billions of the peoples’ money. This has re-kindled faith in the rule of law in Nigeria. The question is will there be endless delays in their prosecution or will justice prevail?

There is a despicable habit in Nigeria, whereby favour-seeking public announcers extol the virtues of poor leaders, corrupt leaders, criminals and people, who practiced spiritual wickedness from high and low places, while in office, by announcing the presence of former “leaders” at public gatherings!

The failure of the British legal order can be explained by the fact that it is an alien legal system, which had ceased to be very relevant in regulating post-colonial, socio-economic relations in a state with religious and nation-state cleavages and a poor culture of political determinism. The Common law as practiced in Nigeria is a respecter of persons. In Europe and America, it is not.

Recently, it has been discovered that the courts have proved incapable of dealing with cases, which concern those deemed “important persons “or those, who threaten the state.

This violates the principle of equality before the law and that no-one is above the law. In England, those, who act with impunity, are called to defend their actions. The politicization of the Nigerian judiciary is the beginning of the weakening of the state’s sovereign authority.

Unfortunately, unlike India, which has moved away from the British legal system and had established a social justice system, which has visibly propelled India to gain acceleration in the right direction, a Nigerian jurisprudence has not yet emerged. The Nigerian Constitution contains social justice principles but these social justice proclamations are not justiciable but are hortatory in nature.

The system of judicial precedents, in which Supreme Court decisions are regarded as sacrosanct, immutable and binding in judicial proceedings, has stultified the development of legal thought and has handcuffed the French Code Civil admission of robust advocacy, instead of upholding for all times, the principle of stare decisis.

The Nigerian Criminal Procedure Ordinance, No 2 of 1945, has governed the law of criminal procedure in Nigeria for too long. . This later became the Criminal Procedure Act.

Although the then Premier of the North caused some amendments to be made, which were passed into law in July 1960 and entered into force on October in 1960 in Northern Nigeria It is remarkable that when the Laws of the Federation were enacted in 2004, the only provision that was changed in the Laws of the Federation, 2004, was Chapter 41. The British Company Laws of 1948 was almost reproduced verbatim in the Nigerian Company Law of 1968.

Nigeria has enacted many Constitutions, which were soon discarded because they could not effectively regulate the socio-economic requirements and societal aspirations of the Nigerian state and its people.

The question has not been answered whether Nigeria is a Federal state or whether it has grown into a Confederal state?

Political pluralism must respond to the dictates of law, its state structure, its political economy and financial system.

The most critical problem of governance in Nigeria, is the inability of Nigerian law to punish or acquit without the big man factor, overt or covert influences from power brokers, lawyers manipulations and the role of judges whose hands are Naira-tied or who perform setting their eyes on the higher bench.

Studies that cannot be published contain sordid events and actions about the Nigerian judicial practice, which is beyond pardon.

One must applaud the courage of the Chairman of EFCC, my learned friend, the real Justice Farida Waziri. She has demonstrated strong commitment to upholding the rule of law in Nigeria.

I would like to ask Farida how a Governor alone can steal so much money without the collusion, collaboration or condonation by the Finance Officials in the Ministry. There is need to dig deeper into the magical conjuration that enables Governors to steal over a long period of time.

It is time for us to make strong and constructive suggestions under cover. We should be respectfully invited to make these constructive and well-informed inputs.

Law enforcement is hampered by the character of the officials charged with investigations, documentation and preservation of records. Also, delay defeats equity and justice delayed is justice denied. A man should not be falsely accused and he does not get a fair chance to clear his name.

We live a Republic, in which political battles can be murky and wicked. It is very important for thr courts to punish or acquit without the prevailing practice of using complaints as instruments of extortion, intimidation, disorientation, leading to heart failure as a result of the sword of judicial Damocles.

Anyone, who is wrongly prosecuted for crimes he did not commit should sue his tormentors, obtain reparation and rehabilitation. This is justice in motion.

How Governors, who swore to serve the people now engage in robbing the people is a reprehensible, devilish act warped in an enigma.

When I taught International Law at Shandong University of Science and Technology in Qingdao, China, I witnessed how the Chinese state dealt with highly placed officials, who stole state property.

For example, the Secretary of the Shanghai Communist party was executed for embezzlement. I woke up to read the banner headline

In my hotel room in Shanghai.

It is very re-assuring to learn that President Goodluck Jonathan did not obstruct the EFCC from their lawful duties. I will visit Aso Rock to give him a high five!!!

President Jonathan should fervently distance himself from benighted gubernatorial cheats and cultic, old political witches.

I am disappointed that Zik’s resting place has remained negligently uncompleted, after the contract had been awarded.

Encounter with Lord Denning and the Birth of the IFE Radical Legal School.

In a memorable encounter with the British legal icon, Lord Denning of blessed memory in Lagos in 1975, I raised some thorny legal issues with Lord Denning. In concluding what was a marathon lecture, Lord Denning said that he was very happy that the British legal traditions have been well preserved in Nigeria.

I was cut to the quick. I asked Lord Denning when we could develop our own legal system, if we continued to preserve British legal traditions in Nigeria.

Lord Denning was also cut to the quick. He delivered a persuasive response. He pointed out that the Normans, after invading England in 1066, imposed a Common Law on England, but that through imaginative and innovative legal engineering, the English re-jigged the Norman-imposed legal order.

The legal institution of Equity was introduced to alleviate the harshness of some Common law norms.

I recall that after the Americans became independent, they restricted the use of British precedents that militated against the sovereign, independent status of the newly independent American state.

Also, China abolished those Anglo-French colonial laws after it proclaimed its independence on October 1 1949, a factor that has accelerated the phenomenal development of China.

The functions of law are to act as instruments of social engineering, social regulation and social change. Under British colonialism, law was an instrument of legal control, legal manipulation and legal punishment of those, who challenged the colonial system.

This was why many notable Nigerian leaders and other patriotic leaders in British colonies were jailed, some many times. Kenya, Ghana, Nigeria, British India, afford copious evidence about this phenomenon.

Until today, our police laws and military ethics still reflect the colonial punitive way of dealing with political mal-contents. The surveillance system and marking down potential “trouble-makers”still form the system of law enforcement in post-colonial African states.

In 1986, I started the Radical Legal School at the University of Ife( now Obafemi Awolowo University) I taught law from a multi-disciplinary perspective, which embraced Roman Law, Das Bundesgesetz Buch, French, Code Civil, the Anglo-American, Soviet and Grotian legal order.

Some of my former law students, who now practice law in Euro-American states, attest to the usefulness of the Radical Legal School ideology and the inherent advantage of the legal diversity they imbibed.

While Nigerian University Law Schools offer very limited law subjects, law schools in Europe and America offer a wide variety of over ninety legal courses. While foreign law schools accept only dissertations for the Master’s degree, some of the older law schools in Nigeria, accept long essays. Whether it is long or short, an essay is an essay.

When I was teaching at the University of Michigan, USA,two Nigerian law students, who had applied to do their PhD, were not allowed but were told that they had to do a one-year remedial course before they could proceed.

I know some of my former law students, who have now become SANs, based upon the number cases they have handled at both the Courts of Appeal and the Supreme Court of Nigeria.

The advocacy in Nigerian courts takes the routine form of, in many cases, challenging the jurisdiction of the court handling the case. Then, this is followed by adjournments without end. Some lawyer’s ability to “liaise” with the judges is very important in obtaining, in some cases, a favourable decision for their clients.

Some lawyers, who lose cases at lower courts drag cases to the Courts of Appeal and the Supreme Courts, in order to qualify to apply for SAN!

Perhaps, the most lucrative legal practices today is to defend politicians, who rightly or wrong were deemed elected. Since the legal fees are straight from the treasury, the fees are usually on the high side.

I followed, very objectively, the Buhari Vs Yar’ adua case in Abuja. It was a masterpiece of judicial double speaks!

According to the CPC, the same game is about to be re-played. The party has dragged the PDP and the INEC Chairman to the Supreme Court.

The Party is seeking an order setting aside the decision of the Court of Appeal (Presidential Election Petition Tribunal) Abuja, delivered on September 28, 2011. “An order dismissing the motion filed by the 1st, 2nd, 6th-42nd respondents on 22nd September, 2011.”

“ An order invoking Section 22 of the Supreme Court Act 2004 and ordering the Court to compel the attendance of the INEC Chairman, the 1st respondent to attend court and produce all relevant documents. For example, National Biometric Data Bank, Forms EC BA, EC8A, EC 8B and Ec8C, which were used for the disputed April Presidential poll.

The Salami case was a classical political intervention in judicial matters, making nonsense of the doctrine of the separation of powers. It is very disturbing to note that in the last three general elections, especially the presidential elections, it is by the verdict of the Supreme Court that our presidents have been declared winners. This is obviously anomalous.

In Nigeria, the rule of man seem predominant. The rule of law often takes a back seat.

Recently, the whole world witnessed how the Italian justice system acquitted Amanda Knox and Rafael, her former boy-friend of a murder charge based on the fact that the evidence was tainted.

In Nigeria, the “BIG MAN” influence, party affiliation, obstruct the cause of justice. Even in the face of clear evidence of criminal conduct, some compatriots are openly celebrated in newspapers advertorials. This is a mockery of the rule of law. The rule of law and the rule by man seem hard to reconcile.

Nigerians seem to forget that you may bully your way out of facing criminal conduct today, but history will document your ignoble acts of criminal conduct.

A comprehensive review of celebrated cases, which have been tried in Nigeria, shows that the “powerful people” have seldom been found guilty. This has fuelled the culture of impunity.

With regard to the issue of SANs, in most states, you do not apply to be made a SAN. Just like in the case of the Nobel Prize, your brilliance will bring you out. To be a Queen’s Counsel in England is based on rigorous academic and superior advocacy credentials. What do Nigerians not bastardize?

Any critical observer will hold that in Nigeria, there are courts of law and not strictly, courts of justice. The policy, whereby the President of Nigeria appoints the Chief Justice of Nigeria, may need to be reviewed, so that the principle of the separation of powers enjoy a modicum of credibility and rebut the maxim of whoever pays the piper dictates the tune.

The problem of judicial intervention in democratic governance has remained controversial. Electoral disputes have often led to political crisis. Chief S.L. Akintola went to court over his dismissal, which sparked wide spread riots in the then Western Nigeria.

The FEDECO decision that Alhaji Shehu Shagari won the the 1979 Federal Presidential elections was the subject of a Supreme Court intervention. The decision weakened Shagari’s authority to govern. He was later overthrown by General Muhammadu Buhari, who too, was overthrown by General Ibrahim Babangida.

Chief Olusegun Obasanjo, Alhaji Musa Yar’adua and now Goodluck Jonathan, all of the PDP, have been challenged in the higher courts for disputed outcomes of various elections.

There is this nagging feeling that we have not yet developed the political culture of organizing free and fair elections if Chief Justices, who are appointed by Presidents determine, who rules Nigeria.

The internecine wars over elections are unfortunately not matched by performance. The quality of altruism is poor and at the end of four years or eight years, there is always very little to show for it.

Recently, President Goodluck Jonathan was reported to have said that “our system has collapsed”. No, there has not been a system!

There have been grandiloquent bombasts, promises to bring down the moon, the sun and the galaxies tomorrow! One does not need to be a Lai Mohammed or a Mohammed Garuba to understand that we are going nowhere slowly and that, at the present speed, we cannot transform the nation until the Second Coming of Christ Jesus.

A government of speech-writers, speech-readers and speech-hears cannot form the necessary consensus for state transformation but national planners, thinkers and knowledgeable, compatriots can.

A state run by gubernatorial frauds cannot transform our state.

British Conservatives are undertaking a review of their anti-immigration policy and a strident attack on the Humans Rights Act. The European Convention on Human Rights has become so well-entrenched in European legal order that it cannot be “shaken by a side wind” Lord Denning.

British politics must not forget the role of the immigrants in post-war British re-construction.

The Liberal Democrats may tacitly disagree with the Secretary of Internal Affairs and could disapprove of the Conservatives using the last unsavoury acts of miscreants to call the European Convention on Human Rights into derisive contempt.

Britain is very well-known for its respect of human rights and compliance with European laws and International Laws.

Article 6 of the Draft Declaration on Rights and Duties of States, it is clearly stated that ‘ Every state has the duty to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms, without distinction as to race, sex, language or religion.

Also, Article 13 says that “Every state has the duty to carry out in good faith its obligations arising from treaties and other sources of International Law and it may not invoke provisions in its Constitution or its laws as excuse for failure to perform this duty.

Therefore, the pronouncements of Mrs. Theresa May, the British Secretary of Internal Affairs, seem to have overlooked these human rights provisions in the Charter of the United Nations and the European Convention of Human Rights.

New Definition of Democracy

At various times in human history, new developments occasion new thinking. The current world-wide rebellion against state structures are more profound that rebellion against leaders or governments.It is against systems of government.

Before now, people with capital built enterprises, recruited men and women to work for them. They strengthened their authority by setting up political institutions through which they make laws. Their university ideologues propagate the doctrine of separation of powers to create the impression that the executive, the judiciary and the legislature act independently. This is not always so.

The system of shareholding is an attempt to involve some people in sharing the dividends of private enterprise. Corporate laws have kept the capitalist system buoyant for centuries in Europe and America,

In the last twenty years, however, rapid economic growth in China, India, Brazil, South Africa and other emerging economies turned the tide against Euro-American economic growth.

Under the double impact of wars in various parts of the world and the need to confront communism and Al Qaeda, a lot of needed financial resources were plunged into these campaigns. The US had borrowed an awful lot of money, in oder to stabilize its economy. The Bush administration was profligate and the Obama administration is finding it difficult to mend an economy in recession.

As a result, many Americans have been out of work. Taking a cue from the struggles for democracy and the peoples’ empowerment in the Middle East and North Africa, many American have embarked on wide-spread demonstrations. Greece and some European states too.

The new definition of democracy in this epoch is the government of real, organized people for the people, by the people. Governments by the Chambers of Commerce and political parties, no longer serve the interest of the real people.

Corporate laws only serve to entrench monopolies and oligopolies. Since the dawn of the cosmos, the Ten Commandments have been ordained. Some states decided to reject God. So, God has turned his back on such states and water, air, thunder, rain, wind and the elements are now opposing them.

Professor Dr. Emmanuel Omoh Esiemokhai, a Writer and Academic, is the Academic Chancellor, BOSAS INTERNATIONAL LAW BUREAU, Abuja, Nigeria. 07036660639 eesiemokhai@yahoo.com


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