Ibrahim Sa'adu a.k.a gco (B Sc. Sociology)
INTRODUCTION
The
Federal Republic of Nigeria (FRN) is a Constitutional Republic. At
independence, Nigeria consisted of three regions, namely, the Northern Region,
the Eastern Region and the Western Region. Presently, Nigeria is made up of 36
states and a federal capital territory (FCT), located in Abuja. These states
are, as a matter of convenience and political expediency grouped into 6
geopolitical zones of North East, North West, North Central, South East, South
West, and South-South. This grouping has however not been accorded any
constitutional recognition. There are close to 400 linguistic groups in
Nigeria, but the 3 major languages are Hausa, Igbo and Yoruba, while English is
the official language.
The Nigerian Legal System (NLS) is based on the English Common Law
and legal tradition by virtue of colonization and the attendant incidence of
reception of English law through the process of legal transplant. English law
has a tremendous influence on the Nigerian legal system, and it forms a
substantial part of Nigerian law. Section 45 (1) of the Interpretation Act
provides that, the
common law of England and the doctrines of equity and the statutes of general
application which were in force in England on 1st January, 1900 are applicable
in Nigeria, only in so far as local jurisdiction and circumstances shall permit.
Consequently, legal issues evolving from common law in England and
codes of conduct of the medical profession and professional ethics as a whole,
such as confidentiality, consent, malfeasance, beneficence, duty of care are applicable
in Nigeria even though they have not been legislated upon.
SOURCES
OF NIGERIAN LAW
The
sources of Nigerian Law are as follows:
1. THE CONSTITUTION:
The Nigerian Constitution is a Federal one. A federal constitution is one which
provides for division of powers between the constituents of the Federal
Government. The Nigerian Constitution is
supreme. Constitutional supremacy relates to the supremacy of authority of the
constitution over other laws. Section 1(1) provides, “this
Constitution and its provisions shall have binding force on all authorities and
persons throughout the Federal Republic of Nigeria”.
2. LEGISLATION:
The Constitution regulates the distribution of legislative business between the
National Assembly which has power to make laws for the Federation and the House
of Assembly of each state of the federation.
The current legislation in force
at the Federal level is largely contained in the Laws of the Federation of
Nigeria 2004 (LFN). Laws made subsequently are found in the annual volumes of
the laws of the FRN. Federal laws enacted under the military regime known as
Decrees and state laws known as Edicts form the bulk of primary legislations.
3. ENGLISH LAW:
This consists of:
a.
The
received English Law comprising of the following, the common law, the doctrine
of equity, statutes of general application in force in England on January 1,
1900, Statutes and subsidiary legislation on specified matters, and
b.
English
law (statutes) made before 1st October, 1960 and extending to Nigeria which are
not yet repealed. Laws made by the local colonial legislature are treated as
part of the Nigerian legislation.
Despite the influence of English law, the
Nigerian legal system is very complex because of legal pluralism.
Legal pluralism is the existence of multiple legal
systems within one geographic area. It occurs when different laws govern
different groups within a country or where, to an extent, the legal systems of
the indigenous population have been given some recognition. Legal pluralism is
prevalent in former colonies, where the law of a former colonial authority may
exist alongside traditional legal systems. This is evident in the Nigerian
Legal system where the customary law exists side by side with the inherited
English Legal System.
4.
CUSTOMARY LAW: This emanated from the usage and
practices of the people. The traditional classification of customary law is
into the following categories:
·
Ethnic/non–Muslim:
is the indigenous law that applies to the members of the different ethnic
groups. Nigeria is made up of several ethnic groups each with its own variety
of customary law. Ethnic Customary law is unwritten, uncertain and difficult to
ascertain. Ethnic Customary law is enforced in customary courts. These
courts are at the lowest rung of the hierarchy of courts and in most cases are
presided over by non- legally trained personnel.
·
Muslim
Law / Shari’a: In the southern part of the country, Muslim/ Islamic law, where
it exists, is integrated into and has always been treated as an aspect of the
customary law. Islamic law has however been in use in the Northern part of the
country since 1959. Islamic/Shari’a/Muslim Law is written with clearly defined
and articulated principles. It is based on the Islamic religion and was
introduced in Nigeria as a consequence of a successful process of Islamization.
It is based on the Holy Koran and the teachings of the Prophet Mohammad. The
Muslim laws, also known as the Shari’a are found in the Holy Koran and the
Hadith (teachings of the Prophet Mohammad).
5. JUDICIAL PRECEDENT:
This is “an earlier happening, decision, etc, taken as an example or rule for
what comes up later. The doctrine of precedent is founded on the objective of
law that ensures that like cases are decided alike. The operation of the
doctrine is tied to the hierarchy of the courts. A court is bound by the
decisions of any court above it in the hierarchy and usually by a court of
co-ordinate or equivalent jurisdiction. The Supreme Court is the highest court
of the land. The Court of Appeal is the penultimate court to entertain appeals
from the High Courts, which are the trial courts of general jurisdiction. The
Court of Appeal and all lower courts are bound by the decision of the Supreme
Court.
The judicial precedent does not
apply to certain courts like the customary/area courts and the Shari’a courts.
The Federal and State courts are
not in two parallel lines. It is only to a limited extent that it may be
asserted that each state has its own legal system.
6. INTERNATIONAL LAW: Nigeria
is a member of the United Nations, the Commonwealth of Nations, African Union
and many others.
Although Nigeria is a signatory to
various international conventions and covenants, these are not enforceable in
Nigeria unless they are enacted into law by the National Assembly.
THE IMPACT OF COLONIALISM ON NIGERIA’S
LEGAL SYSTEM
The
impact of colonialism on Nigeria’s legal system is indeed very profound as
British law presently constitutes one of the major sources of Nigerian law. As
such, the common law of England, the doctrines of equity and the Statutes of
General Application in force in England as at January 1, 1900 are still valid
laws in Nigeria (Malemi, 1999). This is evident in the High Court Laws and High
Court Civil Procedure Rules of States in Nigeria. The subservience of Nigeria’s
legal system to colonial laws especially judicial decisions is expounded by
Agbede (1989, p.18) to the effect that:
The explanation appears to be that prior to
the attainment of independence, the majority of the personnel of the Nigerian
superior courts were English. Moreover, the Nigerian judges themselves are
trained in English Law. It is only natural that they should be fascinated by
the decisions of the English superior courts, which in any case, are in line
with their own reasoning.
It is however
heartening to know that even though resort to English law still forms part of
Nigeria’s laws, Nigerian Courts have established the stance that English
judicial authorities are merely of persuasive value in Nigerian courts as
opposed to the previous situation where such decisions made in England are
binding on Nigerian courts. The present position adopted by Nigerian Courts is
explicitly rationalized by Tobi (2007) thus:
It is therefore
worrying, to say the least, for a sovereign nation, to continue to make use of
laws of a foreign Country with the same sovereign status, in search of justice
in a jurisprudence which is supposed to be indigenous to its peoples. It is
much more worrying when the application of elements of foreign laws is forced
up that sovereign nation by so-called enabling statutes. The million naira
question is: Why should the legal system of this Country continue, as a matter
of law, to operate English Statutes, some of which have either been repealed or
gone through several amendments? Why should Nigeria continue to operate such
English statutes that are of little or no relevance to our sociology and
anthropology?
Even though, the
Nigerian Judiciary has detached itself from the apron-strings of colonial
judicial authority, the Nigerian Legislature has fared worse as certain
statutes introduced by the British into Nigeria are still in force even though
the provisions of the said statutes are of the diminished value or have become
irrelevant in contemporary times. In the words of Esiemokhai (2012):
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 (Hortatory is a word used to describe a behavior
or action that is encouraging. Example; in the face of great economic crisis,
the president's speech takes on a hortatory
or encouraging tone, at a time when people most need the reassurance) in nature.
An example that
readily comes to mind is section 34 of the Nigerian Criminal Code which
provides that a husband and wife of Christian marriage are not criminally
responsible for a conspiracy between themselves alone. This provision is a
colonial legacy which reflects British recognition of Christian marriage as the
only valid form of marriage to the exclusion of other forms of marriage which
exist in Nigeria (Adesanya, 2009). Furthermore, section 162 of the Nigerian
Evidence Act pertaining to Competence and Compellability of witnesses is to the
effect that a spouse of a Christian marriage is not a competent and compellable
witness against his or her spouse upon any criminal prosecution. This provision
also excludes Nigerians who are married under Native Nigerian Law or custom and
is highly discriminatory (Kolawole, 2009).
In spite of the
above, it will amount to abdication of responsibility if deficiencies in
Nigerian Statutes are laid at the doorstep of colonialism. The Nigerian
Legislature as well as the Nigerian Law Reform Commission must of a necessity
awake from legislative inertia (lack of movement
or activity especially when movement or activity is wanted or needed) and repeal (to officially end the validity of something such as Law) colonial
laws in favor of laws which reflect Nigeria’s contemporary socio-political
milieu. Tobi (2007)
aptly conveys this message thus: If the colonialists, in their usual
sensitivities characteristic of exploration and discovery, exported their laws
to the colonies, the colonized on their attainment of independence should be
able to jettison (discard) the
colonial system in all its ramifications and adopt its own system. This is the
function of the Legislature.
It is worthy of
note that relics of colonialism also abound in the practice of Law in Nigeria.
For instance, Lawyers in Nigeria cannot appear in Court without wearing the
traditional wig and gown as proffered by the British. Although the wig and gown
distinguishes members of the learned profession, it becomes a burden especially
when the weather is hot and where the Court rooms are not well ventilated as is
usually the case. Apart from the argument that the legal profession has a
conservative tradition which must not be tampered with, it can also be argued
that the wig and gown does not have any bearing on quality delivery of legal
service or whether it improves advocacy in court.
Another cause of
controversy is the appointment of Senior Advocates of Nigeria adopted in line
with the Queen’s Counsel model operating in Britain. Although the rank of
Senior Advocate is the zenith of the legal profession in Nigeria, there are
increasing calls for its abolition on the grounds that it is a colonial legacy
which creates a supposedly superior class of lawyers who receive preferential
treatment in all spheres of legal practice to the detriment of other members of
the legal profession (Adesomoju, 2013). This is another controversy traceable
to colonialism which is a divisive factor in the legal profession and is in
need of urgent review.
CONCLUSION/SUMMARY
The Constitution of Nigeria is the supreme law
of the country. There are four distinct legal systems in Nigeria:
·
English law
which is derived from its colonial past with Britain;
·
Common law,
a development of its post colonial independence;
·
Customary law
which is derived from indigenous traditional norms and practice, including the
dispute resolution meetings of pre-colonial Yoruba land secret societies and
the Èkpè
and Okónkò of Igbo land
and Ibibio land;
·
Shari’a
(Islamic) law, used only in the predominantly Muslim north of the country. Civil
Shari’a law has always been enshrined in the various Nigerian constitutions
since independence. The most recent constitution came into effect in 1999. With
the return of the country to democratic rule in 1999, some of the predominantly
Muslim northern states have instituted full Shari’a law (criminal and
civil). Full Shari’a law was first passed into law in Zamfara
in late 1999 and the law came into effect in January 2000. Since then eleven
other states have followed suit. These states are Kano,
Katsina,
Niger,
Bauchi,
Borno,
Kaduna,
Gombe,
Sokoto,
Jigawa,
Yobe,
and Kebbi.
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.
There are also
positive impacts of the colonial legal system among them is that; it introduces
the two new institutions which have been maintained since independence, namely
a new judicial system and a new bureaucracy or civil service.
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.
In conclusion, from the
available evidence, however, it would appear that a much more balanced
assessment is necessary. The impact of colonialism was positive as well as
negative. However, it should be emphasized that most of the positive effects
were, by and large, rather accidental by-products of activities or measures
intended to promote the interests of the colonizers.
REFERENCES
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