Thursday, February 4, 2016

THE IMPACT OF COLONIAL EXPERIENCE TO THE NIGERIAN LEGAL SYSTEM



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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3.     Adefulu, R. (2001).The context of politics and governance in postcolonial Nigeria. In R.Adefulu & W. Olaitan (Eds.), Issues in Nigerian government and politics (pp. 8-24) Ijebu-Ode: RAD Consultancy.

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5.     Adesomoju, A. (2013, July 22). New SANs emerge amid calls for reform. Punch. Retrieved from www.punchng.com/feature/the-law-you/new-sans-emerge-amid-calls-for-reform/

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7.     Afonja, B. (2013, November 13).Nigeria: A nation in dilemma. The Guardian. Retrieved from www.ngrguardiannews.com/ index.php/features/policy-a-politics/138347-nigeria-a-nation-in-dilemma

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13. Encarta Dictionaries  

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