Abstract
In recent years, the judicial systems of African countries have been increasingly ineffective, as demonstrated in cases as varied as the genocide in Rwanda and the land seizures in Zimbabwe. It is not only in cases involving individual rights and the state that the legal system is barely existent. The situation is just as bad, if not worse, in the administration of criminal justice. Whether it is the police, the prisons or the courts, under both military and democratic governments, we are confronted with evidence of the impotence of the judiciary. This article examines the relationship between the executive and judicial branches of governments in Nigeria. It also makes recommendations to improve the responsiveness and effectiveness of African judiciaries in checking executive power.
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Notes
- 1.
The latest instances of alleged judges’ involvement in corruption have come from Nigeria and Kenya. “N5bn bribery allegation: Interpol quizzes Chief Justice, six others – As ICPC arrests Akwa-Ibom Chief Judge, electoral tribunal members” was the headline in Nigeria’s Vanguard, Wednesday, April 21, 2004, and the publication of the price list for Kenyan Judges. “‘Price list’ for Kenya’s Judges”, BBC News Online, Friday, October 3, 2003 [http://news.bbc.co.uk/2/hi/Africa/3161034.stm].
- 2.
See in general the debate on this issue by F.U. Okafor, “Legal Positivism and the African Legal Tradition”, (1984) 24 International Philosophical Quarterly 157–164; Olúfé̩mi Táíwò, “Legal Positivism and the African Legal Tradition: A Reply”, (1985) 25 International Philosophical Quarterly 197–200; P. C. Nwakeze, “A Critique of Olúfé̩mi Táíwò’s Criticism of Legal Positivism and African Legal Tradition”, (1987) 27 International Philosophical Quarterly 101–105; Jare Oladosu, “Choosing a Legal Theory on Moral Grounds: An African Case for Legal Positivism”, (2001) 2 West Africa Review [http://westafricareview.com]. See also B. O. Nwabueze, Judicialism in Commonwealth Africa (London: C. Hurst Publishers, 1977), Chap. XIV.
- 3.
Incidentally, once it was agreed that a corporation could be adjudged a ‘legal person’, it became eligible for many of the privileges and forbearances attached to the human legal subject. This merely serves to underscore the centrality of the legal subject to the modern legal system.
- 4.
For an exception see, Michael Reisman, “The Individual under African Law in Comprehensive Context”, in Dr. Peter Nanyenya Takirambudde, ed., The Individual under African Law, Kwaluseni, 1982, pp. 9–27. See also, in general, Thierry G. Verhelst, ed., Legal Process and the Individual: African Source Materials, Proceedings of the Economic Commission for Africa Conference of African Jurists, Addis Ababa 1971. It is noteworthy in this respect that in their edited collection of essays, African Law and Legal Theory (New York: New York University Press, 1995), Gordon R. Woodman and A.O. Obilade did not consider including the legal subject or the problems attached to the idea of the individual in the law, as one of their subject categories. Nor are they likely to have found too many essays had they chosen to address the issue in their collection. Such is the paucity of writings treating of the theme of the individual in African law and legal theory. I do not mean to suggest that people do not talk about rights. The problem is that they either talk about rights in purely instrumentalist terms or they are too technicist about them in their discussions. For the most part, little attention is paid to the philosophical foundations of our legal system. This is not a job for lawyers, from among whose ranks most commentators in African law come; it is one for legal theorists and philosophers. Unfortunately, few have been the philosophical interventions in African law in the common law countries. This paper is meant to be one such contribution.
- 5.
To the already extensive judicial education going on in African countries now must be added the input of philosophers and historians of ideas who can inculcate a sense of the enabling philosophical principles of specific legal practices.
- 6.
For the latest instance of a State Supreme Court tossing out a murder conviction for failure by police to read a suspect his Miranda rights, see Maura Dolan, “Police Are Rebuked on Miranda”, Los Angeles Times, 15 July, 2003, A1.
- 7.
Indeed, the present time, when all of these time-honoured principles are under severe attack in the United States of America by pre-modern forces under the generalship of John Ashcroft, the Attorney General, is the best time to come to a deeper appreciation of those principles in their observance.
- 8.
The Nigerian equivalent of the Miranda warning.
- 9.
M. Ayo Ojomo and I. E. Okagbue, Human Rights and the Administration of Criminal Justice in Nigeria, N.I.A.L.S. Research Series No. 1, Lagos:, 1991, pp. 111–112. My emphasis.
- 10.
Ojomo and Okagbue, p. 112.
- 11.
D. O. Adesiyan, An Accused Person’s Rights in Nigerian Criminal Law, Ibadan, 1996, p. xii.
- 12.
Answers are not lacking in the literature. In addition to poor education, appeals can be made to endemic corruption, lack of adequate equipment and facilities. What follows is meant to augment existing explanations, not supplant them. What is more, it is rarely canvassed by African scholars.
- 13.
See in general Jürgen Habermas, The Philosophical Discourse of Modernity, trans. Frederick G. Lawrence Cambridge, 1990; Stuart Hall, David Held, Don Hubert and Kenneth Thompson, eds., Modernity: An Introduction to Modern Societies Oxford, 1996; Bill Bourne, Udi Eichler and David Herman, eds., Modernity and Its Discontents Nottingham, 1987.
- 14.
This is how Reisman made the same point. “Precisely because so many assume that individuality is an ancient and inherent aspect of Western civilization, it important to mention briefly the constellation of trends in order to appreciate that the West only produced the doctrines and practices of individualism at a comparatively late stage in its own development.” “The Individual under African law in Comprehensive Context”, 11. For a full historical treatment see Colin Morris, The Discovery of the Individual: 1050–1200, New York, 1972.
- 15.
The usual constitutional provisions have been joined in recent times by pan-African pronouncements concerning human rights. See in general, Chidi Anselm Odinkalu, “The Individual Complaints Procedures of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment”, (1998) 8 Transnational Law & Contemporary Problems 359; Yemi Akinseye-George, “New Trends in African Human Rights Law: Prospects of an African Court of Human Rights”, (2001) 10 University of Miami International & Comparative Law Review 159–176.
- 16.
The narrative is inaccurate because at the time of the proclamation of the Magna Carta, England was a feudal society where talk of freedom of serfs would be a contradiction in terms. The freedom that people ascribe to the Magna Carta is more appropriately traced to the Act of Settlement of 1701 and the 1688 Glorious Revolution that prepared the ground for it. It is a sign of the illiteracy that afflicts our understanding of the history of our inherited Euro-American institutions that we think Englishmen, not to talk of women, have been free since 1215.
- 17.
It is strictly this philosophical dimension that is of moment here. The numerous discussions of human rights and the expanding discourse about them in Africa do not address this element. They take for granted that the idea of the individual is obvious or unproblematic.
- 18.
See in general Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978).
- 19.
Such an approach was the principal butt of severe criticism by Ronald Dworkin in Taking Rights Seriously.
- 20.
For examples of legal discussion of the problems associated with clawback clauses in the African Charter on Human and Peoples’ Rights see, Nsongurua J. Udombana, “Toward the African Court on Human and Peoples’ Rights: Better Late Than Never”, (2000) 3 Yale Human Rights and Development Law Journal 45; Chidi Anselm Odinkalu, “The Individual Complaints Procedures of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment”, (1998) 8 Transnational Law & Contemporary Problems 359. These authors are not exercised by the philosophical issues that rivet our attention.
- 21.
These include the presupposition that freedom is so important that it has to be supported by a fortress of prohibitions and forbearances; hence, the requirement of proof beyond a reasonable doubt. Another is traceable to the Cartesian foundations of the play of doubt in the quest for and justification of knowledge. When there is doubt, the claim involved is hardly ever accepted; when there is no doubt, it is often accepted. The epistemological foundations of this requirement of proof beyond a reasonable doubt must be located in the skepticism about human nature and its cognitive tools, marked as both are by the possibility of error.
- 22.
Although I do not discuss it here, a full explanation must include the fact that most participants in the legal profession in Nigeria either do not have any familiarity with the Euro-American philosophical tradition or, when they do, take seriously the implications of the tradition for the legitimacy and justification of the practices they engage in as lawyers, judges, law teachers, court bailiffs, prison officers, police officers, and so on.
- 23.
The history of the United States of America, especially of the long tenure of J. Edgar Hoover at the head of the Federal Bureau of Investigation, is replete with shenanigans of this sort. And the experience of African Americans also attests to the capacity of the government to derail justice by railroading the legal subject.
- 24.
Typified by John Locke, Thomas Hobbes, David Hume, and Jean-Jacques Rousseau and revivified in our time by John Rawls.
- 25.
This attitude is manifested in the repeated, often abject appeals to the Executive for relief; visits by Chief Judges of Nigeria’s many states to prisons in their jurisdictions to set suspects free who should not have been in the jails in the first place or who may have spent more time awaiting trial than would be merited were they found guilty of the offences for which they have been charged, and so on. Rarely are sanctions imposed on erring officers for violating rights or the procedures that guarantee them.
- 26.
See note 11 above.
- 27.
See Ajomo and Okagbue, Rights and the Administration of Criminal Justice in Nigeria. Human Rights reports from Nigeria by bodies like the Committee for the Defence of Human Rights are replete with such charges.
- 28.
It is no accident that discussions of human nature in Euro-American philosophy are dominated by the mind-body problem inaugurated by the founder of modern philosophy: René Descartes.
- 29.
- 30.
See, for the Nigerian case, Omoniyi Adewoye, The Judicial System in Southern Nigeria 1854–1954, Chap. 6.
- 31.
(1942) A.C. 206. Cited from I. O. Agbede, “The Rule of Law and the Preservation of Individual Rights”, in M. A. Ajomo and Bolaji Owasanoye, eds., Individual Rights Under the 1989 Constitution, Lagos, 1993, p. 41.
- 32.
“Judge-Lawyer Co-operation in the Protection of Human Rights,” in Ajomo and Owasanoye, eds., Individual Rights Under the 1989 Constitution, 84. Footnote omitted.
- 33.
According to his biographers, Justice Eso does share the temperament that is consonant with individualism and may even have acquired it from his father. But that it calls for special mention in the biography corroborates my claim that such a viewpoint is not taken for granted in Eso’s cultural milieu. See J. F. Ade-Ajayi and Yemi Akinseye-George, Kayode Eso: The Making of a Judge, Ibadan, 2002.
- 34.
Needless to say, Justice Eso may indeed not be conflicted about the modern heritage. We have ex-colonials who are not. I merely use the two justices in my illustration as types, foil for my argument.
- 35.
For a discussion of the connection between this view of human nature and the doctrine of the Rule of Law see, Olúfé̩mi Táíwò, “The Rule of Law: The New Leviathan?” (1999) 12 Canadian Journal of Law and Jurisprudence, 151–168.
- 36.
B.O. Nwabueze, Judicialism in Commonwealth Africa, p. 298.
- 37.
G. N. K. Vukor-Quarshie, “Criminal Justice Administration in Nigeria: Saro-Wiwa in Review”, (1997) 8 Criminal Law Forum 87. Footnotes omitted.
- 38.
Lawyers Committee for Human Rights, The Nigerian Police Force: A Culture of Impunity, New York, 1992, p. 10.
- 39.
A. G. Karibi-Whyte, The Relevance of the Judiciary in the Polity – in Historical Perspective, Lagos, 1987, pp. 58–59. My emphasis.
- 40.
T. Akinola Aguda, “Judicial Attitude to Individual Rights in Nigeria,” in Ajomo and Owasanoye, eds., Individual Rights Under the 1989 Constitution, 68.
- 41.
The original presentation on which this paper is based was made at the 9th Annual Conference of the International Society for African Philosophy and Studies (ISAPS) held at the University of Dar es Salaam, Dar es Salaam, Tanzania, 9–11 April, 2003. An earlier written version was presented at the conference on “Rights in Africa: New Contexts, New Challenges, New Agendas”, Program of African Studies, Northwestern University, Evanston, Illinois, U.S.A., 9–10 May, 2003. I would like to thank Seattle University for funding my participation at the ISAPS conference. My appreciation goes to Leni Silverstein for inviting me to participate at the Evanston conference. I would like to thank Kolapo Abimbola for his comments on an earlier version of the paper. My profound gratitude goes to participants at both conferences whose strenuous disagreements with various points in the paper have forced me to rethink some of the earlier formulations and, I hope, present them with less unclarity and extravagance.
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Táíwò, O. (2014). The Legal Subject in Modern African Law: A Nigerian Report. In: Onazi, O. (eds) African Legal Theory and Contemporary Problems. Ius Gentium: Comparative Perspectives on Law and Justice, vol 29. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7537-4_6
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