Professor Fabian Ajogwu, SAN, FCIArb

LEGAL HISTORY AND POLITICS

A paper prepared by Professor Fabian Ajogwu, SAN, FCIArb and presented at the official launch and maiden conference of Legal History Society of Nigeria on October 10, 2019 at Oriental Hotel, Lekki-Epe Expressway, Lagos.

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Legal history and politics

* The Paper “Legal History and Politics in Nigeria” has been prepared by Professor Fabian Ajogwu, Senior Advocate of Nigeria, with Kenna Partners and Lagos Business School Professor of Corporate Governance with the assistance of Associate Counsel, Sotonye Belonwu and Adaobi Oni-Egboma for presentation at the Official Launch and Maiden Conference of Legal History Society of Nigeria held at Oriental Hotel, Lekki-Epe Expressway, Lagos on October 10, 2019.

ABSTRACTKnowledge of history is important because it allows us to understand our past, which in turn enables us to appreciate our present circumstances and possibly predict the future. If we must know how and why our society is the way it is today, we must look to history for answers. The present Nigerian Legal System is a blend of multifarious sources comprising of her age long Customary laws, the Received English laws, Judicial Principles and International policies relevant to the body politic. In the nascent times, the diverse societies which would later be unified as “Nigeria” existed on pristine rules which were necessary to avoid anarchy. These laws which would later be refined, regulated the people’s lifestyle. Although, not being self-executory in themselves, it became imperative that these laws be brought into life by some human instrumentality; thus the emergence of governance. In later years, the concept of governance would be heightened and become loosely synonymous with Politics. Consequent upon the birth of the “Nigerian Entity”, Nigeria has experienced a chequered history ranging from her colonisation, quest for independence, threats of succession, militarisation and presently democratisation and these have undoubtedly had a significant and immutable role in defining Nigeria Legal History. Albeit, an incontrovertible fact remains: the law has always been and will always remain the substratum upon which politics subsists. While the law exists to regulate every human society, governance is the human instrumentality needed to bring the law into life. The aim of this paper is to examine the legal history and politics in Nigeria.

1 Rufus Burrow, Jr. James H. Cone and Black Liberation Theology Marcus Garvey (McFarland & Company Inc. Publishers, 1994) 21; See also Civil Rights Activist (1997 – 1940) accessed online at < https://www.biography.com/people/marcus-gravey-9307319> on August 7, 20192 Paul Vinogradoff, ‘The Meaning of Legal History’ (Columbia Law Review, Vol. 22 (No. 8) (Dec. 1922) accessed online at https://www.jstor.org/stable/1112733 on August 7, 20193 See generally, Harold Dwilight Laswell, Politics: Who gets what, When and How? (Literary Licensing, LLC, 2011)4 Andrew Heywood, Politics (4

th edition, Palgrave Macmillan, New York, 2013)

1. INTRODUCTIONI will like to begin this session with this quote by Marcus Garvey, the Jamaican Nationalist: “A people without the knowledge of their past history, origin and culture is like a tree without roots”1. This illustration may simply seem anecdotal but in reality it shows the depth of the need for a people to be informed of their history.

Professor Willard Barbour, in his attempt to describe the meaning of legal history noted that: “...law applied by the courts is insufficient to explain the juristic relations of a society….curiously enough this drives a writer like Ehrlich back into history”.2 This in plain terms means legal history can be described as the history of law. Therefore, an inquiry into legal history in Nigeria is essentially an inquiry into the history of law in Nigeria. Conversely, the term, “politics” can be gotten from the Greek word “polis” which means city. The term politics was defined by Harold Lasswell, as “the process of who gets what, when and how”.3 Chancellor Bismark had however noted that, “politics is not a science but an art”.4 In simple terms, politics can be defined as the process and/or the study of system of government.

While I discuss: Legal History and Politics, I want us reflect on the theme of this conference: Does Legal History Really Matter? This will enable us to put into perspective and to appreciate objectives of the Legal Society of Nigeria.

For the purpose of this session, I shall examine the topic under the following subheadings:

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• Legal history and politics: A Nigerian Voyage• Moving Forward: The importance of Legal History and

Recommendations• Conclusion

2. LEGAL HISTORY AND POLITICS: A NIGERIAN VOYAGEEvery society irrespective of its state of development must exist upon orders and rules (formal or informal and regardless of whatever nomenclature) to thrive. To act otherwise would attract the inevitable recipe of anarchy into its existence. Before the birth of the entity called “Nigeria” the various protectorates and smaller communities within; which would later become the present day Nigeria, all existed on self-made rules premised on the values and practices of the people over a period of time. In the coming years, these values and practices later evolved into customs and traditions regulating the people’s lifestyle. The various customs regulating different sects of people defined the “do’s and don’ts” albeit informally, where to be adhered to in order to ensure peaceful co-existence. These customs and traditions also had in place punishments ranging from fines, flogging, simple imprisonment, ostracism and in extreme case banishment for individuals who had willingly disobeyed the laws of the land.

While these informal sets of rules, customs, and traditions were very much in place and intended to ensure the peaceful coexistence of individuals in the society, it is noteworthy to mention that these rules were not self-executory. The intended effect of these rules had to be actualised by the instrumentality of “Governance”. These rules had to be administered by a human force recognised and accepted by the community. This human force which constituted a single individual or a group of persons were saddled with the responsibility of giving life to the laws by ensuring that same were properly adhered to by members of the community.

The next question to be asked here is: does the Hobbesian description of man as-solitary, poor, nasty, brutish and short5 apply to the Nigerian Legal system? In analysing this puzzle, the voyage into the legal history and politics of the Nigerian clime will be categorised into three namely:

1. Precolonial2. Colonial3. Post- Colonial

2.1. Precolonial NigeriaHistorical records illustrate that prior to the coming of the Europeans in the 19th century, each of the territories constituting

5 Thomas Hobbes, Leviathan, (Dover publication, INC New York, 2012), pg. 70.6 Anthony Gbadebo Olangunju, ‘Historical Development of Nigeria’s Legal System from Colonialism to Present (General Studies Book of Readings) (Vol.2) available online at http://www.lasu.edu.ng/publications/law/gbadebo_olagunju_bk. Last accessed August 29, 2019.7 ibid8 Abdulsalami Muyideen, ‘Historical Background of Nigerian Politics, 1900-1960’ (2013) 16 IOSR Journal of Humanities and Social Science <http://www.iosrjour-nals.org/iosr-jhss/papers/Vol16- issue/K01628494.pdf?id=7790> accessed 3 August 2019.9 ibid10 ibid

the entity now called Nigeria had a system of administration of justice. Even though not as sophisticated as that of the Europeans, the administration was patterned along the indigenous ways of the people. As noted by Niki Tobi JSC;

“It was designed to ensure stability of society and maintenance of the social equilibrium. The most important objective was to promote communal welfare by reconciling the divergence of the different people.”6

Among the Hausa and the Yoruba communities where the “Emirship” and “Obaship” system of governance. In this structure, the administration of justice had taken firm roots and was efficiently organized with the Oba or Emir at the core of dispensation of Justice.7 The Northern region was characterised by a centralised system of government with the Emir as the ultimate political head and fountain of justice. All allegiance was paid to the Emir who had the final verdict. There were also institutions in the North who assisted the Emir in ensuring administration of justice such as the Waziri who was next to the Emir, the Alkali or Chief Justice who was charged directly with the administration of justice and the Dogaris who assisted the Alkalis in the enforcement of law.

The system of governance in the Yoruba region of Nigeria, is best described as a partially centralised system and a partially acephalous system. It was a democratic setting which featured checks and balances in its administration.8 The Oba was the political head, who was regarded as the fountain of justice, he had his itinerary of Chiefs composing the Otun, the Osi, and the Balogun amongst others.9 They surrounded the Oba and assisted him in deliberations concerning the community. Although the Oba was regarded as supreme, his duties were checked by the Bashorun, the Alaafin and the Oyo mesi. When sitting in the local court, the Oba usually sat alone or in the company of his Chiefs for Consultation in the dispensation of justice, although the final decision was his and he was not bound to follow any of the advice offered by his Chiefs.

The Igbo society unlike the Hausa and Yoruba community was predominantly acephalous in nature. It was organised as a chief-less society, segmentary and egalitarian in nature. There existed no supreme kings like the Oba and Emirs.10 Each village comprising of the entire Igbo society was administered like an Independent Sovereign state. However, there existed many institutions in the society, charged with the responsibility of ensuring law and order as well as enforcing the laws of the land like. These included the family group, village council, Ozo title holders and Age Grades. The Family Group was one of the most recognized institutions in pre-colonial Igbo society and was seen as the basic unit of every political institution. Nonetheless, the advent of the British colonial masters

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into the would-be Nigerian entity, introduced a new twist into the existing system of governance adopted by the various regions.

2.2. Colonial NigeriaFollowing the amalgamation of the Northern and Southern protectorate in 1914 into a single entity called Nigeria, a new system of administration and laws were introduced. The emergence of this rather unfamiliar concept of governance was fraught with stern opposition from most part of the regions, who felt that the supposed British system of administration was grossly alien to their already existing system of governance.11

The set-out principles of the administrative system for the new “Nigeria” was to be institutionalized as “indirect rule.” Existing Native institutions were utilized to govern the populace. The colonial masters considered the native institutions as the perfect inroads to infiltrate their alien system of governance. In the Northern Region, the system of indirect rule was a huge success owing to the

centralised system of administration already in existence. The select native chiefs became the alter ego of the colonial masters who gradually imposed a new style of governance into the existing administration. They collected taxes and performed other local administrative tasks and were wholly accountable to the colonial masters. The practice of the Indirect Rule system in the Western Region, although ultimately successful did not have as much easy intrusion as it was in the Northern Region. This was largely due to the existing Monarchial and partly acephalous system of administration. Native authorities who were part of the western culture were utilized in permeating this sphere.

In the Eastern Region, the idea of indirect rule was fraught with very significant resistance. The inherent acephalous nature of the Igbo society was largely accountable for the failure of the Indirect Rule system in this Region. The idea of imposition of Warrant Chiefs and District heads to regulate the people under a new styled governance was grossly alien and resulted in serious confrontations which later escalated in wars. The Aba Women Riot of 1929 was one of such consequence. The riot was ignited as a result of the imposition of direct taxation to women and the introduction of local courts which was at par with the already existing system of administration.

Notwithstanding the initial resistance expressed by the Regions, the British Colonial masters had come to stay, and they had come along with their system of administration and governance which would later become a defining and immutable twist in our legal history and the Nigerian history at large.

The colonial presence in Nigeria birthed the introduction of English type court systems. While the native courts gradually displaced the

11 The Colonial and Pre-Colonial Eras in Nigeria | AHA’ <https://www.historians.org/teaching-and- learning/teaching-resources-for-historians/teaching-and-learn-ing-in-the-digital-age/through-the-lens-of- history-biafra-nigeria-the-west-and-the-world/the-colonial-and-pre-colonial-eras-in-nigeria> accessed 3 August 2019.12 Protectorate Courts Ordinance No. 45 of 193313 Akpomuvire Mukoro, The Interface between Customary Law and Local Government Legislation, https://pdfs.semanticscholar.org/1b4c/728753cd9059bc2fac6df-538da417d7ac3b1.pdf. Last accessed August 27, 201914 Muojekwu v. Ejikeme [2000] 5 NWLR 402.15 Akpomuvire Mukoro, “The Interface between Customary Law and Local Government Legislation.” Ibid.16 Ibid

traditional modes of settlement of disputes, provincial courts and the Supreme Court were created. In 1933, the Protectorate Court Ordinance abolished the provincial courts and established the High Courts and Magistrate Courts as we know it.12 The customary laws governing the various regions were gradually refined, they became more regularised with the introduction of the general tests of validity which they were subject to before they could be enforced. The customs which had long had a binding force on the people were now refined and abandoned where necessary if they failed to pass the validity tests. Hence, a custom would only be enforceable where same was not repugnant to equity, natural justice, and good conscience. Such custom was required not to be incompatible either directly or by implication with any law for the time being in force and same must not be contrary to public policy.13 In the case of Muojekwu v. Ejikeme14, the Nigerian Court of Appeal examined a custom at issue in the context of several provisions of the constitution. The court considered the Nrachi custom of Nnewi that “enabled a man to keep one of his daughters unmarried perpetually under his roof to raise issues, more especially males, to succeed him. With the custom performed on a daughter, she takes the position of a man in the father’s house.15 The court of appeal held that the custom was discriminatory and therefore inapplicable.16 It was also held to be against the repugnancy test which dictates equity and good conscience.

Alongside the refined customary laws, English type laws were introduced to become a part of the legal system. The doctrines of Common Law, Equity and the Statutes of General Application collectively known as Received English Laws were ingrained to become a part of our laws. Over the years, the Nigerian Legal system became permeable to the various schemes of administration and governance, the colonial masters laid down. Various Constitutions were enacted and intended to govern the entire Nigerian populace. These constitutions invariably shaped the Nigerian Legal system into different phases.

The Clifford Constitution of 1922 introduced by the then British Governor, Sir Hugh Clifford set the foundation on which subsequent constitutions would later be enacted. The Constitution introduced the first electoral system in Nigeria and a legislative council for the country. The emergence of the concept of Elective Principle was a scheme designed to ultimately prepare the people for eventual self-government. In 1944, the then Governor, Sir Arthur Richards proposed for the amendment of the 1922 Constitution to address the shortcomings, which birthed The Richard’s Constitution of 1946. Under this Constitution, a central legislative council incorporating representatives from all parts of Nigeria to achieve a wholly representative government was achieved. It also provided for the establishment of Regional Houses of Assembly which allowed greater political participation.

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Notwithstanding these improvements, the Constitution still had its flaws. It limited franchise to only residents in Lagos and Calabar. The money required to acquire voting rights was unaffordable for most Nigerians. Also, the regional houses of assemblies could not make laws, they were merely grounds for public discussion. The Constitution excluded elitist participation in government as those nominated into the Regional Houses of Assembly and the Legislative Council were nominated by the native authorities.17

The Macpherson’s Constitution of 1951 which replaced the erstwhile Constitution provided for a Federal Legislature called the House of Representatives which was more encompassing. The Regional Legislatures were now empowered to make laws for their regions. Following this, The Lyttleton’s Constitution of 1954 was introduced and it birthed landmark changes into the Nigerian Legal system. It created a federal system of government which allowed for the division of powers between the Federal and Regional governments. With this Constitution, emerged the era of direct elections to both the Federal and Regional legislatures.

2.3. Post-Colonial NigeriaFollowing a series of subsequent constitutional conferences which paved the way for Nigerian’s Independence, the Independence Constitution of 1960 emerged. The new Constitution made provisions for a Parliamentary system of Government which created distinct offices for the position of the Head of State and the Head of Government. While the Head of State was reserved for the Queen of England notwithstanding our independence, the Head of Government who was the Prime Minister was Nigerian. It also made provisions for the establishment of a Bicameral Legislature at the Federal level, powers were divided between the Federal and Regional governments with the exclusive powers being reserved to the Federal Government. The Fundamental Rights of Nigerian citizens was officially entrenched into the constitution.

Three years after independence, Nigeria became a Republic and the 1963 Republican Constitution replaced the Independence Constitution. The Republican Constitution ushered in a wholly self- regulated government which divested the Queen and her cohorts of every official governing power over Nigeria. The offices of the Head of Government and State were fused into a single office; the office of President who was to elected by secret ballot of a joint session of both houses of the National Assembly.

In the coming years, the military government had assumed full effective control of government. The Constitution (Suspension and Modification) Decree 1966 was the first law made by the military government. It suspended certain provisions of the earlier Constitution. The Decree provided that the Federal Military Government had the power to make laws for the whole county or

17 ibid18 LER (2018) SC19 (2003) 15 NWLR (pt. 842) 11320 David Feldman, ‘Beginning at the Beginning: The Relationship between Politics and Law’ in Law in Politics, Politics in Law (ed. David Feldman) (A & C Black Publish-ers, 2014) 1 - 10

any part of it on any matter. A military Governor was appointed for each region and was then empowered to make laws for each region on matters not within the legislative lists contained in the Constitution of the Federation.

In 1979, the Parliamentary system of government was jettisoned and replaced with the Presidential system of government via the 1979 Constitution. The President was both the Head of State, Head of Government and Commander-in- Chief of the Armed Forces. The presidential system of government ushered in the concept of direct general election, whereby the president was elected by the electorate in general election as opposed to the parliamentary system of selected franchise. The federal legislature retained its bicameral nature, while the state legislative house remained unicameral. The judiciary was revamped and was officially vested with the power to interpret laws and declare acts that are contrary null and void.

Over the years, the Constitutions had been amended leading to our current Constitution; the 1999 Constitution of Nigeria (as amended). It established the Nigerian democracy where the rule of law will prevail as held in A.G. Fed. v. Abubakar18 and FRN v. Ifegwu.19 The federal government was established with three major levels of government; the federal, the state and local governments. It also created a framework for independence and separation of powers of the three tiers of government. The hierarchy of all superior and inferior courts of record was laid out as well as the necessary procedures to be followed. The principal officers of government, their powers, functions and mode of change of government were also acknowledged. Fundamental rights were more than ever before recognized and the judiciary was made independent. The Constitution also addressed matters pertaining to citizenship as it relates to dual citizenship. Consequently, the presidential Constitution of 1999 significantly transformed law and politics in Nigeria as we know it.

3. MOVING FORWARD: THE IMPORTANCE OF LEGAL HISTORY.The knowledge of a society’s legal history is inevitable if the course of the future must be elegantly charted. The realisation that governance and indeed modern day governance emerged out of the dire need to give life to the law is only brought to fore with the knowledge of legal history. An exposition into history resonates the fact that despite the general make belief which views the concepts of law and politics as two distinct ideologies incapable of forming a nexus, the law and governance are ideally complimentary notions which must coexist simultaneously to ensure harmonious existence. Thus, Governance closely knitted with Politics became the instrumentality upon which the law exerts its force.20

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Taking cognisance of the fundamental premise, the law has remained a foundation upon which governance and modern politics derive their existence. Hence, if any society desires to remain an efficient body politic, the art of politics must derive its validity at all times from the law; an exposition which only comes from the knowledge of legal history.

Most especially, I think it is highly vital that legal history be preserved by the present and future generations at all costs. It must be echoed at the grass root levels and beyond. It should be included in the curriculum of all class divisions in educational institutions. It is important to examine law and its relationship to the larger world of social movement, politics and government. Studying law from a period of time different from our own allows us to understand the timeline of events that have led to the current status quo. On this note, it is important to restate that a grasp of history allows us to not only understand where we are going by showing us where we have come from but allows us to see past events and the relevance they have now. It also allows us to identify past and present legal traditions, further enabling us to identify and explain the central problems with the traditions faced, as well as the solutions to those problems. It enables us understand and redefine our Government and Nigerian politics as we know it. More importantly, identifying the concerns faced by past legal systems and the solutions, helps to throw some light on the foundations of the legal system and politics in Nigeria, since some the past events have had a tremendous effect on current law and legal traditions. Certain legal and political problems faced in Nigeria currently cannot be solved without reference to the past.

Legal history, like law and politics is useful to lawyers and it’s a critical part of the profession. Lawyers today are part of a very long tradition and it encourages us to carry on and improve on that tradition. Even those who are not in the legal profession inevitably

benefit from understanding the legal history of Nigeria, as the Constitution governs all matters including politics. So it can be said that understanding how our current Constitution and laws came into existence is important, it allows for better recommendations to be made in line with the current political climate.

4. ConclusionNigeria has been significantly defined by its history which has also played an immutable role in Nigeria’s legal system. Prior to the amalgamation, the protectorates and smaller societies which later became unified into a single entity, were under some form of regulations albeit informal. These rules were designed to ensure that the people maintained peaceful coexistence. The subsequent events culminating into Nigeria’s history have evidently had a significant impact on her legal system as well as her system of administration, governance and politics. I believe that although law and politics may appear as two distinct entities, legal history reveals that governance and politics were birthed by law in order to give effect to the law. The realisation of this principle is necessary in charting our present course. It is my considered view that before a society can efficiently thrive, there must be an awareness that governance and politics cannot exist outside the law. Hence, the knowledge of a society’s legal history is an inevitable recipe for proper governance.

_____________________

Professor Fabian Ajogwu, SAN, FCIArb

Kenna Partners

Lagos, October 10, 2019

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References

1. Abdulsalami Muyideen, ‘Historical Background of Nigerian Politics, 1900-1960’ (2013) 16 IOSR Journal of Humanities and Social Science <http://www.iosrjournals.org/iosr-jhss/Vol16-issue/K01628494.pdf?id=7790> accessed 3 August 2019.

2. Akpomuvire Mukoro, The Interface Between Customary Law and Local Government Legislation, https://pdfs.semanticscholar.org/1b4c/728753cd9059bc2fac6df538da 417d7ac3b1.pdf

3. Andrew Heywood, Politics (4th edition, Palgrave Macmillan, New York, 2013).

4. Anthony Gbadebo Olangunju, ‘Historical Development of Nigeria’s Legal System from Colonialism to Present (General Studies Book of Readings) (Vol.2) accessed online at http://www.lasu.edu.ng/publications/law/gbadebo_olagunju_bk_5.pdf on 3 August 2019.

5. David Feldman, ‘Beginning at the Beginning: The Relationship between Politics and Law’ in Law in Politics, Politics in Law (ed. David Feldman) (A & C Black Publishers, 2014) 1–10.

6. Harold Dwilight Laswell, Politics: Who gets what, When and How? (Literary Licensing, LLC, 2011).

7. Paul Vinogradoff, ‘The Meaning of Legal History’ (Columbia Law Review, Vol. 22 (No. 8) (Dec. 1922) accessed online at https://www.jstor.org/stable/1112733 on August 7, 2019

8. Protectorate Courts Ordinance No. 45 of 1933

9. Rufus Burrow, Jr. James H. Cone and Black Liberation Theology Marcus Garvey (McFarland & Company Inc. Publishers, 1994) 21; See also Civil Rights Activist (1997–1940) accessed online at < https://www.biography.com/people/mar-cus-gravey-9307319> on August 7, 2019.

10. The Cpapers/colonial and Pre-Colonial Eras in Nigeria | AHA’ <https://www.historians.org/teaching-and-learning/teaching- resources-for-historians/teaching-and-learning-in-the-digital- age/through-the-lens-of-history-biafra-nigeria-the-west-and-the- world/the-colonial-and-pre-colonial-eras-in-nigeria> accessed 3 August 2019.

11. Thomas Hobbes, Leviathan, (Dover publication, INC New York, 2012), pg. 70.

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AboutProfessor Fabian Ajogwu, SAN, FCIArbProfessor Fabian Ajogwu is the Principal Partner of Kenna Partners, a Senior Advocate of Nigeria, and a Professor of Corporate Governance at the Lagos Business School. He is an Alumnus of both the Saïd Business School of Oxford University and the Lagos Business School. He holds a doctorate degree in Law from the University of Aberdeen, Scotland; an MBA from the IESE Business School, University of Navarra, Barcelona; and Law degrees from the University of Nigeria, and University of Lagos.

The Learned Senior Advocate has been Lead Counsel to the Federal Government of Nigeria and its Agencies in several cases of national importance. He has extensive experience in deal structuring and has advised on complex transactions in several industries including Energy, Maritime, Banking and Financial services, Real estate and Infrastructure. He chairs the Board of the Novare Group in Nigeria (owners of the Novare malls), ARM Harith Infrastructure Ltd (Nigeria’s pioneer infrastructure fund), and NES

Global, amongst others. He is a Non-Executive Director of Stanbic IBTC Holdings Plc, a Non-Executive Director of Guinness Nigeria Plc, and has served as Honorary Counsel to the State of Israel and the Republic of South Africa, in Nigeria. He assisted the Securities and Exchange Commission in drafting Nigeria’s pioneer Code of Corporate Governance. He chaired the Nigerian Communications Commission Committee (NCC) on Corporate Governance that produced the pioneer NCC Code of Corporate Governance for the Telecommunication sector in the year 2014 and assisted with the Code’s review in 2016. He also served on the Committee of the Financial Reporting Council of Nigeria that produced the 2018 National Code of Corporate Governance.

He is a member of the Editorial Board of the ‘Journal of Corporate Governance’, a publication of the Society for Corporate Governance Nigeria and a member of the Editorial Board of the ‘Journal of Law Practice’ of the body of Senior Advocates of Nigeria.

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