By Douglass Anele
One of the perennial issues in the philosophy of law or jurisprudence is the question of the status of morality in law. Philosophers, jurists and other interested parties have approached and debated the topic mainly from two broad theoretical perspectives.
The first one, the natural law doctrine, argues that morality is indispensable to law. Natural law theorists such as St. Augustine, neo_Thomists, Joseph Omoregbe etc. maintain that any law that contradicts the fundamental principles of morality is not a genuine law.
The second theory, legal positivism, posits that once a rule or regulation passes through the law_making procedures accepted in a community, it becomes a law; the question as to whether the rule contradicts or does not contradict moral principles is secondary and, strictly speaking irrelevant. Prominent legal positivists include John Austin and H. L. Hart.
We believe that law is a complex phenomenon with different components. There are political, economic, socio-cultural, moral and philosophical dimensions in law, such that overconcentration on a single aspect, morality say, puts it in a Procrustean bed. There is no doubt that once a rule passes through laid down processes it becomes law.
However, a law that flagrantly negates certain basic moral principles is definitely a bad law, and in such a situation people are justified to disobey that very law. The Nuremberg trials of former Nazi officials is a poignant reminder that those vested with law-making and law_enforcement powers in every society must be mindful of the kind of laws they are enacting and enforcing, and ensure that such laws are in harmony with core moral ideals, especially those ideals that have universal acceptability.
In Nigeria, decades of military dictatorship have stultified the evolution of humane laws that ought to protect the life, property, freedoms and well-being of the masses.
The most notorious example is the obnoxious Decree 2 enacted during the regime of Maj. Gen. Muhammadu Buhari. But the situation is not much better under civilian dispensation. In the country today, legislators at the federal, state and local government levels appear to be preoccupied with making laws that would serve the selfish interests of members of the ruling class, and in exploiting inadequacies of the 1999 Constitution to accumulate wealth for themselves.
Thus, morality does not play a prominent role as it should in their legislative functions. Wole Soyinka, a world-acclaimed playwright, has described the current administration of President Goodluck Jonathan as “a civilian dictatorship.”
We believe that Soyinka’s damning verdict is due to lack of transparency and accountability in civilian governance which entered a new phase during the regime of former President Olusegun Obasanjo. Indeed, the failure of the National Assembly to pass the Freedom of Information Bill (FOI) is an indirect proof that Nigerian politicians are still firmly in the grip of no-go-areas mentality of the Babangida and Abacha years.
It follows that justice cannot be guaranteed in a dictatorship, whether military or civilian. Justice presupposes equality of all citizens before the law, which is anathema to the ruling class in Nigeria. Moreover, irrespective of constitutional provisions that guarantee equality of all citizens, and the facile pronouncements of judges and law teachers to that effect, in reality there are two sets of laws operating side_by_side in the country.
The first set applies to the anonymous “common man,” the downtrodden, the ordinary Nigerian distant from the centres of power as Pluto is distant from the sun. Under this very law, a man who stole a goat will have one of his arms amputated; if he sole a million he will be in prison for up to ten years.
The other set applies to “sacred cows,” the oppressors, the big men and thick madams who run things in Nigeria. This group includes top politicians, former heads of state and governors, high ranking members of the business elite, well-heeled clergymen and women etc.
Under this law former military dictators, kleptomaniac bank executives and failed politicians who misappropriated billions of naira are not only free to “enjoy” their stinking wealth, they even have the audacity to contest elections! A big man or thick madam who stole billions can return a small part of what he or she had stolen, enter into plea bargain with the relevant authorities and go home to mock the stupid system.
At any rate, going by what have been happening since the EFCC was created, Nigerians know that when a prominent and well-connected person commits an offense no matter how serious, the worst punishment he or she might receive is two years imprisonment.
This is the reality of inverted justice in our nation: it is the major reason why the ogre of corruption is spreading its tentacles to all aspects of our national life.
Recently, the media reported some judgments which brought to the fore once again the question of how prepared the Nigerian judiciary is to really tackle electoral fraud and the menace of corruption at the highest levels of political administration and business.
The judicial decisions we have in mind are (1) the sacking of Segun Oni, former governor of Ekiti State and (2) the decision on Cecilia Ibru who was arraigned before a Federal High Court in Lagos by the EFCC for financial crimes. To be continued.