The Role of Law in Maintaining Sanity and Preventing Impunity in a Democratic Setting (Part 4)

Introduction

In our earlier outings in this treatise, we discussed the meaning of law, impunity, separation of power and separation of powers, checks and balances in Nigeria. Today, we shall x-ray How Law helps to maintain sanity and prevent impunity in a democratic setting. Please, read on.

 The force of law is a major requirement, for maintaining social order and preventing chaos in societies. It is difficult to imagine the existence of a community, without law. Lawmakers, courts and other officials of the law, help to preserve a harmonious society. As Freeman wrote:

“Fiction provides us with numerous examples of utopian societies where congruence of norm and ideal is such that there is perfect social harmony and no need for law or lawyers to emerge. History teaches us the unhappy truth that no such society has ever existed. In all societies, socialisation is an unequal process; there is always deviance and conflict, and law can be seen to emerge as a norm-asserting authority with the coercive power to sanction those guilty of violating the norm. It is difficult to escape the fact that law is necessary. If a society should ever come about where it is not, it may be predicted with certainty that it will be a society different from anything we have known”.

Law functions as an integral part of the society and so, occupies a important position. It generally performs four functions. First, it plays the role of protecting us from evil that is, those people who wish to do us bad without any good intention. Secondly, law helps in regulating relationships amongst humans, and other institutions in the society in a bid to promote the common good. Thirds is the resolution of disputes over limited resources -through the judiciary, to adjudicate upon disputes amongst persons and institutions. 

Finally, law in the society encourages people to do the right things even though there have been arguments as to the stricken division between law and morality. (ibid).

Thus, Law is an indispensable tool in maintaining sanity and preventing impunity in a democratic setting. As enquired by Okafor; (E.U. Okafor (1998) in his work Law, Democracy and Public Affairs:

“Why does Nigerian society function the way it does despite the provision of the law? It is a platitude to say that Nigerian society function as though no laws exist. And where there is no law, there is no justice and where there is no justice, there will be no order and peace.”

Without law, the society will suffer a great deal of anarchy and unrest; the mighty will exact the weight of their strength on the weak and defenceless and will not be made to account for their misdeeds. It is thus untenable to think of a society or State in the absence of law, let alone a democratic setting. This picture was aptly captured by Thomas Hobbes an English philosopher in his work “Leviathan”. Hobbes contemplates what life would be like in the absence of organised sovereign political power; or what the life of the people would be life if there was no law or the threat of punishment to keep us in check. He maintained that all humans were selfish as he looks at them in what he termed “state of nature” and further affirms that all men are driven by a common passion: a desire to be superior to others for the dual purpose of self-gratification and self-protection. Hobbes stated thus:

“We are all basically selfish, driven by fear of death and the hope of personal gain. All of us seek power over others, whether we realise this or not…if society broke down and you had to live in a state of nature’, without laws or anyone with the power to back them up, you, like everyone else, would steal and murder when necessary. At least, you’d have to do that if you wanted to carry on living. In a world of scarce resources, particularly if you were struggling to find food and water to survive, it could actually be rational to kill other people before they killed you… life outside society would be ‘solitary, poor, nasty, brutish, and short”.

Attempting to find a solution to this undesirable situation, Hobbes was of the view that some powerful individuals or parliaments be put in charge. The individuals in the state of nature would have to enter into a “social contract”, an agreement to give up some of their dangerous freedoms for the sake of safety. Without what he called a “sovereign”, life would be a kind of hell. This sovereign would be given the right to inflict severe punishment on anyone who stepped out of line. He maintained that laws are no good if there is not someone or something strong enough to make everyone follow them. This of course suggests an idea of the need of law and a government to implement them.

The obvious points therein are that, for there to be a democratic setting, there must be rule of law to control the exercise of the powers conferred on those in authority. Also, to prevent impunity, the rule of law must be fully observed. This is because, as stated above, human beings have the tendency to abuse powers and infringe on the rights of others if not restrained. This was aptly captured in the expression of the English Historian, Lord Acton in the following words:

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”

It is therefore, the existence of law and the enforcement of same, by meting out appropriate punishment in cases of deviant behaviours, that guarantees sanity and prevents impunity in any democratic setting. Thus, where there is failure to enforce the laws and ensure that deterrent is achieved, impunity is bound to occur. This was aptly captured by Louis Joinet (United Nations Special Rapporteur) in the following words:

“impunity is a consequence of the —failure of states to meet their obligations, investigate violations and take appropriate measures (against) perpetrators, particularly in the area of justice, to ensure that they are prosecuted, tried and duly punished; to provide the victims with effective remedies and reparation for the injuries suffered, and to take steps to prevent any recurrence of such violation”.

Though Hobbs holds a critical and radical view of the nature of human beings, he is nonetheless correct about the outlook of life outside the society when law is absent in the society. Therefore, to prevent the scenario painted by Hobbes, law becomes an indispensable tool in preventing impunity and maintaining sanity in a democratic setting.

In fact, law is a tool for social engineering as has been rightly and strongly opinionated by a renowned philosopher, Roscoe Pounds. According to Pounds, “law as a tool for social engineering is based on the notion that laws are used as a means to shape society and regulate people’s behaviour”. Accordingly, to him, “law is social engineering which means that where law is enacted, it curtails the selfish interest of man for the common benefit of the larger society.

In Nigeria, the need to construct a better society through the instrumentality of law has been duly recognised by the Section 15 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. This section provides for the total condemnation and abolishment of all corrupt practices and abuse of power.

Abuse of power is impunity, the dangerous trend of the effect of abuse of power is what the grundnorm seek to avoid and so the necessity for the provision, so to guarantee a healthy society. The Constitution provides thus:

“The state shall abolish all corrupt practices and abuse of power”. 

As beautiful as this provision appears, it is nevertheless not intended to be pursued seriously. This is because, the said section is contained under Chapter II of the Constitution of Federal Republic of Nigeria as amended notoriously tagged: “Fundamental Objectives and Directive Principles of State Policy” and by extension not justiciable or simply put, no court of law in Nigeria is empowered to enforce it. Section 6 (6)(c) of the Constitution of Federal Republic of Nigeria as amended clearly states thus:

“The judicial powers vested in accordance with the foregoing provisions of this section

(c) shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and Directive Principles of state Policy set out in Chapter II of this Constitution; and..”

The effect of Section 6 (6) (c) on Section 15 (5) is therefore, that though the state has a legal obligation to stamp out corruption and impunity, the same Constitution in another full breadth absolves them of that responsibility. To me it appears as a give and take back provision, which does not really present Nigeria as a country that is honestly ready to abolish all forms of impunity.

Severally, the courts have always held that chapter II of the Constitution is unenforceable. For example in Attorney-General of Ondo State v Attorney-General of the Federation (2002) 9NWLR (Pt. 772) and Okogie v Attorney-General of Lagos State (1981) NCLR 2187, the court has consistently echoed that Section 6(6)(c) of the Constitution operate to oust the court of any power to entertain any matter with regard to Chapter II of the Constitution.

The said section bears semblance with military ouster clauses or decrees, this is not unconnected to the fact the Nigeria’s 1999 Constitution is a brainchild of successive military government, which would go all the length to ensure that they are not subject to accountability. That itself is impunity even in a democratic setting. 

As rightly stated by the Supreme Court in Attorney-General of the Federation v Sode (1990) NWLR (Pt. 128) per Belgore JSC: 

“The purport of ouster provision in decrees is clear. That is, no court of law or tribunal should look into any matter the courts are so prevented from looking into. This is the peculiarity of the military regime, which makes the constitution subjected to their decrees…the original sources of jurisdiction is the constitution itself; but when a military regime by a degree promulgated outs jurisdiction or nay other law, the decree must be followed”. (To be continued).

THOUGHT FOR THE WEEK

 “Law; an ordinance of reason for the common good, made by him who has care of the community.” (Thomas Aquinas)