B. Movimientos Campesinos como Acción Social Efectiva
3.6 Critica al Modelo Conceptual de Gestión del Conocimiento
Customary and Islamic legal systems existed in the territories which later formed Nigeria long before colonialism. The British on their advent introduced English law in the Colony of Lagos,2 established a Supreme Court and empowered it3to apply and supervise the application of native law and custom.4 However, such native law and custom shall not be “repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any enactment of the Colonial Legislature” (s. 19 of Supreme Court Ordinance No. 4 of 1876).5No statutory customary courts were created and existing indigenous courts were unimpaired. Before 1914, there were two Protectorates6in each of which English law and native law and custom applied side by side. In 1914, the Protectorates were merged to create Nigeria. Application of the dual laws was extended to the new Nigeria.
At independence in 1960, Nigeria started off with the Independence Constitution of 1960 which provided for a Federal7Parliament and three Regional Houses of Assembly all of which were bi-cameral legislatures. Federal executive powers were vested in the Queen represented by a Governor-General (s. 78 [i] & [ii]). Regional executive powers lay with the Premiers (S. 80). Each Region and the Capital, Lagos, had its own set of courts. At the Federal level was a Federal Supreme Court from which appeals lay to the Privy Council (s. 104). English law together with validated native law and custom continued to apply.8
In 1963, Nigeria became a Republic giving birth to the Republican Constitution of 1963. That meant breaking away from the British royal connection. The powers of the Queen were taken over by a non-executive President and the
2Under Ordinance No. 3 of 1863 3Under Ordinance No. 11 of 1863
4Native law and custom was the name given to customary and Islamic legal systems.
5In 1945, public policy test was added for the validity of native law and custom through the Evidence Act, S.14 (3).
6The Colony and Protectorate of Southern Nigeria and the Protectorate of Northern Nigeria. 7Nigeria’s Federation of three Regions and Lagos as Capital was established by the Littleton Constitution of 1954 which followed the 1953 and 1954 London Conferences.
8Enabling statutory provisions were made. These were the Interpretation Act and the various High Court Laws of the Regions. English law consisted of the common law, doctrines of equity and statutes.
Parliamentary system was retained. By section 120 of the Constitution, appeals to the Privy Council were abolished making the Supreme Court the highest court. In the same year, the Mid-Western Region was created.9
A military coup in January 1966 changed the legal order. The Constitution was partly suspended and partly modified under the Constitution (Suspension and Modification) Decree No. 1 of 1966. Parliament and Regional Legislatures were abolished. Powers to make law for Nigeria or any part thereof were now conferred on the Federal Military Government (S. 3 of Decree). Regional Premiers were replaced with Military Governors who could make law (in the form of edicts) on matters in the concurrent list of the Constitution. Executive powers were vested on the Head of the Federal Government with provision to delegate functions within a Region on the Governor of the Region (s. 7).
At first, judicial attitude was swinging as to which, between the Constitution and the Decree, was the supreme law.10The Supreme Court inLakanmi & Ola v.
Attorney-General Western State & Ors11settled the issue when it held that the
coup did not affect the supremacy of the Constitution. But the Government nullified this decision through its Federal Military Government (Supremacy and Enforcement of Powers) Decree12which asserted that the coup was a revolution which changed Nigeria’s legal order placing the Decree above the Constitution. On 1stOctober 1979, the military handed over power to elected civilians and the 1979 Constitution came into force. By section 1(1) thereof, the Constitution was supreme and its provisions had binding force on all authorities and persons throughout the country. If any other law was inconsistent with its provisions, the Constitution shall prevail and that other law shall be void to the extent of the inconsistency (s. 1 [3]). Nigeria was now a Federation of 19 states with a
9It was created by the Mid-Western Region Act of 1963.
10E.g. see Ogunlesi & Ors. V. A.G. of the Federation(1970) LD/28/69 andState v. Nwoga &
Okoye(1966) Suit No. E/34C/66 for contradictory decisions (Ojo in Elias, ed., 1972: 18; Ojo 1987: 19).
11(1971) 1 U.I.L.R. 201 12No. 28 of 1970
Federal Capital Territory (S. 2 [1], [2] & 3 [1]).13The application of hybrid laws continued with the States generally retaining the enabling provisions applied by the Regions.14
The Parliamentary system was replaced with an executive Presidential system (S. 122 [1] & [2]. Law-making powers at federal level were vested in a federal bi- cameral legislative body, the National Assembly, and at the state level in the House of Assembly (s. 4).15 Federal executive powers were vested in the President (S. 5 [1] [a]) while executive powers in a State were vested in the Governor of that State (S. 5 [2] [a]). Judicial powers of the Federation were vested in the superior courts of record established by the Constitution (S. S. 6 [1]). Judicial powers of a State were vested in courts established for the State either by the Constitution or under it (S. 6 [2]). The hybridity was given recognition under the Constitution. There were customary and Islamic courts as well as conventional courts each applying the appropriate laws (ss. 217 [2] [b], 240, 242 [1] & [2], 245, 247 [1]).
The military returned to power on 31 December 1983. Provisions of the 1979 Constitution not compatible with military rule were suspended and others modified under the Constitution (Suspension and Modification) Decree No. 1 of 1984. Provisions relating to all elective and appointed offices and political parties were suspended.16Legislative competence at Federal level reverted to the Federal Military government (S. 2 [1] of the Decree); and at State level to Military Governors to a limited extent.17A Decree or Edict needed not to be in writing (S. 3 [1], [2] & [3]). Save for the provision ousting their competence to entertain any question as to the validity of any Decree or Edict (s. 5), courts of
13Already, the four Regions had been split into 12 States in 1967 and in 1976 7 more States and a Federal Capital Territory in Abuja were created.
14For instance, section 34 High Court Law, Laws of Kano State Vol. 2, 1991 replicated a similar section in the High Court Law, Laws of Northern Nigeria 1963.
15The National Assembly makes laws exclusively on matters in the Exclusive Legislative List of the Constitution. It could also legislate on matters included in the Concurrent Legislative List. The State Houses of Assembly could legislate for their State or any part thereof on any matter not included in the Exclusive List and on matters included in the Concurrent Legislative List of the Constitution.
16See Schedule 1 of the Decree for details.
17Military Governors could only legislate by way of Edicts on matters within Concurrent Legislative List with the prior consent of the Federal Military Government.
law were left intact. Customary and Islamic laws continued to apply on civil matters. Executive authority of the country was vested in the Head of the Federal Military Government which he might delegate to a Military Governor when such executive functions fell within his State (s. 6). This regime was unequivocal in asserting the supremacy of the Decree by promulgating the Federal Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984 which provided that the event of 31 December 1983 was a revolution creating a new legal order and giving the regime unlimited legislative powers. A palace coup took place in August 1985. The Decree continued to prevail and all normal democratic structures remained abolished.18Customary and Islamic laws continued to apply like before. The new regime had a transition programme but it failed and a civilian Interim National Government replaced it in August 1993. The military returned to power again in November 1993 and civil rule was restored only in May 1999 under the 1999 Constitution. Nigeria is now a Federal Republic with 36 States, 774 Local Governments and a Federal Capital Territory in Abuja.
The 1999 Constitution is the supreme law of the land (s. 1 [1], [2] & [3]). Legislative power is conferred on the National Assembly at the federal level and on the House of Assembly at state level (s. 4). Matters within the exclusive legislative list of the Constitution like defence, currency and mineral resources are exclusively legislated by the National Assembly. Matters on the concurrent list like education, health and agriculture could be legislated on by both legislatures. Federal executive power is vested in the President and state executive power is vested in the Governor of the state. Both of them could delegate the power to their lieutenants (Vice President or Ministers; Deputy Governor or Commissioners as the case may be). The Constitution established federal courts (ss. 230; 237; 249; 255) and state courts (s. 270) and vested Federal judicial powers in the former and state judicial powers in the latter (s. 6).
18 The regime promulgated the Constitution (Suspension and Modification) (Amendment) Decree No. 17 of 1985 to amend the Constitution (Suspension and Modification) Decree No. 1 of 1984 in order to reflect the changes brought about by the coup.
Customary and Islamic laws are still applicable before various courts (Ss. 262 [1] & [2] [a]-[e]; 277 [1] & [2] [a]-[e]; 267; 282 [1]).
The sources of Nigerian law now are as follows:
i. English law - the common law, doctrines of equity and statutes;19 ii. Nigerian legislation - Acts, Laws and Bye-laws;
iii. Judicial precedent - Nigerian case law; and iv. Customary law (which includes Islamic law).
Customary law continues to apply subject to the validity tests.20It applies in civil matters and it is uncodified.21Existing laws such as Decrees and Edicts which are not inconsistent with the Constitution are saved and made applicable by the Constitution as if they are Acts or Laws as the case may be (s. 315 [1] [a] [b]). Fundamental issues such as separation of powers among the executive, the legislature and the judiciary; division of power among federal and state governments; citizenship, human rights, etc. are covered by the Constitution while specific matters are accommodated under various laws. Oil and other mineral resources fall within federal legislative competence though the Constitution too has made provision thereon pertaining to ownership.
This study does not see the hybridity of the legal system as a weakness. Nor does it see it as contributing to absence of rule of law in practice. The hybridity does not in any way affect the position of rule of law as proposed herein. This is because formal law has been the dominant law in Nigeria. Customary laws have been subordinate to it. They have been applying at personal levels while the rule of law has been in the domain of public administration. Thus they cannot be
19The statutes are limited to those which had general application in England and which were in force as at 1st January 1900. They do not include statutes enacted thereafter and are applicable subject to local law (Obilade 1979: 69-81). Common law and equity do not have time limit but they are only of persuasive influence to Nigerian courts.
20See for instance s. 34 High Court Law, Laws of Kano State Vol. 2, 1991.
21In 1999, some states in the North expanded the application of Islamic law to cover criminal matters. They codified into Laws the traditional Islamic penal laws pursuant to s. 36 (12) of the Constitution which prohibits trial or punishment under any unwritten law. By the codification, the laws now acquire the new status of Laws of the House of Assembly and are no longer customary.
invoked to explain absence of rule of law in practice. They may graduate into the public realm (as did Islamic criminal law in some Northern states) but cannot dabble into administrative spheres.
But that is not to suggest that the principles of rule of law are unknown to customary laws. Indeed rule of law principles could have universal application. No system of law would for instance object to the principle of the supremacy of law, or condone breach of public trust in the form of corruption. In fact it could be argued that it is the universality of these principles that led to their acceptance as forming part of the Constitution. The Constitution represents a common agreement among the various interests in the country thereby making it a binding and superior document over any other law. It applies throughout the country. The states do not have independent constitutions now.22Thus rule of law is not only applicable for the whole of Nigeria but it is also deemed acceptable throughout the country. We shall now turn to its principles.