Law & Legal

If there was any doubt that Nigeria is a failing state, the politics and pathology of the cow business now make it manifestly so. Nigeria is strutting towards a possible implosion on account of growing lawlessness. In spite of many years of denial, leading members of the ruling APC now concede the obvious: Nigeria is largely an ungoverned territory.

The governor of Kaduna State, recently at a national dialogue, pointedly described Nigeria as a lawless state. He pointed to the absence of the monopoly of violence which is definitive of a state. In Nigeria today, private individuals, especially, bandits and other criminals, are more in control of violence and able to use violence than governments, federal and state. The nation’s authorized governments are helpless and halfhearted while criminals are vehement and inspired. Kidnapping is slowly becoming the fastest-growing industry in Nigeria. The rumor is that the recent kidnapping of school children in Niger State has yielded N800m for the kidnappers. Billions are spent as ransom and hush money to bandits. Many state governments in northern Nigeria have now established formal protocols for dealing with bandits and killer herdsmen who virtually control significant parts of those states. We can say that the bandit, the kidnapper, and the killer herdsmen are the fourth branch and level of government in Nigeria. It is now a lawless republic.

Typical of Nigeria rulership, there are now called to establish a federal agency for herdsmen who are mostly fingered in these gross criminalities. Hypocritical leaders are calling for amnesty to bandits. One state governor ludicrously argued that bandits are not all criminals and that many of them are tired and need financial bailouts. It looks like the dire prospect of disintegration and even civil war has not cured these misbegotten rulers of their wayward and mindless mentality. How on earth do you cure lawlessness with more incentive for lawlessness? We need to look to the resources of rule of law to deal with this vicious crisis. But first, we need to accurately diagnose the cause of the lawlessness.

The Role of Law and Criminal Illegality in Nigeria

The classical definition of a state is from the sociologist, Max Weber, who argued that a state must have a monopoly of violence within a defined territory. All modern states secure their legitimacy by justifying why they should exercise complete monopoly of violence through mechanisms of political accountability. But they demonstrate their effectiveness by actually taking control of violence and ensuring that there is no private violence without the authorization of law. This is the notion of the rule of law. Max Weber showed how law creates the modern bureaucracy and modern society. Without law what we have is the rule of men. The rule of men is an unstable rule as it predisposes to continuing violence of one against the other. This has been the perspective of liberal legality right from Thomas Hobbes who showed graphically that except there is the Leviathan, which he presumed is the state authority, human society will be ‘war of everyone against everyone so that every person’s life in this natural state would be ‘solitary, poor, nasty, brutish and short’ (Leviathan chapter 13).

The institution of the rule of law relates to the management of violence. Constitutions and legislations regulate the use of violence by state and non-state actors. Constitutional governance is foremost an institutionalized form of restraint of violence in society. By locating the people as the sovereign, constitutional democracies legitimately put all violence in the hands of the people who entrust it to their representatives to use within procedures already established by law. Thus, constitutional governance domesticates violence in form of a rule of law.

In Nigeria, the 1999 Constitution proclaims the sovereignty of the people who provide for themselves the guarantees against wanton use of violence so as to promote “good government and welfare of all citizens on the principles of freedom, equality, and justice, and for the purpose of consolidating the unity of our people” (The Preamble to the 1999 Constitution). These guarantees are primarily in the fundamental human rights and other constraints to exercise of power in Chapters 2 and 4 of the 1999 Constitution. As the Supreme Court makes clear early in Ransome Kuti v. AG Federation (1985) NWLR Pt. 6 pages 211, these rights are fundamental because they predate the formation of the Nigerian state and cannot be derogated in the pursuit of public policy.

The constitution, therefore, prohibits the use of violence by state and non-state actors to take the life of any citizen (Section 33), destroy or forcefully take over a citizen’s property (section 43) and invade a person’s home or premises (section 37). Some of these guarantees can only be derogated under due process. This means that only the representatives of the people can reduce their protection for the public good.

These protections and guarantees abolish the use of private violence and limit the exercise of public violence. Where these guarantees do not exist or they exist but are unenforceable because of the reality of management of violence, the state has exited the rule of law state and entered a state of lawlessness. This is worse than a state of nature because under a state of nature, as Hobbes observes, there is equality of violence. But under a lawless state, there is an asymmetry of violence to the advantage of the criminals.

This is where Nigeria is right now. This is a foreshadow of state failure. This lawlessness is evidenced by the fact that governments are negotiating with bandits and kidnappers instead of arresting and prosecuting them. It is also evidenced by the fact that bandits and sundry criminals commingle with public officials such that you cannot distinguish one from the other. In that sense, you have entered the criminal state, a state whose leaders are, in the language of a Time columnist, “indistinguishable from its criminals”.

Why is Nigeria trapped in lawlessness? What does this lapse into lawlessness say about the role that law has played in promoting development in Nigeria? First, there are three factors driving criminality and lawlessness in Nigeria today. These are (1) widespread poverty, (2) pastoralism, and (3) collapse of rule of law institutions.

Widespread Poverty

The major cause of the rampant criminality is the collapse of livelihood support systems across the country.

Poverty is deep and widespread in Nigeria. The latest Nigeria Bureau of Statistics (NBS) survey reports that about 40% of Nigerians are extremely poor. This is not counting Borno State, where terrorist activities have destroyed all prospects of human development and cannot be accessed for the wellbeing surveys. By the World Bank estimation, by the end of 2022, more than 100 million Nigerians will live in extreme poverty. Income-based poverty assessment does not do justice to the state of deprivation in Nigeria. First, apart from income poverty, Nigeria has the least social protection scheme in West Africa. Second, the poor physical and social infrastructure in Nigeria means that life is nastier and more brutish than income figures reveal.

Oxfam, a global anti-poverty organization identified the misallocation of budgetary resources as one of the factors compounding the crisis of poverty. Because Nigerian governments are not making investments in projects and initiatives that promote economic and social wellbeing, many people are getting poorer and poorer. Pervasive poverty has induced many Nigerian youths to a life of criminality and has created a readymade environment for the recruitment of terrorists and bandits.

Pervasive poverty is a product of the failure of law reform. We can look to the successful Asian countries, especially East Asian countries. Their transition from dependence to independence involved comprehensive legal reform.

Many of these countries like South Korea, Japan, and China used laws to move their economies from the state of gross inequalities to more equality and literacy. They used the law to create equal opportunity economies that ensured there is no widespread poverty. China has removed millions from poverty by using laws to create entitlements and redistribute wealth from urban to rural and from rich to poor. These economies rejected neoliberalism and adopted pragmatic economics that focused on changing existing social institutions. The primary focus of this approach is agrarian reform, which ensures equitable holding on land and enhances household prosperity, and reduced income inequality.

Joe Studwell describes the process in his book, How Asia Works: Success and Failure in the World’s Most Dynamic Region and argues that “the evidence of what occurred in China, Japan, Korea, and Taiwan is powerful: good land policy, centered on egalitarian household farming set up the world’s most impressive post-war development stories”.

Nigeria took a different approach that deprived the rural people of their land resources and handed them to nobles through the instrument of the trusteeship of the state governor. The Land Use Act consolidated neo-feudalism, especially in northern Nigeria, and frustrated revolutionary pressures through conservative lawmaking. The entrenchment of mass poverty, a result of the conservative role of law is one of the drivers of the current lawlessness. Law reform has failed to recreate Nigeria from its triple heritage of feudalism, colonialism, and military dictatorship.

Another explanation of the legal reproduction and reification of poverty in Nigeria is located in the narrative of social and economic rights (otherwise called welfare rights) in Nigeria. Chapter 2 of the constitution provides for these rights in the form of Fundamental Objectives and Directive Principles of State Policies. Whereas Section 13 of the Constitution mandates every public official to comply with the provisions of these principles in public policy management, Section 6 of the same constitution prohibits judicial enforcement of claims founded on these rights. This has weakened their enforcement. These rights are critical to the wellbeing of the people; they directly address the problem of poverty. The Supreme Court, in trying to avoid the incoherence and resolve the contradiction, has argued that when these rights are enacted in a statute, they become judicially enforceable by virtue of the statute (see AG Ondo State v. Ag Federation (2002) 9 NWLR page 772; see also Okogie v. AG Lagos (1981) NCLR 2187 and the Indian case of Mangru v. Commissioners of Budge Bundee Municipality (1951) 87 CLR 369).

Interestingly, the National Assembly has been spectacularly remiss in enacting laws that incorporate these rights in legislation so as to make them enforceable for the benefit of Nigerian citizens. So, Nigerian citizens do not have the chance to access critical resources for social and economic wellbeing. By reducing these important rights that are invaluable to the fight against poverty merely aspirational, the Nigerian constitution reduced the possibility of creating and distributing prosperity fairly and widely amongst citizens.

Pastoralism

The major source of insecurity and instability today is the Fulani herdsmen. It is true that not all of these herders are involved in criminal activities or are engaging in raiding and killing farming communities. But even the very mode of pastoralism creates a conflict with a modern economy. The idea of people moving from place to place with cattle and grazing openly on fields may have made sense in a different world. But in a world defined by clear property rights, in a world where the imperatives of economic development mean that land needs to be fungible, pastoralism cannot continue. It is clear that pastoralism is somewhat definitive of many cultures in the world, including the Fulani. But the reality is that it is opposed to the structure and culture of the modern secular state.

Obviously, part of the expected role of law is to transform society to meet the challenges of a modern productive economy. Modernity is a contested concept as many see it as westernization in disguise. But clearly, the problem of legal reform in Nigeria is not that it rejects westernization or liberalization. The failure is that law reform is ineffective. Nigerian leaders have no rich understanding of how the law operates to create prosperity, entrench accountability, and manage diversities. The failure to boost agriculture, provide for the welfare of poor and deprived Fulanis and undermine neo-feudal relations through legal reform is the reason why pastoralism in its heinous and destabilizing form persists.

As Ann Seidman et al observed, “Development comprises an ongoing process of social change. Of necessity, the process requires institutional change appropriate to the circumstances that accompany it. By institution we mean no more – and no less – a repeated pattern of social behavior”. (Ann Seidman et, African Challenge: Using Law for Good Governance and Development (2007)).

Furthermore, I have argued elsewhere that “The failure of development in Nigeria can easily be described as the failure of law as a transformative discourse and practice. Law and legal reform are central to economic development and social transformation.

Divergent theories of economic development- from the modernist, dependency theory to the neo-liberal market reform theory- all affirm the importance of law and legal reform to economic development (See also Douglas Webb, “Legal System Reform and Private Sector Development” in Developing Countries in Economic Development, Investment and the Law and Hernando desoto, The Other Path: The Invisible Revolution in the Third World (1989).

The proper role of law in Nigeria would have reformed the institution of pastoralism to align with changing imperatives of development. This singular failure is the reason herders are leaving behind trails of blood across Nigeria and endangering the continuity of the Nigerian federation. As long as the institution of pastoralism is not reformed by banning open grazing and providing economic and social incentives for ranching, the trail of blood will continue, and Nigeria will end up a failed state. So, legal reform is to blame for the continuance of pastoralism instead of modern ranching.

Collapse of Rule of Law Institutions

Nigeria has the misfortune of undermining its rule of law institutions that would have countervailed its dangerous slide to instability. Right from independence, this practice of weakening rule of law institutions began.

It has continued. Before independence, minority ethnicities in Nigeria feared domination in a newly independent country. The colonial administration considered these fears substantial and established the Willinsk Commission to inquire into them and provide solutions. In 1958 the commission recommended amongst others the institution of the bill of rights as a response to the crisis of trust in the new federation. Thus, Nigeria became one of the earliest countries in Africa to domesticate international human rights in its 1960 Independence Constitution. Ever since Nigeria has continued to replicate these rights in all its constitution.

But sadly, Nigerian governments have continued to wantonly breach these provisions. Instead of entrenching the norms of citizenship rights into its state practices, the Nigerian state has delighted in privatizing and ethnicizing state institutions. The civil war was a result of the failure to take seriously citizenship rights. Wole Soyinka noted how legal institutions were used to shut Igbos out of justice in the run-up to civil war. Those who killed Igbos were protected by legal authorities that should be prosecuting them. The lack of fairness in policing is a significant part of the history of lawlessness in Nigeria. Throughout military and civilian rules state policing power has been ineffective and biased.

Political theorists argue that an effective state is an autonomous state, a state that is not captured by any of the contending factors. The founding fathers of the US republic in the Federalist Papers argue that political stability requires that a republic manages to contend the tendency towards factions and state capture by contending factions. This threat is more with religiously and ethnically plural societies.

The legal framework of such societies should be solid as to withstand the pressure of competitive politics. Nigerian state institutions, especially its law enforcement institutions are established on quicksand; they lack the procedural integrity and normative constraints to be effective and fair.

In the matter of Fulani herdsmen and banditry, law enforcement institutions have been mostly complicit and ineffective in applying the law to restrain the violent impulses of the killing herdsmen. The centralization of policing has enhanced the ethnic capture of law enforcement and the growing ineffectiveness. By encasing policing in the exclusive legislative and executive competence of the federal government in the 2nd Schedule to Part One of the Constitution (a federal government that has little incentive for the impartial administration of justice), the Nigerian constitution has further damaged the prospects of effective and fair policing.

It is important to note that the Willinsk Commission considered the issue of federal versus regional police force for the emergent Nigerian democratic state and recommended that central police stay for three years to enable proper protocols for state police. Three years have become decades and Nigeria hurts under a comprehensive inefficient and manipulated police force.

But the biggest failure of rule of law institutions is in the failure of state governments to trigger their Sections 4 and 5 powers in the constitution to regulate the business of cattle rearing. Many of these governments misread the constitution as prohibiting them from getting involved in managing security. That is not true. In spite of its inelegance, the Exclusive List does not stop state governments from making laws that criminalize some commercial transactions or provide fair and equally applied standards for all forms of commencing and establishing agencies that will manage violent transactions and commerce in their states. By failing to respond to the threat of pastoralism through effective regulations, these states failed in their constitutional responsibility. Benue State is a shining example of the rule of law response required to deal with the criminality and conflict associated with pastoralism in Nigeria.

The Rule of Law and Management of Pastoralism and Banditry:

The rule of law failed in Nigeria because of a poor understanding of the role of law.

This poor understanding has both ideological and practical causes. On the ideological cause, Nigeria is a conservative country and wastes its transformative moments because it always prefers to preserve traditional privileges even at the high costs of poverty and instability. Since independence, Nigerian leaders have failed to apply the law to recreate social and economic conditions of social life. We have rather used law to preserve primordial, neo-feudal structures that reinforce poverty and conflict. This tendency has been most in the north of Nigeria; hence we have more poverty and conflicts in that part of Nigeria.

The practical aspect of the failure of rule of law is in its instrumentalization.

Nigerian laws have either been incompetently drafted or badly implemented such that even when they hold transformative promise, they have always failed to deliver. This problem is not peculiar to Nigeria. It is a problem of the Third World, especially in Africa where skills of legal research and drafting are very deficient. Incompetently drafted law is a result of the bad sociology of law. How does the law affect social behavior? What creates the problematic behavior that the law wants to change? What social practices provide an incentive for such problematic behavior and how would law effectively address these social practices? Think about agricultural transformation in Nigeria. The sociological insights required to enact a law that has real potential to transform the crisis would require both ideological and epistemological resources that are not readily available to typical lawmakers and their supporting cast.

Rule of law resolution of the present crisis of lawlessness is not simply a matter of new law. It is not a matter of creating a new agency for Fulani herdsmen. It is more demanding than that. It begins with a conversation about the kind of society we want to become. Do we want to be a secular, democratic state that guarantees to all citizens full citizenship rights irrespective of ethnic or religious identity? Do we want to be a theocratic, neo-feudal state that will preserve cultural legacies even at the cost of human lives and common prosperity; a state that operates on the logic of unequal relations, on privileges, and prerogatives? When we have this conversation, probably through a national conference or syndicated dialogues, we can then determine the role of law. The role of law is prior to the rule of law. The role of law tells us how the law will transform our society. The rule of law tells us that we will be a republic of rules and not of men; that the same law will bind everyone, and the law will protect our natural rights and freedoms.

Conclusion:

It is obvious that Nigeria faces a grave crisis arising from the failure of its rule of law institutions. This failure has been a long-running one. But it has been intensified under the present administration because of its ethnic and religious biases. This government’s failure to effectively prevent criminality by Fulani herdsmen and to prosecute them resembles the failure of the Gowon government in the 1960s. A failure that partly led to the civil war, as noted by Wole Soyinka in his book, The Man Died. A failure that is not episodic but deriving from a conservative ideology that misuses the instrument of law to preserve privilege instead of undermining hegemony.

A rule of law approach to solving the crisis of herdsmen violence, banditry, and kidnapping requires that we reduce ungoverned territories in Nigeria. Nigeria is largely an ungoverned territory. Our state governors are engrossed in politics and not utilizing available constitutional powers to address the problems of social life. The challenges of modernity require an administrative state, a regulatory state; a state that utilizes the instrumentalities of administrative law to manage risks and change social behaviors. With the advances in behavioral science, law and economics, and decision science, we have a better understanding of how people behave alone and in groups. We need to deplore these insights to construct structures of social interactions that create a stable environment for the pursuit of liberty, freedom, and happiness for diverse people.

Dr. Sam Amadi is a Associate Professor of Law at Baze University