By Segun Gbadegesin
From our discussion of values and morals and a nation in troubled times last week, today we move to the role of law, arguably the all-embracing and all-encompassing of all social institutions in the matter of social control and behavior regulation. It is also the most effective, though effectiveness, as we know, does not necessarily confer validity. My focus here is on law and its enforcement. Next week, we will discuss justice.
In an ideal social setting, moral values will effectively regulate social conduct. But it is futile for society to base its expectations on an ideal setting which may never be real. Therefore, with the authoritative power of the state, laws are promulgated, presumably derived from, and founded upon, those moral values. Hence the belief that law and morality are inextricably linked, with the latter providing justification for the former.
The claims in the last paragraph are weighty. First, on the assumed authoritative power of the state, many would object that the state uses raw power with no valid authority. This is especially true in the case of tyrants who identify the state with themselves. The presumption of the claim is that the people voluntarily grant authority to the state to govern them. Based on this authority, the state makes laws. But where this is not the case, as in a military takeover of state power, or in flagrantly rigged democratic elections, that authority is lacking and, therefore, the validity of law is suspect.
The second assumption in the claim above is that the promulgated laws are derived from moral values and principles upheld by society and therefore law and morality as indissolubly linked. The assumption here relies on the goodness of the lawmakers; that they are consumed by altruism; that they are epitomes of moral courage; and that they are motivated only by patriotic zeal and the common good.
This assumption is Rousseauean in nature. The idealist philosopher conceptualized a legislative forum in which each legislator rids him or herself of all the cravings of self-interest, focusing solely on the common good as he or she consults the general will for the right answer to a legislative question: what law is good for the common good in this situation? Won’t it be great if this is how legislation proceeds? But the reality of our experience is far different. Self-interest and group interest have been the dominant motivations in most legislatures across the world, this nation included.
Let us start with the foundational instrument. No one can deny the influence of group interest, if not individual interest, on the deliberations that led to the adoption of the various constitutions up until the 1960 independence and 1963 republican constitutions. At first, it was the interest of the colonizers that was dominant. Then, as the nationalist struggle intensified, primordial, rather than national interest supervened. Argument over the most desirable system of government for a multi-ethnic, indeed, multi-national state like ours often degenerated into name-calling with unitarists attacking federalists as tribalists, using the language of the colonizers.
In the end, however, reason prevailed and former antagonists and combatants adopted the federal system through negotiation, having recognized the good of the system for each of their groups. This is the logic of negotiation in a quasi-state of nature when the state had not yet existed and, therefore, there was no basis for thinking about the good of what was nonexistent in the negotiation for its existence. Each individual or group had to factor in its own interest. That the federal system was adopted meant that each group found it good for its wellbeing in the new state.
Having adopted a system, federalism in this case, with all the details of its working for the good of each group, any departure from the agreed upon structure should normally be invalid unless the original agreement is renegotiated by the different parties. A unilateral adoption of a different structure is therefore problematic from legal and moral perspectives.
Yet that was what happened on two levels in 1966. First level was the military takeover of government, which was an extraordinarily unconstitutional usurpation of power. Second level was the egregious and unilateral abandonment of the federal structure for the unitary structure which just happened to be conveniently consistent with the military’s command structure. This was the original sin for which there has been no repentance or restoration. By itself, it accounts for an unquantifiable proportion of the crisis in the nation’s troubled times.
This reasoning is not difficult to validate. The founders knew that the Constitution was the foundation, which if faulty or wobbly, makes future trouble inevitable. Their thought was sound and was the basis for the new nation moving forward. Suddenly, military self-interest and command structure prevailed, and the basis of the original agreement was rendered null and void. But if the military was wrong, what about the civilians that subsequently took over from them? What have they done to redress the anomaly?
Let us assume that there was a genuine belief by some groups that the structure agreed upon at the inception of the new nation was no longer desirable. What fairness dictates is to invite other groups to embark on a new round of negotiation that takes into account new realities. If the consensus is for a new structure, so be it. But no such renegotiation has been initiated talk less of a consensus. However, some groups, thinking solely about their group interests, and ignoring the interest of others, have simply imposed a new structure on every other group. How is there not to be trouble? This is where the nation is. The common good of the nation has been sidelined and truncated for sectional interests.
The Psalmist’s rhetorical question is apt: If the foundations are destroyed, what can the righteous do? A logically sound answer is that the righteous ones, like Nehemiah of old, have a duty to mobilize others to rebuild. Again, unfortunately, this has apparently not happened or any such efforts have been inadequate.
Tragically, the collapse of the foundation also appears to have hastened the gradual demise of objective lawmaking. It is in legislative activities that the Rousseauean ideal actually makes sense. For once a political association in the form of a state has been formed, then every member must see themselves as an integral part of the body. They must therefore look at legislations in terms of the benefit and good of the state. Self-centered or sectional legislations are to be avoided because they will ultimately lead to trouble. Again, it is not difficult to see that this principle has not been adequately followed in our legislative activities in which the question: “what’s in it for me, my party, or my corner of the nation?” is prioritized over “what’s the good of the nation?” Examples abound.
We are embarrassingly and regrettably described as a lawless people. In many cases, this is obviously true: driving against traffic, running red light, disobeying sanitation laws and regulations meant for our protection, etc. But if you give violators of such laws opportunity for defence or explanation, they’d have plenty to say. All laws are burdensome, but some are unjustifiably so. There are laws that don’t take into consideration the conditions that citizens are going through. Some laws lack moral validity because they place sectional interests above national interest.
It is fair to observe, then, that we are not inherently a lawless people. A simple way to confirm this is to observe our nationals when they pay visits to or reside in other countries, compared to how they behave inside their own country. The difference can be explained in various ways. They aren’t happy with the system. They suffer and blame it on the system.
Perhaps, however, the most serious source of our lawlessness is the inadequacy of our enforcement infrastructure with a grossly deficient police to population ratio. The debate about how best to correct this deficiency has been a harrowing experience since 1999. Hopefully, one day reason will prevail and law and its enforcement will take its proper place in a well-ordered society.
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