- Post 02 December 2009
- Last Updated on 02 December 2009
- By Akin Oyebode
BY AKIN OYEBODE**
“To the best of my knowledge and experience, there is nothing like equality before the law at least, not the way the law is operated today. It is nothing but a myth created by our political rulers and the lawyers to give cold comfort to the “common man”, so that they, our political rulers and the lawyers, can have a peace of mind…” (Akinola Aguda, The Common Man and the Common Law)
Hardly has any idea thrown up greater polemic than that of equality. The notion that we were all created equal by our Maker despite the inequality which has attended human affairs across the ages has ignited considerable worry and disquiet so much so that it is today most difficult, if not impossible to contemplate goings-on in the world without paying attention to the status, property or circumstance of the actors. The lottery of life would seem to have become a decisive factor in shaping the perception and attitudes of people in relation to their existence, the choices they make and their conclusions regarding they way and manner in which they are governed.
Indeed, it is no exaggeration to aver that human history has been one of the march towards greater equality among society’s members. While those elements of society that profit from their positions of power and privilege would resist change and fight for retention of the advantages accruing to them as a result of their positions, the under-privileged and disadvantaged, on the other hand, would continue to demand a change in the status quo and dream of a new society which would herald equality of status and opportunity.
The ruling class is, inevitably, caught in the vortex of these competing claims and the choices it makes in terms of the laws it enacts expose its class character, sympathies and antipathy. Despite all pretences to the contrary, the law is, in most cases, not an impartial, neutral arbiter in the unending contestations that occur in society but a veritable instrument of class domination and hegemony. Accordingly, the way and manner matters affecting the vast majority of the people are treated goes a long way in exposing the sensibilities of the powers-that-be in relation to the urgent issues of the day. In other words, the question of justice is an important and relevant one in terms of both equality and access and no meaningful progress can be made by any society that treats it with askance.
To the extent that Nigeria is still very much a transitional society in spite of its nearly fifty years of independent existence, we are still faced with the issue of striking a consensus regarding basic issues of our existence, particularly the ground rules of both our inter-personal relations and group dynamics. Even the operating constitution lacks legitimacy and is being wheeled, as we speak, to the operating theatre for much needed fundamental surgery. In such a situation, remarks on equality before the law, justice or indeed any other political or social issue would, at best, be only tentative. Yet, we can always envisage the best case scenario, expecting that all will be well in confronting the life and times of equality before the law in Nigeria. But first, perhaps we need to make a detour to the basics in terms of jurisprudence in order to set the stage for our interrogation of the old question of equality before the law.
Equality as a Condition of Justice Re-visited
It should be stated at the outset that the concept of equality is relatively novel in western thinking about law and justice. While the Afro-Asian antecedents of natural law rising out of Egypt, Mesopotamia, India and China were unabashedly sectarian and non-egalitarian in terms of their notions of law and justice in consequence of the class character of their slave-owning and theocratic socio-economic formations, the equally slave-owning societies of ancient Greece and Rome were, however, compelled to rationalize the prevalent social inequality of the age. Equality was limited to the slave-owning class while horrendous sanctions were provided for infractions by the enslaved class vis-à-vis the slave-owning class. Thus, Plato could speak of a republic controlled by the philosopher-king while Aristotle could, without any compunction, declare that justice was treating equals equally and unequals unequally. To the ancients, justice would be attained if each did what naturally pertained to each. Although the Stoics were later to grant concessions to the universality of love and the brotherhood of man, arising out of the rationality of the human species, the differentiation of men on the basis of class lingered on almost inexorably.
Admittedly the notion of equality can be considered as a thread that has run across western legal thought from Plato and Aristotle right up to St. Thomas Aquinas, it was in the social contract theories of the 17th and 18th centuries, heralding the transition of Europe from the feudal age to the dictatorship of the bourgeoisie that the concept of equality found its highest resonance. The tricolor of liberte, egalite and fraternite which formed the leitmotif for the French revolution celebrated the equal rights of all Frenchmen as enunciated in the Declaration of the Rights of Man and the Citizen of 1789. While the English would like to stake an even greater claim to proprietorship of egalitarian values through invoking the Magna Carta of 1215, the retention of feudal traditions in their constitutional framework right up to the present time would seem to have cast a pall somewhat on that claim. A monarchy, even if a constitutional one, would be hard put to espouse full and true equality of the human race, more so a colonialist and imperialist power. Besides, women, it must be remembered, were for a long time denied the vote and membership of exclusive clubs as well as admission into the legal profession, despite all the claim to egalitarianism in both England and even the United States. Accordingly, it was only after the adoption of the Bogota Declaration as well as the UN Declaration of Human Rights of 1948 that the concept of equality before the law as a normative standard can be said to have attained a truly universal profile.
Nevertheless, it should be stated that the European Convention on Human Rights and Fundamental Freedoms of 1950 went a long way in concretizing the notion of equality before the law, especially with the establishment of the Council of Europe and later, the European Court of Justice and European Court of Human Rights as well as other bodies aimed and accelerating European integration. The common world-view among the European people and their wide colonial experience assisted in exporting the notion of equality under the law and other legal concepts to far-flung corners of the world, even if it was anathema to speak of equality between colonizer and the colonized.
For us in Africa, existing within the fragile nation-states created by colonialism, it has been an uphill task to entrench and realize the somewhat novel concept of equality before the law on account of the failure by what Claude Ake characterized as the ‘inheritance elite’ to internalize and effectuate many of these European ideas. The imperfections of implementing these alien concepts had been a feature of the legal culture of many post-colonial states. The difficulties of establishing the pre-requisites for the implementation of concepts such as equality before the law in the newly-independent countries like Nigeria are pretty well-known. However, they need to be approached in the context of the general problematic of the efficacy of legal concepts.
The Elusive Notion of Equality before the Law
The ascendancy of free enterprise capitalism, symbolized by individual free will and auto-determinism such that homo economicus makes his bed as he wants and lies on it accordingly or, as the French philosopher, Montesquieu had observed while speaking of England, everyone had the right to go to heaven the way he wants, all necessitated the efflorescence of the notion of equality before the law. However, equality before the law is, in reality, an aspect of formal justice, that is to say, a presumption of equality of status, which discounts factual inequality in property ownership, location in the scheme of production, distribution and exchange of goods and services, birth, level of education, state of health, etc. This is epitomized by the Greek goddess of justice, Themis, whose figurine adorns our court-houses, blind-folded and bearing a sword on her right hand and scales on the left. Thus, equality in the market-place corresponds with equality in the court-house.
However, formal equality is blunted by inequality in bargaining power and social circumstance which, in a dog-eat-dog, beggar-thy-neighbour situation puts everyone for himself while the devil takes the hindermost. It is for this reason that some have questioned the assumptions of equality before the law and suggested that the lady of justice should, perhaps, from time to time, peep through her blind-fold in order to acknowledge the inequality of litigants and tilt the scales of justice a little bit in order to compensate for the material inequality of the under-privileged. For, in a market rigged in favour of the rich, powerful and the famous, it is idle talk to speak of equality as, for example, between the landlord and tenant, car-owner and driver or factory-owner and his workers.
Not only do the wealthy have access to the most skilled and expensive lawyers in the land while the poor have to make do with cheap and relatively inexperienced counsel, there is all manner of protection and escape for the highly-heeled such as plea bargaining, suspended sentences, option of fine, caution and discharge, etc. while the poor and disadvantaged face the rigours of full trial, higher standards of proof, inability to procure bail, harsh jail terms, etc. Where and when they are even fortunate to be defended by legal aid volunteers, as Robert Lefcourt once observed, the accused usually becomes a victim of a decadent system that merely compels defence counsel to “give the final twist of the knife to a person whose guilt is predetermined by his class…”
The inability of law to afford equal protection to society’s members has, undoubtedly, eroded its legitimacy. To the extent that law exercises an integrative function, to that extent would law have to be more daring, inclusive and protective of the needs and interests of the underprivileged and disadvantaged members of society. The conception of law as a mere technical exercise of application of rules in ordering interaction among people must be complemented by an acknowledgement of the existential circumstances of individuals approaching the law for resolution of their problems. The alienation of the people from the legal process is apt to engender resort to self-help, if not indeed collapse of society as we know it. Accordingly, the ruling class must, as a matter of self-interest, ensure that law evinces empathy and compassion for the interests of the preponderant majority of the population in order for it to sustain its vigour and relevance in the scheme of things.
Equality Before the Law in Nigeria : Myth or Reality?
It is self-evident that Nigeria is a divided society. It is divided along ethnic, cultural, linguistic and religious lines. However, the most potent division is that of class, that is to say, the gulf between the rich and the poor. While some might talk of the rural-urban continuum or division along party lines, the dichotomy of property ownership and location in the production process resonates more than all else in the quantum of rights which each possesses as well as the ability to ventilate grievances within the formal dispute settlement framework. Yet, as Chief Awolowo was wont to observe, God so loved the poor that He made them more in number than the rich. So, we must pose the question, “How much reprieve actually exists for the poor within the Nigerian legal system?”
The first point that needs be made is that Nigeria is party to all the relevant international instruments relating to equality before the law-the UN Charter, Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, International Covenant on Social, Economic and Cultural Rights, the African Charter on Human and People’s Rights, etc. More important, the extant Nigerian Constitution loudly proclaims the equality of all Nigerians: “[E]very citizen shall have equality of rights, obligations and opportunities before the law.” (s. 17(2)(a)).
Although the provision above is contained in Chapter II of the Constitution regarding Fundamental Objectives and Directive Principles of State Policy, a non-justiciable part of the Constitution, when read with ss. 36 and 42 of the same Constitution, concerning the right to fair hearing and right to freedom from discrimination, respectively, it can be stated with some timbre that equality before the law is well-grounded under the Nigerian legal system.
However, that is only as far as it goes. For, it is one thing for the law to make a proclamation but quite a different kettle of fish to effectuate such a provision. In Nigeria, aside from instances of unequal treatment, especially in relation, for example, to gender in the workplace, inheritance and discrimination of the girl-child, the criminal justice system evinces considerable selective enforcement, discriminatory application of bail procurement procedures and sundry unconscionable acts against the poor amounting almost to a conspiracy against the underclass. For example, there is hardly equality of the right to fair hearing which presupposes the right to counsel of one’s choice, a right which, to all intents and purposes, is determined by the size of one’s wallet. Nor can the illiterate and destitute really exercise his right to a day in court, in the event that he can marshal the guts to challenge infringement of his rights by say, an affluent tortfeasor, arrogant public official or wayward policeman who, more often than not, tends to act vis-a-vis other citizens with impunity.
In the heydays of Shariarization, it would be recalled that there were instances of amputation of hands of cow thieves while public officials accused of misappropriation of funds were let off lightly. Even more sensational was the sentencing of a prominent high public officer to only six months imprisonment for misappropriating 18 billion naira while a man who had stolen a few yams in order to quench his hunger was put away for three years.
Of course, one of the bastions of the legal system is that similar cases should be treated similarly but this does not appear to hold true where and when the accused is a veritable member of the dominated classes. The truth is that the badge of poverty constitutes tremendous disadvantage whenever members of the subordinate class have to confront the legal system. We might as well say that in Nigeria, equality before the law operates with a discount. One’s position in the social ladder has a great deal to do with the way one is treated within the public realm generally.
It is, of course, true that we have no choice in relation to circumstances of our birth, either the family into which we are born or place of birth. Yet, as soon as one is born, one is subsumed by existential realities which only some are able to transcend or they become, in most cases, prison walls from which escape is denied. In progressive societies, however, the rough edges of circumstances of birth are whittled down through the enunciation of policies that would guarantee for all equality of status and opportunity. In Nigeria, the opportunity, no doubt, exists for upward mobility along the social ladder as there are generally no caste restraints in matters such as choice of marriage partners, admission to the professions or entering into business partnerships. Even now when we are beginning to witness dynastic marriages, love is still, relatively speaking, blind and very much a matter of the heart. The problem, however, of ensuring equality before the law remains a utopian dream.
Towards an Egalitarian Society
The overarching importance and role of education as the catalyst of social transformation is universally acknowledged. This fact was very well appreciated by some of Nigeria’s policy-makers who had embarked on the free education programme as far back as 1955. At this juncture, it is apposite to salute the foresight of Chief Awolowo and the uncanny capabilities of today’s hero, Chief Adekunle Ajasin, who brought his prodigious intellect and depth of learning to bear on fashioning that programme which, ultimately, gave the people of the West, right from Ikeja to Asaba, the head start which they continue to enjoy in the scheme of things, even in contemporary Nigeria.
For me, equality under the law remains a sham for as long as majority of the people remain ignorant, credulous or superstitious. Education constitutes the great leveler and Nigeria has to realize this fact if the country is to achieve the greatness it so desperately seeks. Of course, in education as well as other areas of human endeavour, there is no free lunch. It calls for tremendous investment and cosiderable patience on account of the long gestation period before the positive effects of education can be recouped. Human capital development is the key and the powers-that-be should not stop at mouthing the shibboleth of rule of law or making empty noises about equality before the law but immediately commence laying the foundation for a truly egalitarian society by ensuring the education of Nigeria’s teeming masses.
As things are today, we have created an unhappy society where a microscopic minority monopolizes access to the good things of life while the vast majority of the population have to eke out an existence, condemned to live in the fringes of society, such that those derisively described by some commentators as street urchins are now threatening their better provided compatriots with kidnapping, armed robbery, rape and sundry acts of malfeasance, arising out of sheer frustration and disillusionment. As Dame Barbara Ward had warned, way back in 1962, if the rich refuse to listen to the cries of the poor, then the cries of the poor would deprive them of their sleep at night.
We have to admit that the majority of the poor and under-privileged have no confidence in the legal system. Their usual response to abuse of their rights and other privations is, “God dey!” while the more optimistic would intone, “E go better.” Meanwhile, the white garment churches and their General Overseers have taken over the role of the state by offering much needed respite and social therapy for the disconsolate and depressed. But how long things can continue this way remains a matter of speculation. While a more sanguine prognosis of the incipient class struggle in the country sees a social cataclysm which would bury the privileged classes or, in fact, occasion revolution or a reversion to the hobbesian state of nature, symptomatic of failed and failing societies a la Somalia, other prophets continue to foresee an Eldorado within the next eleven years when Nigeria would have sufficiently progressed to join the ranks of the 20 most advanced nations in the world!
However, whichever scenario is most appealing, it is hardly in doubt that Nigeria is currently at the precipice of a serious social crisis which no appeal to equality before the law can cure. It might well be true that this house has not totally collapsed but it is hardly in dispute that it is tottering. An intelligent ruling class would have apprehended the fact that desperate maladies warrant desperate cures and take much needed action in order to arrest the current drift towards social conflagration. Regrettably, however, our own Neros are contended with fiddling while Rome burns. There does not appear to be any apprehension of the gravity of the situation and those concerned seem so unconcerned about the necessity for a rescue mission.
In the final analysis, the destiny of the country is ours to make or mar. The fiftieth anniversary of our flag independence is dawning with not much to show for our ability to take charge of our affairs or improve the existential condition of the vast majority of the population. However, all is not lost. If there is a renewed emphasis on the basic needs of our people and the issue of infrastructure, especially power and roads can be fully addressed, then, perhaps, the prospects for matters such as equality before the law would be so much enhanced. Otherwise, apocalypse could well come knocking.
The human yearning for equality as a criterion for justice is age-long. In our own experience, there could not have been equality between colonizer and colonized. Accordingly, the concept of equality before the law, in reality, had to await political independence. Unfortunately, however, those that took over power did not sufficiently inculcate the traditions of liberal democracy, particularly the notion of equality before the law.
After nearly fifty years of self-government, equality before the law has remained very much merely a good point on paper, at least, in relation to the preponderant majority of the population. Accordingly, except, unless and only to the extent that the Nigerian state is ready to put in place measures that are aimed at ameliorating the existential conditions of the disadvantaged and under-privileged, the concept of equality before the law would remain very much a mirage.