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The concept of governance is undertaken by the concept of capacity building and requires a high dose of responsibilty.And for it to be succesful in a complex environment of the third world country ,equally requires a robust legal system -a lacuna not yet filled by developing country.
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The social theorists beginning from Karl Marx concept of
dialectical materialism , Jeremy Bentham utilitarian school , Emile Durkheim ’s
division of labour evolutionary evaluation and Max Weber ’s theory that
emphasizes the function of law in social planning and western economy and
cities to Blackstone ’s model that
defines law as a rule of action that is applied without prejudice to all
actions be it animate or inanimate
Rational or irrational and sees law generally as comprehensive self …….. It also regulates human behaviors the
totality of all rules operating in a given political society.Bentham sees law
as the total number of individual laws put together , Roscoe pound also of the same sociological school of
Jurisprudence refer to law as a social engineering .According to Femi Adeshina
Esq. in the paper delivered ‘Law as a dynamic instrument of social Engineering
’ presented to the Law society [faculty of law uni.of Lagos ;2001 ann.lect.]
.He affirmed that for law to be dynamic instrument of social engineering must
be relevant to social needs and aspirations and also must be proactive and
up-to-date .Social engineering by aim is to build an efficient structure that
grows peace faith and freedom in the long run in the society avoiding friction
discord violence and disunity .And the
essence of the law is the orderly arrangement of the society smoothening and
facilitating equity in the members interaction
from govt to the people and from people to the judiciary .
Origin Of Law and modern
evolution justice
The supposed origin of law in practically every civilization
has been traced to the cradle and its source of divine power ..Ordinarily such laws must be
just transparent and advocate of universal justice .Today most cultures in
modern times beginning from Europe to Africa to Asia, have abandoned
this belief and position while the classical Islamic scholars still never departed from their basic roots
of Shariah and belief in its immutability.
In some of the Islamic states modification had taken place on the basic framework of these laws through
new interpretation process by the kadis
and scholars which persisted into the 21st century .
The abandonment of divine vehicle indirectly promotes the
modern legal growth and development due to changing demand and technology surrounding economic development. To make the
matter worse divine laws enforces
slavery even though attempted to secure justice for the follower ship[i.e.
Israelites] .This Is divine absolutism .From divine absolutism , human angle to absolutism evolved and
especially after independence dictatorial regimes which took over government
from western powers were common all over
Africa .The successive decline that
followed was as a result of evolution
from human absolutism into modern liberalism .Learning a lesson from
history is particularly important .The School of Austrian positivism which
reached its climax in the Victorian
times and the degeneration of General
Hitler who overran Germany using the sovereignty of ruler hip to enforce
destructive tendencies later engaging in the bloodiest war in History . Writing and declaring in the ‘Economic and
Social Dimensions of Law ‘the late justice of Akinola Aguda noted that ‘what
can endure is government under the law
not government above law ’ .This attitude is well illustrated at the
1937 NAZI PARTY CONGRESS when he
demanded for blind obedience .His government had the power to jail people
without bringing them justice or without trial .I N France likewise before the
Revolution [1789] the nobility could disrespect or disregard ordinary law
imprison local subjects and inferiors without trials .In such climate
miscarriage of justice is a great concern still a huge burden in most
developing countries
THE
CHALLENGES FACING THE NIGERIAN LEGAL
SYSTEM
When we evaluate or assess the nature of the judiciary in
the country we are confronted with a lot of questions and poor antecedence of a moribund industry and visionless institution servicing and operating ineffectively
in a vision less and highly disorganized society .In the discharge of its statutory functions
these factors continue to reoccur over and over again . First Instance if we
look at the antecedence of Nigerian prison service we might need to start from there ,providing a cursory framework
from which to build . There is no doubt that in all ramification the condition
of colonial prison service in the country was far better than the present day
prison system .The prison service is ill
ventilated , ill equipped , badly furnished , highly filthy and above all
overcrowded –a status that had remained the same for several decades .Several
reports and findings have confirmed that the conditions of the prison service
and the inmates are very deplorable .That they have been built
with the intention to punish inmates .
In its memorandum to the Nigerian human rights commission
the C.L.O. tracing the imperial , repressive ,
ineffective and unjust antecedence of the Nigerian criminal justice
system had been regarded as ‘ the colonial legacy of repression upon which the
ministry was founded ’Poor training bad condition of service inadequate
motivation , manipulation of agencies by every successive government probably
to witchunt , blackmail or silence opposition
. Although a little burden might have been lifted with renaissance of
democracy but lives and property in the country are not exactly safer or better
than they were in the days of khaki or
uniformed men .The Nigerian law reform commission also concluded the colonial
structure was a far better arrangement
than what we see today especially in terms of reformation of inmates and all that
crap issue of welfare duly committed to legal process .Another factor, we may not be able to elaborate here is the philosophy of prisonation especially in the passage of sentences.
In the congestion of cases in the trial courts several problems had persisted
for decades .While the executive are to implement and execute all laws made by
the legislature , the judiciary according to the had been assigned the onerous
responsibilities of enforcing laws and settling of disputes among feuding
parties given power to adjudicate conflicts resolution consequent upon
interplay between tiers of govt , the people and the govt, the people and the
institutions so that justice is enforced appropriately and adequately as at
when due .By virtue of section 6 of the 1999 constitution of federal republic
of Nigeria judicial power are duly vested in the courts It specifically states that:
---that ‘the judicial powers of the federation shall be
vested in the courts ………[sect.1]
----that ‘the judicial powers of the state shall be vested
in the courts to which this section relates being courts established subject as
provided by the constitution’[sect.2]
Two classes of courts are provided for in the constitution
both the superior and the inferior courts of records with the former setting
judicial precedent for the inferior courts [sect.6-[3] and [5] a—j of the
constitution .While the following courts recognized as superior courts of
records are the Supreme courts of Nigeria ; the court of appeal ; federal high
court ; the high court of federal capital territory [FCT] Abuja ; State high
court ; Shariah court of Appeal of FCT Abuja ; States Shariah court of appeal ;
Customary court of appeal of the federal cap. territory ; States customary
courts ; and such other courts as may be approved to exercise jurisdiction on
matters conferred by constitution or national assembly ; the inferior courts
that may be established by states’ house of Assembly include the magistrate ;
customary courts ; Area and Upper Area courts .In the presentation by High
court of justice ,Katsina state at the commonwealth of legal education
Association conference in 2001 held in Abuja , the honorable justice I.M.M
Saulawa confirmed that ‘most remarkably , more than 75 % of all cases in the
Nigeria legal system are handled by these so called inferior courts ’all over the country.
In the ‘Congestion of cases in the Nigerian Courts :Problems
and Solutions ’ he further concluded : it is trite that the state social order
is fundamentally founded on the well cherished ideals of ‘freedom ’equality’
and ‘justice ’.Thus…….that in achieving and securing the ideal’s mentioned
there above the constitution further
provides that :
--‘2 in furtherance of the social order –
Every citizen shall
have EQUALITY OF RIGHTS ,obligations and opportunities before the law ;and
The independence ,
impartiality and integrity of the courts of law and easy accessibility shall be
secured and maintained ’
He also admitted that the extent to which government is
ready to protect fundamental human rights will determine the level of the
security and welfare that could be accorded the masses in the democratic regime
and its preparedness and capacity will go along way to grant redress where
those rights are violated .For this purpose access to speedy disposition
of cases giving attention to universally
acclaimed right of fair hearing should
constitutes basic legal roles in the trial courts and the system at large .
To reach a higher height the nation needs improved justice system .I believe this is the time to take the bull by the horn and probably go beyond our usual human rights ineffective struggle as privilege dictates . Bad as the situation may be reaction by stakeholders to the existing climate would determine the type of remedies required for sustainable economic growth .The issue of social justice is quite disturbing and absolutely disheartening and embarrassing especially in the economy via legal freedom .
To reach a higher height the nation needs improved justice system .I believe this is the time to take the bull by the horn and probably go beyond our usual human rights ineffective struggle as privilege dictates . Bad as the situation may be reaction by stakeholders to the existing climate would determine the type of remedies required for sustainable economic growth .The issue of social justice is quite disturbing and absolutely disheartening and embarrassing especially in the economy via legal freedom .
My point is exactly the common people who needed justice to live in a disorganized
society .To make the matter worse truly
the last hope of the masses really do not belong in the judiciary even
though they made us to believe otherwise .The nature of the judiciary in
Nigeria actually does not accommodate universal justice and especially challenges faced by the people in the
administration of justice .Therefore there are certain factors militating
against the discharge of its statutory functions deterring transparency and
equity in the trial courts .Factors such as the condition of prison system ; the
passage of sentences and sentencing processes
; in competency and integrity of professionals ; the cost of litigation
; corruption of judges; the philosophy of the prisonation or imprisonment ;independence of judiciary ; and the
congestion of court cases .Even though more attention had been paid to some of
these challenge with the renaissance of democracy the burden and huge gap in
the dispensation of justice however still remained .This hurdle may not be
resolved even long haul for a nation with the highest number of subjective
followers hip.
In the succeeding chapters while we explore the challenges
facing the Nigerian legal system we also access the law profession and the
industry generally and its strategic impact on the society .
THE EVOLUTION OF THE LAW: THE NIGERIAN PERSPECTIVES
Before getting down to the brass tacks I must say precisely the law by definition if we take
account the sociological school of law as opposed to the philosophy of natural
law and legal positivism is a pivotal resource
of social engineering ..The sociological approach to law which is a
better criteria is concerned primarily more with application of law than the
abstract definition .While the philosophers of legal positivism approach
defined law as an imperative idea a laid down rules-based asset of a law making
organization such as legislature in a politically organized atmosphere which
must be given force from the power of a sovereign .That law even if heaven will
fall whether good or bad must be implemented .According to Salmond it can be
regarded as all rules recognized and implemented in the courts of Justice
The social theorists beginning from Karl Marx concept of
dialectical materialism , Jeremy Bentham utilitarian school , Emile Durkheim ’s
division of labour evolutionary evaluation and Max Weber ’s theory that
emphasizes the function of law in social planning and western economy and
cities to Blackstone ’s model that
defines law as a rule of action that is applied without prejudice to all
actions be it animate or inanimate
Rational or irrational and sees law generally as comprehensive self …….. It also regulates human behaviors the
totality of all rules operating in a given political society.Bentham sees law
as the total number of individual laws put together , Roscoe pound also of the same sociological school of
Jurisprudence refer to law as a social engineering .According to Femi Adeshina
Esq. in the paper delivered ‘Law as a dynamic instrument of social Engineering
’ presented to the Law society [faculty of law uni.of Lagos ;2001 ann.lect.]
.He affirmed that for law to be dynamic instrument of social engineering must
be relevant to social needs and aspirations and also must be proactive and
up-to-date .Social engineering by aim is to build an efficient structure that
grows peace faith and freedom in the long run in the society avoiding friction
discord violence and disunity .And the
essence of the law is the orderly arrangement of the society smoothening and
facilitating equity in the members interaction
from govt to the people and from people to the judiciary .
Origin Of Law and modern
evolution justice
The supposed origin of law in practically every civilization
has been traced to the cradle and its source of divine power ..Ordinarily such laws must be
just transparent and advocate of universal justice .Today most cultures in
modern times beginning from Europe to Africa to Asia, have abandoned
this belief and position while the classical Islamic scholars still never departed from their basic roots
of Shariah and belief in its immutability.
In some of the Islamic states modification had taken place on the basic framework of these laws through
new interpretation process by the kadis
and scholars which persisted into the 21st century .
The abandonment of divine vehicle indirectly promotes the
modern legal growth and development due to changing demand and technology surrounding economic development. To make the
matter worse divine laws enforces
slavery even though attempted to secure justice for the follower ship[i.e.
Israelites] .This Is divine absolutism .From divine absolutism , human angle to absolutism evolved and
especially after independence dictatorial regimes which took over government
from western powers were common all over
Africa .The successive decline that
followed was as a result of evolution
from human absolutism into modern liberalism .Learning a lesson from
history is particularly important .The School of Austrian positivism which
reached its climax in the Victorian
times and the degeneration of General
Hitler who overran Germany using the sovereignty of ruler hip to enforce
destructive tendencies later engaging in the bloodiest war in History . Writing and declaring in the ‘Economic and
Social Dimensions of Law ‘the late justice of Akinola Aguda noted that ‘what
can endure is government under the law
not government above law ’ .This attitude is well illustrated at the
1937 NAZI PARTY CONGRESS when he
demanded for blind obedience .His government had the power to jail people
without bringing them justice or without trial .I N France likewise before the
Revolution [1789] the nobility could disrespect or disregard ordinary law
imprison local subjects and inferiors without trials .In such climate
miscarriage of justice is a great concern still a huge burden in most
developing countries
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