By Yemi Osinbajo*, SAN
Since I became a law teacher in 1981, I have always looked forward to the law teachers conference for various reasons some less noble than others.
First, it was the only conference that the University felt obliged to pay for, so we did not have to spend our meager resources to attend.
Secondly, it was a chance to meet friends and colleagues from across the country and have a good time in each other’s company.
But the third reason and perhaps the most important, was that it was a time to discover in the course of the sessions, what the latest thoughts and opinions were on the jurisprudence of a wide range of subjects.
The sessions were important because we were not just legal practitioners as many of our colleagues in the profession were. We were and remain the purveyors, custodians and creators of the underlying concepts and foundational premises of legal thought. We are the thinkers for our system of law and justice, and our profession.
We often contended then about the usefulness of law to society which its liberal origins ensured that it supported and we talked a lot about the influence of capitalism on law and justice.
We understood that because teaching was not, to paraphrase Faust, merely to transmit knowledge but how to imagine, adapt, assess, interpret, change, and create, we needed to rigorously interrogate the fundaments of our jurisprudence and system of law and justice.
So the law teachers conference has always been our forum for the free and yet deep interrogation of the fundamental ideas and issues that held society together, the trajectory of the rule of law and law and order, and their current interpretations and efficacy.
So, we have always believed and rightly in my view, that the enormously important task of thinking through and designing legal policy, and guiding legal thought rested upon us. The law teachers conference was a time to step back and reflect, in order to come back to the problems with boldness and innovation.
I believe that today more than ever in our national journey, we law teachers must again step back from the confusing and sometimes overwhelming noises of the moment to craft, through legal thought and innovation, a future that is not hobbled by, but, takes advantage of the past and the present.
Where, as is sometimes the case, those charged with thinking do not think or abdicate that responsibility, then those ill-equipped to do so will and we must all bear the consequences.
The theme of this conference I believe is to compel us to play our role as thinkers for our nation and system. Permit me therefore in what will follow to play the role of an ‘agent provocateur’, to provoke some thoughts and ideas.
Let me say that perhaps the greatest challenge to national development today is insecurity. But we must define security correctly.
Security cannot merely be State-centric or military i.e. security of lives and livelihoods from internal and external threats. This focuses solely on the role of the State in the maintenance of law and order.
I think it was Kofi Annan, the former UN Secretary General who defined security with a broader and more contemporary description when he said, “human security can no longer be understood in purely military terms. Rather, it must encompass economic development, social justice, environmental protection, democratization, disarmament, and respect for human rights and the rule of law,’’ to which we must add as a distinct category, governance.
The most important subtext in this definition is the growing influence and power of non-state actors, including big business, socio-cultural groups, ethnic nationalities, terrorist organizations and tendencies, religious organizations and criminal networks. Because of the more pervasive roles of those non -State actors, often acting on legitimacies not necessarily conferred by formal laws, the robustness of the state’s response to its primary role of maintaining security is often called to question.
The measure of security within a nation is therefore a function of the state’s capacity to maintain this broad definition of security, on the other hand, the degree of lack of capacity is an index of where the State is in the spectrum of State failure.
Consequently, our definition of the role of the State in maintenance of security in contemporary jurisprudence must change. Our laws and jurisprudence must recognize this as such. Take corruption as an example and corruption of course is an issue of governance which is part of our definition of security.
Grand corruption has led our country to terrible depths of misery. In the past two years we have unearthed cases of embezzlement of public funds that show that if we could recover all that was stolen we could easily double our external reserves. That level of corruption is an existential threat to any nation.
The abject poverty of millions in every zone of our nation, the absence of good roads, schools, hospitals, is largely because some have pocketed the common wealth.
Boko Haram for example could have cost us less-loss of lives of our brave soldiers and over 20,000 civilians- if the government and military authorities had not corruptly enriched themselves with the funds to purchase platforms, equipment, uniforms, and pay allowances.
About 2.3 million persons in the North East are displaced from their homes and their livelihoods today, thousands of children cannot find their parents.
This is why the vast majority of our people are confused about our system of justice especially in its response to the stealing of public resources. How, for example, does it take so long to prove in court that a man earning a civil servants salary has billions in his bank accounts? The gradual loss of confidence in our administration of justice system is a real threat to social cohesion.
Almost daily you hear on radio and read on social media how easy it is to jail a man who stole a goat or a phone within months and how difficult it is to prosecute a public officer who has stolen billions of public funds.
Consequently we must redefine the offence of corruption and our approach to its prosecution, taking into account its profoundly destructive impact on lives and property. Such an offence is worse than homicide; it is a crime against humanity. The approach of the trials must be time bound.
In many judicial systems more often than not in serious cases part of the reason why bail is not easily granted is because the trials are time bound and usually not longer than six weeks. Dilatory tactics on the part of lawyers is sternly viewed, adjournments are usually not allowed or if so at great financial and professional cost to the lawyers on either side.
Today the most obvious cases of corruption are interminably delayed; indeed the strategy of many defence counsels is delay. In a recent UNODC study, about 43% of judicial officers surveyed reported that the main causes of excessive delay in our courts were “ploy by parties”, “requests for unnecessary adjournments” and “interlocutory applications to protract proceedings” and it was similarly found that most adjournments were caused by the absence of the accused, the defendant, their lawyers or of a witness.
This suggests that the stakeholders in the justice sector are mostly responsible for the problem of delay in the administration of justice. The delays in our system of justice are becoming a source of derision of our trial system by judges in other jurisdictions.
In 2014 for example, an English Court of Appeal decision- IPCO (Nigeria) Limited v. Nigerian National Petroleum Corporation  EWHC 576 (Comm), the Court ruled that a pending challenge in a Nigerian court to a US$340 million award should not be a bar to enforcement in London, because the Nigerian proceedings could take “up to a generation” to be resolved. The Court also described the Nigerian judicial system as being bedeviled by “catastrophic” delays.
Our system of justice is clearly under siege; most of it is self-inflicted – delays by counsel, weak control of proceedings by courts, and corrupt practices, a subject which in and of itself is a matter of serious concern.
We as law teachers must ask ourselves whether our legal system can survive and serve its purposes to society without a serious and incisive rethink and reconsideration.
So, how should the
First we must recognize that a lot of these agitations center around the alleged failures of the state to create an inclusive society under existing constitutional arrangements, to guarantee the security of lives, livelihoods and liberties by the agencies charged with maintaining law and order and to build trust around the rule of law and the system of administration of justice.
First, on the matter of inclusion and inequalities, there is little doubt in my mind that the provision of the basics of life to the largest number of our people remains the greatest source of tension in the polity.
The daily struggles of many, for healthcare, a means of livelihood and the absence of a socially just means of ensuring that many, especially young people, have access to education and jobs provides a constantly replenished pool of young malcontents, ready to be recruited into any sort of Army, whether it be of kidnappers, terrorists, or violent or antisocial agitation for one cause or the other.
Besides, the constant agitation for share of national resources, is a product of individual-elite- deprivation, taken up by ethnic nationalities and socio-cultural groups. Each group views the other with suspicion when it comes to matters of resources, and government appointments.
As it is at the Federal level, so it is at the State level. In my state for example, the Egba and Ijebus in Ogun State are constantly arguing over who is getting a better deal in government appointments or infrastructural development.
Unfortunately, in order to give our campaigns greater acceptability and resonance, we often characterize them as ethnic or religious agitation. The right to a decent existence, to education, healthcare or jobs must not depend on how loudly my ethnic or religious group agitates; no, these are my rights as a citizen of Nigeria.
It is the failure of the State to deliver on these essentials of life and livelihood that compels our people to run to their tribal and religious camps to seek succour by way of agitation for basic rights and services.
Unfortunately, it is the same elite especially the political elite, who fail the people by the wastage and embezzlement of their funds who are at the forefront of pretending that their deprivations are caused by other ethnic nationalities.
Having gone round this nation to its villages and settlements, everywhere in the course of the campaigns, and after, there is no doubt in my mind that poverty has the same character in Bodinga Local Government in Sokoto State as in Ayanmelum Local Government here in Anambra state; poverty on an Ibo man is not more dignified than on a Hausa Fulani man. Hunger is neither a tribal or religious issue.
So the question for us is how to resolve these issues. First is to place responsibility where it rightly belongs.
It is the business of government, by that I mean the executive, legislature and judiciary to provide the enabling environment for the quality of life that people expect.
Indeed the constitutional obligation to do so is clear. Section 14(2 ) (a) says that sovereignty belongs to the people of Nigeria from whom government through the Constitution derives all its powers and authority ; and assures that (b) the security and welfare of the people shall be the primary purpose of government. This is crucial.
Whereas the classic overriding obligation of the State is Security our constitution places Security and Welfare on the same pedestal as the primary purposes of government.
Coming from this perspective, the fundamental objective must become the founding principle for legislation, executive action and the observance and enforcement of the rule of law.
For example, the provision of section 16(1) (b), 16(2)(b) and (d) which provide respectively as follows: “the control of the national economy(shall be) in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice, equality of status and opportunity; (b) that the material resources of the Nation are harnessed and distributed as best as possible to serve the common good; (d) that suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare for the disabled are provided for all citizens.”
These directive principles must be regarded as justiciable in order to realize the Nigerian dream.
It is the duty of our association to champion this important pillar of our national development. Governments must be compelled to show by budgetary provision and executive action how they have complied with this constitutional imperative. Often in government, the issue of how to adequately provide for the poor, create jobs and welfare for those who cannot work becomes an ideological debate.
The classical view had always won the argument namely that when you enable private commerce and industry, jobs will be created and that direct job creation and social welfare schemes are wasteful and achieve little. This is the so called trickle down approach.
However in the current Federal Government the argument is being won by those who believe that government has a central role to play in the provision of social welfare. That extreme poverty is not only immoral, it should be illegal.
This has led to the largest single provision in our history for social welfare. In the 2017 budget we are providing N500 billion for social investment alone; N100 billion of that is for part of our social housing fund and the total value of that fund is N1 trillion; the provision for cash transfers which is for the poorest and vulnerable is 1 million Nigerians; the N-Power, which is the provision of direct jobs to young graduates for two years is 500,000 and 200, 000 jobs have been created already but certainly we can do more.
It is important that our budgets are crafted in such a way that we take into account the aspect of social welfare.
Like I said, it is an ideological battle. It is a battle that must be contended for and must be contended by all of us especially law teachers. I was speaking to a group of law teachers and I was telling them that we have not engaged government, we have to engage government.
It is also true that we do not engage the judiciary anymore. In the past; we had journals about all manners of judgements from all of our courts, in fact there were journals that even analyzed high court cases and even exceptional articles by some of our colleagues that drew the attention of judges. There was an article by Prof Amos Utuama titled Crocodile tears by the Supreme Court and he was talking in particular about Certificate of Occupancy and all that; and the Supreme Court in one of its sittings contended that its tears were not crocodile at all.
I believe that today we must pay more attention to what is going on in our court system, what is going on in the executive, it is our business as law teachers to critique everything that is going on. That is why we have been entrusted with this great duty to teach the would-be lawyers and be the thinkers of our profession and our justice system.
It is also probably true that our corporate existence and security have been put at risk by the failures in the enforcement of law and order but also our failure especially we as legal intellectuals to correctly dimension the problem. Our contributions to the various disputes in our society must be to properly dimension the problem so that we are not just joining argument. We have the tools, the training to present the problems to society along the lines of the constitution, public law and our different disciplines.
Take the herdsmen and farmer conflicts. As justice Amina Augie just said, it is first and foremost a struggle for food security, land and water resources. The context of environment and environmental justice sets the stage for meaningful engagement and arbitration.
We must also admit that these conflicts are not new. But engagement and law enforcement had kept things in check. Law enforcement must move apace with engagement. The President for example had issued a directive to the police to arrest and prosecute anyone found with weapons. This is important not only to assure the citizenry of safety of their lives and property but to prevent resort to self-help. There is a long way to go.
Just last week, I was meeting with our security agencies to sharpen our response to this problem. Our discussions centered on the robustness of law enforcement. There is no half-way house in maintaining law and order and the safety of the citizen. It is the very core of government.
So, we must creatively and innovatively provide for maintenance of law and order.
Let me close with a brief comment which touches on the questions of victim justice and transitional justice alluded to by the deputy governor of Ebonyi State, but I would want to leave this matter for fuller consideration by this very august body.
But the issue of what happens to victims of conflict within society; victims of the Herdsmen clashes with farmers, victims of the insurgency in the North-East, victims of environmental degradation in the Niger Delta; the question of what happens to them is certainly captured in transitional justice.
I think that these are aspects of law that are developing and are developing very rapidly because people are asking all sorts of questions. What happens to me when my property is destroyed by insurgents or herdsmen or what happens to me when the only source of fishing for me and entire environment is damaged by activities unrelated to me in anyway.
I think the most important thing is to start from analyzing, but first government must take responsibility because government is expected to maintain the rule of law and it is the failure of the rule of law and the failure of the administration of justice that is usually the first culprit when there is any kind of victimization.
To go beyond that, there is also the question of communal responsibility, what are the responsibilities for communities, civil society, and non-state actors.
For example, in the North-East, hundreds of people have been killed, children have seen horrible violence, some have seen their parents killed and have faced severe hunger, and all kinds of situations that you would not wish for your enemy; how do you reconcile these people to society?
There are all of these transitional justice vehicles such as truth and reconciliation commission and all of that. There are all sorts of international compensation models that could be adopted to resolve these issues because societies in conflict issues are becoming part of our lives and it is not just in Nigeria, it is across our continent and the globe.
I think the issues that call for our attention today are so many. These are challenging times for us but also times of great opportunities because our society rely a great deal on our law teachers to find solutions to these issues and to teach a new generation of students the types of problems and issues that are relevant to our own time. And I believe it your responsibility and I believe at some time it will be mine too.
Finally, let me congratulate all of us on this 50th anniversary, it is a wonderful thing to be able to celebrate 50 years and I pray that our next 50 years would be even greater and we will be blessed with all of the good things that our nation deserves.
*Acting President, Professor Yemi Osinbajo, SAN, delivered this speech at the opening session of the golden jubilee of the Nigerian Association of Law Teachers, with the theme, ‘Law, Security & National Development, held at Nnamdi Azikiwe University, Awka, Anambra State on 12 June 2017.