In every democracy in the world, nearly always, there exists a normative order consisting of an entire body of rules and directives regulating conduct, and which help foster the rule of law; as well as form the basis for the attainment of the lofty ideals of equality, freedom and justice as the guiding principles of democratic societies. More than that, they underpin the entire legal, political, economic and social superstructure of any country, while their mere presence within the political order ensures that there’ll be due compliance with all democratic processes. Collectively, these regulations embody the national laws of any country. And while all a creation of the exercise of legislative power, by their very nature, though, they are the codification of the popular aspirations of the people. And a reflection of their most cherished social values. To quote a popular legal school of thought, they are the “volkgeist” (i.e. the spirit of the people)
As a product of the legislative process, and mirror of accepted usages and social values, the growth and development of the law within any country is intricately entwined with those of the very people whose conduct it governs. In this sense, the law though a mere abstraction in form, is substantially, a living creature in all its operations; in as much as it seeks to address the peculiar circumstances of human beings living in a dynamic and ever evolving society. As such, the law cannot maintain a position of feigned indifference. Or remain an ossified phenomenon, independent of all the radical goings-on in the larger society in which it operates. But, must, in the overriding interest of justice, and bearing its own efficacy in mind, undergo perpetual and periodic metamorphosis to reflect any change in the realities of the people.
In its administration, the law must constantly seek to adapt to any change in the status quo, which might have been occasioned by either the emergence of any new technology or the sudden departure from any shared social values it once legalized. Just as machines require repairs and maintenance, likewise, existing legislation must undergo constant amendment if it’s to remain modern, current and relevant; even lacunae and loopholes in older legislations, might, from time to time necessitate newer laws to cover or address them.
It’s for these reasons that law reform is, and has been, an inbuilt check on inoperative, undemocratic, and unworkable laws within any legal system. In the same vein, it’s the prerequisite for a just, efficient, and efficacious legal order, while also ensuring that laws are in good working order.
Generally, there’s a certain public misconception that law-making begins with the introduction of bills in the legislature and culminates with their promulgation. But if we take a more holistic perspective, we’ll realize that positive law-making is actually a continuing process encompassing, not only creative legislative processes like law-making, but corrective activities as law reform.
Thus, when new legislative proposals are approved and enacted into law by our legislative houses, someone has to see to it that these laws are periodically revised and updated to enhance their efficiency. To quote Lord Gardner, the Lord Chancellor of England and Wales, when introducing the bill to establish the original British law commissions, “it may be your Lordships’ experience that things in life do not get done unless it is somebody’s job to do them”.
In principle, this function ought to have been performed by the legislature since they wield the power to make laws. But given the exacting schedule of legislative business worldwide, and the endless queue of bills and proposals awaiting consideration by our deliberative houses, the point might be made that’s it’s unlikely these bodies, overburdened as they are, would abandon their primary law-making assignments and condescend to the level of initiating legal reforms.
Hence, the need to constitute special, independent advisory bodies to be charged with the sole responsibility of reviewing existing legislation and recommending changes to the legislature. While such bodies may be known by different names from one country to another, however, within the Commonwealth of Nations, to which Nigeria is a member, the job of legal reform is devolved to agencies popularly known as law commissions.
In Nigeria, the power to initiate legal reform is designated to the Nigerian Law Reform Commission, established under the Nigerian Law Reform Commission Act, 1979. This legislation vests power in the commission to introduce reform by way of consolidation, revision and repeal of obsolete or spent statutes in the country. As a matter of procedure, and with a view to reform, the commission upon reviewing existing statutes is directed to submit its final reports to the Attorney-General of the Federation, who would pass on such reports to the Federal Executive Council. Upon approval, the proposal would then be sent to the National Assembly as an executive bill.
But in the years since its inception, the commission has had a rather checkered, if not embarrassing history of non-implementation of its reform recommendations. In a study of annual reports of the implementation rates of law reform agencies across 12 agencies within the Commonwealth published by the Commonwealth Secretariat in, 2017, it estimates the average implementation rates at 68.3 percent. These are impressive numbers, but since it’s unclear whether Nigeria was included in this study, we can accurately guestimate from available records, that those for Nigeria would be the poorest of them, probably around near-zero; since there’s almost never any follow-up legislation to reform proposals.
Not that the Commission hasn’t taken the initiative to make reform proposals, but almost always, they are never acted upon by either the executive or legislative arm. We’ve seen promising proposals like the Victims of Crime Remedies Bill, Unification of the Penal Code and Criminal Code Bill, Prevention and Prohibition of Torture, Cruel, Inhuman or Degrading Treatment or Punishment And Other Related Matters Bill, die a natural death from a lack of government implementation.
With this slow pace of reform implementation in the country, the quality of our laws have been on the sharp decline, gradually regressing into an utterly abysmal state, and almost out of sync with our rapidly changing social, economic and political circumstances. And when, even own cherished concept of justice as the last hope of the common man has come increasingly under threat from this regime of unreformed and undemocratic laws, we can understand if our proverbial common man adopts a Rambo-style approach to seeking legal redress.
It’s strongly believed that existing laws, in keeping with international best practices, and to meet the ever pressing demands of justice, should be revised every decade. But it’s on record that the last revision of federal laws in Nigeria was done in the periods between 2002 and 2004. In the years since, nearly a decade and a half has gone by without any hint of revision been mooted for our laws. And the high incidence of dead letter laws (inoperative and irrelevant statutes) which have proliferated our statute books is a direct fall out of this amendatory neglect.
This state of affairs calls for urgent action both from all stake holders within the legal industry, the Commission, and more importantly, from the Nigerian government itself, as the soul of our democracy is dangerously near the edge of a precipice. But before there can be progress of any kind, policy makers within government must first come up with a blueprint to guide the Commission through the series of obstacle courses that have impeded it from carrying out its reform mandate.
To this end, the following changes are strongly recommended. Some are notable practices from other Commonwealth jurisdictions. It’s believed implementing these changes would help expedite the pace of reform in Nigeria. They are as follows:
1. Increase in Funding to the Commission
Law-making is an expensive undertaking as is law reform. With special regard to reform, in order to produce a high-quality work, several processes need to be undertaken, and with multiple methodologies. To mention a few; there’s need for in-depth review of the law, inclusive consultation with relevant stakeholders, recruitment of expert services, and a comparative research of the law in other jurisdictions. But these all entail a heavy expenditure of money. But looking at the budget of the Commission, what it has is so little that it’s barely enough to cover its administrative costs, let alone cover the high costs of reform engagement. According to the incumbent Chairman of the Commission, Mr. Kefas Magaji, in a recent interview with Vangaurdngr, the Nigerian Law Reform Commission receives roughly N4.5 million ($12,465 at the current exchange rate) monthly as running cost. Compare this to the number of staff on its payroll (205) and you’d see the scandalously poor remuneration of staff. Not to mention, the gaping budgetary gap. Any math would definitely indicate the Commission is underfunded and this represents a grave monetary handicap to initiating effective legal reform. Clearly, this Commission could certainly do with a bigger budget. And they shouldn’t have to carry placards before our government realizes this need.
2. Elimination of Communication and Procedural Bottlenecks
By their very nature, law reform agencies are advisory bodies. And like the doctor’s advice, this leaves government in a position where they could either “take it or leave it”, however compelling. Essentially, as advisory bodies, their final reports are inchoate until government lends them a listening ear and sees fit to take their advice on board. But once their recommendations are accepted, they become bills. Once they pass through the various stages of legislative vetting, they become law and take effect. In Nigeria, reform processes follow this exact same procedure. Except that we’ve taken these compliance procedures to, which it must appear to the Commission, an annoying extreme. Like I said earlier, the Commission after reviewing any existing law must put its recommendation in writing to the AGF, whom on receipt, would then forward it to the FEC, and on from there to the NASS. Such a roundabout process!
By requiring this, the Act has entrenched a needlessly drawn out hierarchical channel of communication that sidelines the Commission from the reform process. This may be one of the likely fetters on reform implementation in Nigeria as it occasions avoidable delays, and worse, nonresponse. The question I’d like to ask using a few hypothetical scenarios is, what then happens when, say, the AGF or the FEC sits on the Commission’s report far too long? Or are way too busy to attend to these reports? The answer, of course, is a forgone conclusion. The NASS will never get the chance to see the bill. Or pass it into law. Why not follow the practice in other Jurisdictions like England, Wales, Scotland and South Africa, to mention a few, where law reform agencies submit finals reports with bills attached directly to the relevant body for implementation. By adopting this same procedure, we could eliminate these cumbersome communication bottlenecks by mandating the Commission instead to direct its report along with a draft bill to the NASS for implementation. The bill will reach them much faster this way and definitely improve response rate, and its implementation to a larger extent.
(3) Adoption of Court-enforced Implementation
Without caring to acknowledge it, courts in their interpretive jurisdiction do actually share in the law making powers of the legislature. When courts hand down rulings with far-reaching effects in the legal system, they become precedents which serve are future guides in similar cases. These judicial pronouncements carry so much weight that sometimes they could literally override the letter of the law. We refer to them as judge-made laws, which in reality, is an acknowledgement of this long-standing pseudo-legislative jurisdiction courts worldwide enjoy. So where exactly do the courts come in the reform process? Well, since they technically wield the same law making powers as our law-making bodies, we can actually get them to indirectly enforce reform proposals when the executive and legislative arms have failed to act upon them.
But courts are normally forbidden from raising issues for adjudication suo motu unless they arise via litigation, however, the Chief justice of Nigeria, could under his general powers to issue practice guidelines enforce them limitedly. This one of recommendations of the Commonwealth Secretariat, in one of its recent publication A Practical Guide to Law Reform, particularly where the proposals relate to; change in court rules, practice directions, codes of practice or other soft law instruments.
I sincerely believe making the foregoing changes would provide the necessary stimulus to our sluggish reform system and give a distressed Nigerian Law Reform Commission a shot in the arm. But, still, the ball is in the government court. Let’s hope they’ll get it rolling.
Patrick Herbert is the Editor-in-Chief and founder of Law Student Hub. He is an LL.B. Law graduate from the University of Benin, Nigeria. He’s a life enthusiast, a budding writer and internet entrepreneur. Patrick is deeply passionate about law and research and has inspired many with his thought-provoking articles. To get in touch, follow him on social media.