By George Ayittey
Some Nigerians yearn for another military coup for a military dictator to knock heads and solve their problems. This proposal, in my view, is out of the question. First, the record of military rule in Africa is abysmal. Somalia, Rwanda, Burundi, Zaire, Liberia, Sierra Leone, Ivory Coast, Togo, and Chad, among others including Nigeria, were all ruined by military coconut-heads.
They were all generals.
Even General I.B. Babangida (rtd), himself remarked that: “Every military regime is a fraud. Anybody who heads a military regime subverts the wishes of the people”(The African Observer, Jan 18-31, 1999; p.6). Second, the entire West African region is fed up with military coups. ECOWAS will never support a coup in Nigeria. Witness ECOWAS response to the coups in Mali and Guinea-Bissau.
Some Nigerians have suggested a break-up of the country. This is also a non-starter. Even the hopeless African Union would not support that because it would set a dangerous precedent for the continent. Africa has more than 2,000 ethnic groups and if each aggrieved group were to break away, we might end up with over 1,000 little “Djiboutis,” each with its own national flag, anthem and perhaps a Swiss bank account for its president. And Nigeria could also end with over 250 mini countries.
Still other Nigerians say a strongman is needed to end the nonsense and clean up the mess but this is a wrong approach. Remember what President Obama said in Accra in July 2009: “Africa doesn’t need strongmen; it needs strong institutions.”
Road Analogy – Traffic Laws
A useful way of analyzing Nigeria’s problems is to use a road analogy. In Nigeria, drivers are required to drive on the right and to stop at STOP signs or when the traffic light turns red. They must yield to pedestrians in crosswalks or zebra crossings and must obey the speed limit. If they are making a turn, they must switch on their turn signals. They must obey one-way signs and so on. The body of these rules and regulations is called TRAFFIC LAWS. If ALL drivers obey the traffic laws, there would be sanity on the roads and it would be possible to get from Point A to Point B SAFELY and in good time.
Now, imagine a situation where only a few drivers obey the rules of the road or traffic laws. Assume some big buffoon thinks he can drive anyway he likes at whatever speed – even the wrong way. Assume another nitwit insists on driving on the left side of the road because he is left-handed. Guess what would happen on the roads. There would be horrendous carnage, chaos, fatal accidents, and wreckage.
Ever driven on the streets of Lagos? The last time I was driven through the streets of Lagos in 2009, I tried to find and count the number of commuter buses without a single dent on it. I couldn’t. I also tried to see if drivers would stop at traffic lights, if you could find them. Few did. I will never forget the taxi ride to the airport – at break-neck speed. My heart was in my palm, thumping. Obviously, driving in Lagos would be much, much safer if all drivers obey traffic laws. But the federal government couldn’t ensure that. It built itself a new capital at Abuja and FLED from Lagos!
This road analogy can be applied to the general Nigerian or most African societies. In any organized society, there is a body of rules and regulations which EVERYONE must obey and follow if the society is to survive, rejuvenate itself and progress. A society cannot exist without rules and principles that govern relationships between a person and other persons, the community, and the environment as well as handle problems that may arise within these relationships. A set of such rules, codified or not, may be termed “law.” Six may be distinguished: Natural, contractual, statutory, customary, religious, constitutional laws.
Natural law constitutes the body of rules people must follow in order to live and work in peace. First, they must avoid physical harm or damage to another’s work and property. Second, they must honor their obligations or contracts with others, and, third, they should compensate those on whom they inflict harm and whose property they damage. When people conduct their lives in this “live and let live” way, the natural order of human world is respected. There is peace and natural law prevails. The human world consists of many separate individuals, each capable of feeling, thought, speech, and action. Inevitable interactions create a web of inter-relationships and boundaries that separate one person from another in his words, works, and actions from those of other persons. When people respect that order and the boundaries that define it, they act justly – justice being nothing else than the will to respect the order of the human world and to recognize in word and action what belongs to another.
When people act justly, they refrain from treating another person as something other than a person or as some person other than he is and from treating what belongs to one person’s as if it belonged to another. They minimize and may even eliminate confusion about who said, did, or produced what. This in turn makes it possible to attribute responsibility, praise and blame, merit and demerit, to whom it is due. Thus, when people behave justly, they do not threaten one another’s life, freedom, or property, but act towards one another in peaceful, friendly ways. (van Notten, 2001; p.14). There are some groups who prefer natural law to laws promulgated by the state. For more, see this link: http://jim.com/rights.html
A contract creates a set of binding rules but it applies to only those who have specifically agreed to it. It is rather limited in its scope and does not empower a signatory to infringe upon the rights of others who are not party to the contract. The “contract” may be a verbal agreement or a promise to repay a loan in the presence of a “witness” and actions to be taken in case of default.
Statutory laws are “rules of conduct designed by government employees, legislated by a parliament, promulgated by a government official such as a king or a minister, and enforced by a police force controlled by that official” (van Notten, 2001; p.16). The police typically have a monopoly over the use of force or the weapons required for redressing injustices. In a dictatorship, statutory laws are decrees or diktats of the ruling despot. In a democracy, statutory law is “politician’s law.” The people have little say in its design, promulgation and enforcement. Their representatives do so in their behalf but there is no guarantee that they will do so or promulgate laws that protect life, liberty and property. Statutory laws can be oppressive. “While these powers (laws) are supposed to be used to defend every person’s right to life, liberty and property, the truth of the matter is that they are regularly used to restrict those very rights. Politicians do this with impunity by first establishing a monopoly over the country’s policing powers” (Heath, 2001).
Customary laws are not commands or legislated rules. They “are conventions and enforceable rules that have emerged and are respected spontaneously, without formal agreement, among people as they go about their daily business and try to solve the problems that occasionally arise in it without upsetting the patterns of cooperation on which they so heavily depend” (van Notten, 2006; p.15). Customary law does not mean every custom is recognized as “law.” However, when a particular custom is repeatedly recognized in a traditional court, it may become law.
Religious laws are by definition those laws that are derived from the Bible or the Qu’ran. For example, the Ten Commandments and the Sharia lay down laws, enjoining their followers to obey. Many of them are straight-forward injunctions such as “Do not steal.”
A Constitution may be regarded as a social contract between the rulers or government and the governed. Constitutional laws are those derived from the Constitution and when freely negotiated, is the law of the people, defining how their society is to be organized and governed. Constitutional laws specify the rights of the people and the limits of government. They are supreme, taking precedence over all laws. They are also sovereign, meaning they cannot be abrogated by one individual or political party with a majority in Parliament. The supremacy of Constitution law is due to the fact that a nation may be composed of different ethnic and religious groups. While each group may have its own particular laws, there must be one law – Constitution – that keeps or is binding on all groups within the nation.
Thus, every society must have some body of laws to govern itself by. For example, one does not arbitrarily go and steal or seize someone else’s property. All societies disallow that. Nor does one grab, rape and impregnate a woman if one wants to have a child. When everyone obeys and follows the same law, “the rule of law” is said to prevail, meaning it is the law that rules, not the whims of some autocrat. Thus, it is this body of principles and rules – or the rule of law — that stands between sanity or progress in the society and utter chaos or anarchy. Similarly, traffic laws are what stand between sanity and order on the roads and total chaos and carnage.
The rule of law is not something that is alien to Africa. Each traditional African society also has a body of principles and rules which everyone – including chiefs and kings – must follow. It is called customary law. It may cover a wide area — from nationality, land, chattels, marriage, testamentary disposition, defamation to modes of enforcing payment of debts. For example, ownership is generally recognized as arising from original acquisition or legitimate transfer by way of gift, purchase, etc. When a person applied his labor, superior mental powers or business skills to a piece of previously un-owned land and generated a product or developed an artistic motif, traditional law allow them to retain ownership of such land, product or motif.
In traditional Africa, one did not take the law into one own hands. There are customary ways of resolving disputes.
A dispute may be taken to native courts – called gacaca in Rwanda – for a resolution. Among the Arusha of Tanzania, “there was a very strongly held value that disputes should be settled peacefully by persuasion and by resort to the established procedures for settlement” (Carlston, 1968:310). Similarly, the Tallensi of Ghana abhorred killings and violent resolutions of conflicts. For precisely this reason, they celebrated the Golib festival, during which all feuds and hostilities between clans were prohibited. This festival emphasized “the themes of food, harmony, fecundity, and the common interests of the people as a whole” (Carlston, 1968:109).
Customary laws enjoin respect for elders and parents, especially mothers. The elders are regarded as the fonts of wisdom and experience, while mothers are regarded as the pillars of society. This is captured by the African proverb: “Educate a man and you educate a single person but educate a woman and you educate an entire nation.”
Everyone, including chiefs and kings, are required to obey customary law. Even in the rigidly-controlled Kingdom of Dahomey in ancient times, Boahen and Webster (1970) found that,
“Although the king’s word was the law of the land yet he was not above the law. Dahomeans like to recount how king Glele was fined for breaking the law. When gangs of men were working cooperatively either on state roads or building a house for one of their members, it was a law that a passerby must approach the leader and make an excuse as to why he could not break his journey to assist in the work. Permission was almost inevitably given, the law being largely designed to reinforce courtesy. King Glele’s procession passed one such group without asking to be excused. He was stopped by the headman and fined many cases of rum and pieces of cloth for breaking the law…The fact that the kings of Dahomey (now Benin) were prepared to obey the laws they themselves created was the difference between arbitrary despotism and despotism which realized that its power and position rested ultimately, no matter how indirectly, upon the will of the people (p.108).
Traditional African custom required that the elders, the “old men” instruct the youth in native law and custom. As instructors, the elders were expected to be of good behavior and comport themselves well to serve as role models for the youth. Consequently, contraventions of the law by elders were viewed more seriously and punished more severely because the elders were expected “to know the law.” Consider the following cases from Schapera (1957):
Among the Kgatla, a man who had refused on demand to give up cattle that he was looking after for someone else was not only ordered to do so, but was also fined, `because he is an old man and ought to know the law’ (Kgamanyane Pilane v. Ntwai Moeng, 22/1938).
In a matrimonial dispute among the Ngwato, the husband’s conduct was found especially reprehensible , `because he is an old man, from whom younger people should learn how to behave’ (Dikeledi v. Makgoeng, 153/1938).
And in another Ngwato case, a village headman who had abducted another’s wife was fined more heavily than usual because in his position he was expected to set a good example to others (Monyanda v. Radipitse, 151/1938).
The chaos and carnage in modern-day Somalia is a telling example of what happens to a society when some groups refuse to abide by the SAME law. The road analogy is even more pertinent and applicable here: Somalia is a country where some groups refuse to obey the same traffic laws.
The Somali are ethnically homogenous and proud people. They are fiercely republican andbase their society on their customary law called xeer. They refuse to accept an alien system imposed upon them. Heath (2001) expressed it well:
“Most Somalis prefer their customary laws and institutions, which they call xeer. In their experience, the xeer constitutes the heart of the Somali nation. They believe that without the xeer the Somali nation would fall apart, lose its identity, forgo its solidarity, forfeit its civilization and relinquish its culture. The xeer is the cord holding the house of the Somali people together. Indeed, it is thanks to their customary law that the traditional political system of the Somalis took the form of a kritarchy, not a democracy.
But Somali politicians had other ideas.
They hold the xeer in abject contempt and prefer contrived statutory law which will allow them to lord over the people. As van Notten (2006) noted:
“During the 20th century, the Somalis were subjected the heavy-handed policies of the colonial powers. These powers left a form of government behind that was at odds with indigenous Somali political culture. It took the Somalis 30 years to get rid of it and return to their pre-colonial political structure. Many problems arose in the course of this, but gradually the Somalis are resolving them. Foreign observers fail to understand what they are doing; they think the Somalis have been trying to establish a democratic government and constantly failing to do so. In reality, the chief aim of many Somalis is to clean their indigenous legal and political system of its foreign elements (p.139).
In short, the crisis and carnage in Somalia is due to a clash of laws. Not all are following the SAME traffic laws. The Somali prefer the customary law, the xeer. The colonialists, political elites and the Islamists prefer other laws. When the colonialist tried to impose their own laws on the Somali, they fought them and gained their independence. When dictators and political elites tried to impose decrees and statutory laws on them, the Somali fought them too and drove dictator General Siad Barre out of office into exile. Obviously, if the Islamist group, al-Shabaab, tries to impose the sharia on the Somali, they will fight it too.
Clearly, the solution to the crisis in Somalia does not lie in having a strongman impose the Ten Commandments on the people; they will fight it. Nor does it lie in breaking up the country. For one thing, the Somali are a one-tribe nation (ethnically homogenous), so one can’t have one tribe going this way and the others going the other way. Even then, Puntland and Somaliland broke away but no country has recognized them. The obvious solution is get ALL Somali to obey the SAME traffic laws.
Now, which LAW must ALL Nigerians follow and obey: Natural Law, Statutory Law, The Ten Commandments, The Sharia, or The Constitutional Law? If you said, the Constitutional Law, you are right but has it been followed? And what happens when the president holds the Constitution in vexatious contempt, refuses to follow it and blurts, “I don’t give a dam”?
We explore these issues next.
George B.N. Ayittey, Ph.D.
Ayittey, George B. N. (2006). Indigenous African Institutions. Dobbs Ferry, NY: Transnational Publishers.
Boahen, A.A. and J.B. Webster (1970). History of West Africa. New York: Praeger.
Carlston, Kenneth S. (1968). Social Theory and African Tribal Organization. Urbana: University of Chicago Press.
Heath, Frank Douglas (2001). “Tribal Society and Democracy” in The Laissez Faire City Times, Vol 5, No 22, May 28, 2001, available at: http://www.afrifund.com/wiki/index.pcgi?page=CtrySomaliland
Schapera, I. (1957). “The Sources Of Law In Tswana Tribal Courts: Legislation And Precedent,” Journal of African Law, Vol.1 No.3:150162, 1957. Van Notten, Michael (2006). The Law of the Somalis. Trenton, NJ: The Red Sea Press, Inc.