Essay
By Prof. Mike Ozekhome, SAN
Introduction
THERE is no doubt that the fundamental attribute of law is its ability to curtail excessive behaviours of man. In the absence of law in any society, anarchy and survival by strength become inevitable. The purpose of law is to produce either of two things: (a) an idealistic society or (b) a practical society, more tolerable than what has been labeled by some philosophers as ‘the state of nature’, in which there are no formal ties between mankind, and no civil or statutory law. The importance of law is such that it is difficult or impossible for a society to exist without law.
The force of law is a major requirement for maintaining social order and preventing chaos in a society. It is thus difficult to imagine the existence of a community without law. Lending credence to this is the view of Thomas Hobbs to the effect that, life outside society and law would be ‘solitary, poor, nasty, brutish and short’.
It is as a result of this that mankind saw the need to come together and entrust power to a group of people to implement policies and laws for the good of all, and this was how ‘government’ came to be.
In a democratic setting, the role of law in maintaining sanity and preventing impunity is enormous and indeed cannot be overemphasized. In absence of law, rule by whims and caprices of those in authority, or what I may rightly describe as “strongmanism”, becomes the order of the day. In fact, there can be no democratic setting in absence of rule of law, governing the system and limiting the powers of those in charge. Thus, it has opined that the essential characteristic of the liberal theory of the State is the idea that the authority and power of the State are limited.
It is against this background that this article seeks to X-ray the role of law in maintaining sanity and preventing impunity under a democratic dispensation.
Definition of Key Terms
The key terms that require definition for the purpose of clarity in this work are “Law”, “impunity” and “Democratic Setting”.
Meaning of Law
Law being a complex phenomenon, any good definition of it must be complex. Thus, aptness must not necessarily be the important criterion.
Although there is no universally accepted definition of law, law in more loose sense as against its specialized meaning is that which is laid down, ordained, or established. A rule or method according to which phenomena or actions coexist or follow each other expansively. It has been said that law represent a system of principles and rules of human conduct, being the aggregate of those commandments and principles which are either prescribed or recognized by the governing power in an organized jural society as its will in relation to the conduct of the members of such society and which it undertakes to maintain and sanction and to use as criteria of the actions of such laws. In other words, law is an accepted code of conduct which has been formulated and endorsed by organs empowered to generate such code of conduct to be generally applicable and binding on all class members of the society so as to guarantee the protection of the weak and strongly regulate the over bearing influence of the mighty in the society.
Put differently, law consists basically of a body of rules of human conduct which are binding on all, both the lad and the leaders. Law is a body of rules in a society at any given time, considered binding and which a breach is met by a sanction. It is a set of formalized or codified rules stipulating the rights and duties of individual, powers and obligations of authorities, with their limitations and remedies as well as the manner of redress in any case of breach. When rules involve the idea of obligation, they become law, but when they merely represent the notions of good and bad behaviour, they are mere rules of morality. Mere coincidence of patterns of behaviour does not indicate the existence of law; habits must thus be distinguished from obligatory rules.
Some people consider law as a command and some rules of law are couched in terms of command given by an authority and directed to an individual or a group. Most laws or legal rules however are not in that form, but are rather normative in character as it prescribes the norms of conduct-what people ought to do. It is imperative in character, that is, law states what people no matter their status or position, must do and what they must not do. Thus, the exercise of power by a leader or leaders, must be done in accordance with the limits provided by law. The practice of one arm of the government interfering with or undermining the powers of other arms breeds impunity and should not be allowed.
Practically, obedience to the law is secured by sanction and sanction serves the purpose of protecting the general community against persons of deviant behaviour. Without sanction, the continued existence of the society would be in danger and society would ultimately disintegrate.
Generally however, the term “law” is used to mean three things:
First, it is used to mean “legal order”. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society.
Secondly, law means the whole body of legal precepts which exists in a politically organized society.
Thirdly, law is used to mean all official control in a politically organized society. Law in its narrowest or strict sense is the civil law or the law of the land.
Evolution of Law and Government
Behaviour rules have developed and evolved along with the evolution of human communities, changing into social norms of cohabitation, organization and behaviour. The evolution of the community brought about the evolution of penalties applied to individuals who disobeyed or broke those rules. Thus, the first forms of human community used the death penalty (blood revenge) as means of punishment for serious violation of the rules of coexistence. Later on, death penalty was replaced by the individual’s expulsion from the community and as communities evolved, material redemption was used instead of expulsion. The first judicial norms (the germs of law) developed among these social cohabitation, organization and behaviour rules. Judicial norms differed from other rules due to their compulsory character and by appeal to the coercive force of the community when they were broken by certain individuals. The change of social, customized norms into judicial norms and the emergence of law as independent entity take place along with the occurrence of state and public power rooted in the Greek – Roman Antiquity. It has been said that law is a social phenomenon incidental to human society; thus, Romans have expressed this statement through the phrase: “ubi societas, ubi jus”, namely law occurs along with the society.
Impunity
One term that has gained prominence within the Nigerian democratic setting is “impunity”. Its overreaching influence holds sway on almost all facets of its democratic setting and institutions. The word —impunity derives from the Latin word —impunitas, which literally means “without punishment or exemption from punishment”. However, there is no consensus as to the meaning of impunity. Hence, diverse definitions of impunity abound, with each definition reflecting the perception of the respective writer. Despite these divergences in definition, impunity is nevertheless, often associated with the outright disregard for law or the rule of law, violation of human rights and the abuse of legal-social power
Impunity has been held to mean freedom from punishment or from unpleasant results of something that has been done that is wrong or illegal. The term “impunity” originates from the Latin word “impunitas” which translates to mean freedom or exemption from punishment, penalty or harm. It also means immunity from punishment. The height of impunity in any given society reflects the decadence of morality and consciencelessness of that society.
As Louis Joinet (United Nations Special Rapporteur) observed, impunity is a consequence of the —failure of states to meet their obligations, investigate violations and take appropriate measures (against) perpetrators, particularly in the area of justice, to ensure that they are prosecuted, tried and duly punished; to provide the victims with effective remedies and reparation for the injuries suffered, and to take steps to prevent any recurrence of such violation. It is thus evident, that the failure of a State to enforce the rule of law by meting out appropriate punishment to offenders and providing requisite remedies for victims is what ushers in a culture of impunity.
Democratic Setting
There is no consensus among scholars on the exact definition of democracy. Democracy is a Greek word which in its simplest form literally means “rule of the people”. Before Abraham Lincoln ever defined democracy as “a government of the people, by the people and for the people” different scholars has attempted to proffer definition to the subject matter. Though there is no consensus among scholars as to a generally acceptable definition of the term “democracy”, I shall however attempt to state a few of the definitions so far offered by different scholars in this write-up.
Rousseau sees democracy as the government of the people, for the general will of the people. Euripides, a Greek philosopher long before Plato, shared the above view when he described a democratic State as one governed by people’s representatives and for the many who have neither property nor birth. Plato, another Greek philosopher, had a similar view of democracy when he defined a democratic state in his book, the Republic, as a State governed by the philosopher kings, who neither marry nor have personal property, but live together in the barracks (that is, equivalent to government house today) and enunciate policies for the general welfare of the people. However, Plato, in his second and third books, the Statesman and the Laws, respectively modified his definition when he defined democracy as the government of the people in which law is supreme, ruler and subjects alike being subject to it.
Thought for the week
“At his best, man is the noblest of all animals; separated from law and justice he is the worst.” (Aristotle).
A.
-April 16, 2024 @ 10:49 GMT|
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