LAW AND MORALITY (2); A CONNUBIAL RELATIONSHIP

INTRODUCTION

The first part of this work dwelt on the debate as to the supremacy of law over morality and vice versa. It is really hoped that some positivists will not be out of sorts if this writer stresses that morality was formed in flesh and blood before law was conceived. It may interest curious minds to know that even the diehard positivist, Prof. Hart, concurred to the saying that morality was extant before law. Not to have anyone left shagged, it is apt we consider marrying and divorcing the concept of law and morality.

NEXUS

Aniekwu, a professor of law and research expert, in her text legal methodology and research in Nigeria helped a great deal in evincing the relationship between law and morality in a diagram. The diagram had two circles, and a shaded area which was not large – it touched both circles – represented the common ground where law enforces morality. With ease should it slip down throats that there is lack of merit to holders of the view that it is sufficient to rule the world with morality sorely. The marriage of the concepts will be celebrated in the subsequent paragraphs with statutory clothing and case laws. Since divorcing the concept will leave us in no bind, it will not be safe to say that from standard dictionaries (BBC ENGLISH, MERRIEM WEBSTER), law and morality were considered synonyms. Morality is relative in nature and was dwelt upon by Lon Fuller and other naturalists; this school believes law is from a spiritual being and it was relayed to man. It even believes that morality is one which is innate in man and one not remote from reason. Since morality is concerned with militating against unfairness, it is said to familiarize with law (or the other way round). The difference is pellucid in that where morality knows no sanctions and cannot fall back on an institutionalised body; law has such features at its beck and call. A disparity yet to be exposed, though mentioned, is that of the milieu of morality and its peculiar nature of relativism. What is applicable in Nigeria, for instance, is not necessarily the same in America e.g. a boy of 15 years being in a relationship with his age mate in Nigeria could attract serious belting especially when the relationship excludes nothing – suffice it to say that they whip the kid to say it is ineluctable to walk like men at such milk days. But in America, we realize from movies and experiences away from the movies that it is a normalcy for such teenage bonding to so exist without the parent calling such a gauche.

Even as the connubial relationship between the concepts are up for discussion, of interest also is the take from religious standpoint. A perusal at the Holy Scriptures has in Leviticus 19:9-10 what God wants us to do the moment we reap our harvest. God was saying there that the vineyard should not be gleaned but leftovers should be left for the poor; what is more, other than the fact that God displayed compassion and fairness. A consideration of this scenario will make moreish the nexus between the two concepts: Mr A. harvested yam on his land at a certain day, the land became pregnant with a profusion of yams several weeks after. Mr A happily came to reap the harvest of his land and gathered nearly all. He left some behind because he had his hands full already. He told himself that he would go back for the rest. Mr B, a poor man, came to the land and saw the yams placed on the ground. He believed it to be that Mr A was a kind man who took cognisance of the bible text above. He took the yams to his home to prepare for himself lunch. This case finds a footing in a court of law but the judge was convinced by the prosecution’s rhetoric that wafted in the four corners of the court room. The reliance on Leviticus was deemed unreasonable; no escape of culpability, and no need to utilize moral codes in the judgement. It cannot also be said that law does not have in its content something of moral birth as chapter 21 of the criminal code deals with offences against morality (s.214 cc) on unnatural offences. It means therefore that the law seeking justice could in some cases enforce morality.

As Abiola Sanni, editor of Introduction to Nigerian legal method, observed, it is quite paramount one considers the processes whereby a particular moral value, rule, and standard is created, and eventually embodied within the law especially where there is a wide divergent view on the morality of a particular issue. Looking at abortion for instance, a group of persons may hold firmly that a woman should not commit abortion for it is a taboo in the eyes of God and man, and if the law recognises such practices then that will be encouraging the immoral act and thus draining the societal values. The other part of the same society, the pro-abortion group, will passionately advocate for liberalization of these women – after all, these women are owners of their body and so can decide whether they want to have a baby or not. It should come as no surprise where the law takes the latter view owing to logicality, or it can do well to strike a balance. This means that the moment any of the sides can mobilize a crowd to their side especially of those in the political class, and their ideas crystallize into enacted law, then that is what becomes the will of the people. While still observing the marriage of law and morality, an appreciation of Shaw v. DPP should leave a mark. Here, Shaw had published a booklet titled The Ladies Directory in 1962 in which he listed and advertised prostitutes, together with photographs and descriptions of their particular sexual predilections and practice. Shaw was charged with the offence of conspiracy to corrupt public morals. The last time anyone was convicted for the offence was in the eighteenth century. Shaw contended that the offence was out-dated and urged the court not to enforce it. He was convicted by the trial court and unsuccessfully appealed to the Court of Appeal before it got to the House of Lords. Upholding Shaw’s conviction, Viscount Simonds, who was goaded beyond endurance, held that the court had a residual power to enforce the supreme and fundamental purpose of the law to conserve not only the safety and order, but also the moral welfare of the state. In this case, the court frowned at the manner of its public advertisement and not even the prostituting itself. It was in the year 1967 that the sexual offences Act was passed and it provided, inter alia, that homosexual acts in private (performed by two consenting humans) were no longer a crime. What Shaw got nailed for was the gathering of promiscuous hussy females in a magazine to be read by the public eye; that is sufficient to corrupt minds. A case on homosexuality is Knuller v. DPP where the appellants published a magazine International Times in 1973 which had a message to the public to contact them for homosexual purposes. The House of Lords followed the reasoning in Shaw v. DPP holding that the sexual offences Act did not in any way grant the publishers the indulgence to publicly encourage homosexuality. It was only justice when the court convicted the publishers for the offence of conspiracy to corrupt public morals. What can be perceived from the aforementioned cases is the House of Lords doing well to interpret the sexual offences Act for the Act was obviously not generous from its literal construction to include public advertisements. It can be said therefore that law and morality cling to a single rope and not strangers despite conflicting school of thoughts.

More on the marriage between law and morality leads us to the celebrated case of Inakoju v. Adeleke. For appreciation, the third respondent was the elected Governor of Oyo state. The first and second respondents were respectively the Speaker and Deputy Speaker of the Oyo State House of Assembly. On 13th December, 2005, eighteen legislators, who were opposed to the third respondent, met at D’Rovans Hotel, Ring Road, Ibadan. They raised a notice of allegation of gross misconduct against the third respondent. They did this without the involvement of the first and second respondents who were the Speaker and Deputy Speaker respectively. The service of the notice on the third respondent was done by the group through a newspaper advertisement. Thereafter, they went ahead and requested the Acting Chief Judge of Oyo State to set up and inaugurate a seven-member panel to investigate the allegations of gross misconduct they had drawn up against the third respondent. The Acting Chief Judge empanelled and inaugurated the panel to investigate the alleged acts of gross misconduct against the third respondent. The panel sat for two days and without taking oral evidence from anybody. It eventually submitted its report to eighteen-member faction who in turn passed a resolution by which they impeached the third respondent. Prior to this, the third respondent had filed an action against the eighteen-member faction of the House of Assembly challenging his impending impeachment. It is now considered an error on the part of the trial court to have so held that by virtue of s.188 (10) CFRN, 1999, it had no jurisdiction to inquire into the removal of the third respondent. What has been applauded today is the decision reached by the Supreme Court in this case. The Supreme Court were not incorrect to consider absurd the submissions of the appellants who submitted that a community reading of sections 90-96 CFRN evinces that a House of Assembly does not mean a building, but the members constituting the House. If efforts be taken to read the full judgement, then it will be agreed that the Supreme Court did well to curb the excesses of the legislature. A big concern still remains; the ouster clause appears limpid vide s.188 (10) CFRN which has that no proceedings of determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court. Flowing from the proviso, it appears unambiguous in its construction – in essence, there was no call for mischief rule. The legal draftsmen were patently clearly, little wonder s.318 CFRN was devoid of further clarification on the matter. To cogitate on the rationale behind the judgement, brings morality to line light. The Supreme Court seemed to apply morality due to the unscrupulous acts of the legislature – to call this judicial supremacy could be the case for the constitution is confessed to be supreme over the arms of Government and so if it creates an ouster clause, it should be followed. Where certain sections are deemed unjust and amounting to legal injustice, then the cumbersome amendment procedure should suffice. The point is, the judgement is soothing – at least in the eye of the public – but we see morality calling shots in a land governed by statutes.

The above paragraph evinces the nexus between law and morality in the field of constitutional law. Seguing into areas of criminal law, s.26 cc has that a person is not criminally responsible for an act done or omission made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing power of self-control could not reasonably be expected to act otherwise. R v. Dudley & Stephens is a case which involves the killing of a cabin boy when it appeared that food was not forthcoming as well as rescue. The application of morality was seen when the court did not let the reliance of s.26 cc absolve them glaringly because it will be unfair to kill another person as far as moral conduct is concerned. The accused men however got pardoned but not to say that the court applied the ordinary man test as showcased in the criminal code. Another aspect under criminal law is s.23 cc which has that a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud. It will in no way be witty to say that s.23 and s.25 cc is interwoven. A definite distinction between both sections is the fact that the former provides for an honest claim solely while the latter has honest and reasonableness under its roof. Nigerian cases under Bona fide claim of right, seems to be at dissidence. Take for example, Ejike v. IGP where the reliance on s.23 cc did well to absolve the accused from criminal responsibility simply because he destroyed 526 blocks on disputed land under the honest belief that he owned the land. Cases similar to Ejike’s are Iroaghan v, COP and Sule v. DPP where the court held the accused free from culpability under their honest claim to have destroyed cement pillars and the destruction of three uncompleted buildings respectively.  From the moral point, these decisions will be deemed unfair but that is why not all aims and objectives of morality are judiciously followed in the spheres of law. How about we ruminate on this: since morality is considered to appeal to reason (naturalists view), will there be a safe landing to link the doctrine of reasonability to morality? If we go with the affirmative, then it seems our Nigerian Courts have failed to comply with s.23 cc instead they have inscribed in their heart morality when giving its judgements. Even with the clarity of s.23 cc which removes the dwelling of reasonability, it was not the case in Nwachukwu v. COP where the defence failed because of the conduct of the accused that destroyed plants in disputed land. It is interesting that the court hinged its judgement on the unreasonableness of the accused’s action. What can be gleaned from the ratio is that the court deemed it unfair and faulty to reason. The correct position was underscored in the case of Diaberin v. State where the Supreme Court said: “It is enough if the belief is honestly held and there can be no justification for reading into (section 23) of the criminal code any implied requirement that it should also be a belief which it was reasonable for the accused to hold.” It becomes necessary therefore to join faith with Prof. Okonkwo who hopes that the courts will adhere to this admonition.

CONCLUSION

It will be fallacious to state that morality does not need the aid of law as without the law, there will be no sanctions or prison-scare. Frankly speaking, the role played by morality in legal matters is not so much an eyesore because if in the case of R v. Kingston, the court acquitted the paedophile on grounds that his intoxication was involuntary; then it was as good as the court releasing filth into the society it strives to protect. Legally speaking, it should not be taken home that law’s primary role is to enforce morality – as Lon Fuller enthused. The first part of this piece already stressed that the two concepts are not synonymous. Law is concerned with justice and accompanied by statutes and case laws. The celebrated case of Inakoju v. Adeleke (supra) displayed morality. Although the decision reached by the Supreme Court remains celebrated, the constitution was not generous enough to issue any form of unfettered position in the hands of the judiciary over all matters especially as ouster clauses in s.188 (10) is concerned – bearing in mind that the constitution is the grund norm. Lawyers are trained to apply law to facts (not to morality). If a matter is before the court and has peculiar attributes, where the statute books did not envisage, the discretionary exercise of the bench on the matter if amounting to fairness has morality to be born. In essence, law and morality makes a great team. But then, boundaries should be respected – except it is just ineluctable.

OKOCHA OBED

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