Law and Morality: A Tale of Two Courts

The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com Court of Public Opinion v Court of Law: Law and Morals

The discrepancies between the perspectives of the court of public opinion and a court of law in Nigeria stem from the primary differences in their foundations—morality and emotions versus statute and legal principles. This divergence is often attributed to the theory of "Inclusive Legal Positivism," which posits that law and morality, while conceptually distinct, can intersect in certain instances.

For example, actions deemed immoral, such as incest, may not be unlawful, whereas theft is both immoral and illegal. Moreover, certain practices like abortion, although considered morally equivalent to murder and religious sin, might not be illegal in all jurisdictions, often referred to as the "right to choose" in specific regions.

Nigeria operates under a legal framework that maintains a separation of morality and law, consistent with the provisions outlined in the 1999 Constitution of the Federal Republic of Nigeria. This constitution explicitly excludes criminal jurisdiction from Customary and Sharia Courts, thereby limiting the scope of immoral acts or offenses that can be considered statutory offences in Nigeria.

Consequently, moral transgressions like fornication and telling white lies, which are widely regarded as immoral across various religions, remain unaddressed by Nigeria's legal system under the purview of criminal law, as these are protected under fundamental rights such as freedom of speech and association (see Sections 39(1) and 40 of the Constitution).

However, the Constitution itself is not self-executory, meaning it does not automatically translate into operational legal codes. Instead, most provisions require the enactment of supplementary laws, institutions, and procedures to function effectively. The Constitution establishes the framework for governance, delineates power allocations, and sets forth principles and limits.

While some clauses are immediately enforceable, conferring jurisdiction, creating offices, or invalidating conflicting laws, others establish goals and duties, entrusting the specifics to subsequent legislation.

As Nigeria approaches its eighth general election since the advent of the Fourth Republic, the constitutional framework outlines the qualifications and disqualifications for various elected positions, including President/Vice President, Governor/Deputy Governor, National Assembly members (Senate and House of Representatives), and State House of Assembly.

Despite specifying the qualifications and disqualifications for these roles, the Constitution does not explicitly dictate the procedures for handling challenges or disputes arising from these provisions. This lack of clear guidance leaves certain ambiguities unaddressed, either due to vague language or the interpretation of circumstantial evidence.

In specific cases, disqualifications are relatively straightforward, such as age requirements or criminal convictions. For instance, a candidate must be at least 35 years old, a criterion not to be bypassed in favor of circumstantial or speculative evidence. However, other disqualifications, such as those related to criminal records or past convictions, are more nuanced.

A person convicted of a non-dishonesty offence, such as armed robbery, would not be barred from running for office under the 10-year rule stipulated in the Constitution, provided they have not been found guilty of a dishonest offense within the preceding decade. The Constitution further outlines that a person convicted under criminal law is presumed innocent until proven guilty (Section 36(5)), akin to the principle of "innocent until proven guilty."

Ultimately, while the Constitution serves as the supreme legal authority, its presence does not guarantee immediate or seamless implementation of legal standards. The need for supplementary legislation and robust judicial processes remains crucial to bridging the gap between moral principles and legal enforcement, ensuring that justice is fairly administered without undue reliance on public sentiment or prejudice.