LAGOS STATE UNIVERSITY
FACULTY OF LAW
COURSE
TITLE: JURISPRUDENCE AND LEGAL THEORY 2
COURSE CODE: JIL 502
Question: The term “functional justice”
connotes a perpetual, precarious, and inevitable balancing of jural
relationships between individual citizens inter se on the one hand and citizens
and communal institutions such as government and its agencies on the other
hand. Discuss.
INTRODUCTION
The term ‘Justice’ is a term that has not been given to
certainty of precision notwithstanding the laborious work of both academics and
the learned law Lords in this regard. Attempts have however been made over the
years to define this term ‘Justice’. For example, it is said to be ‘the virtue
by which we give to every man what is his due opposed to injury or wrong.[1]’
The revered Black’s Law Dictionary in its 9th Edition considered ‘Justice’
as ‘the fair and proper administration of laws[2].’
Justice, in essence, is beyond the law. It is applying the law to practical life
situations. Justice is not justice until it is seen to be done and not just
done. Justice is equity; nothing less than this will do. That is to say, that
in the interest of justice, equity should be sought to be applied at all times.
Be this as it may, one should also recognise that it is not in all circumstances
that attaining equilibrium amounts to justice. Christopher D. Marshall (2006) correctly
put it by saying: “Justice is one of those ideas that combine tremendous
emotional potency with a great deal of semantic ambiguity."
The concept of justice has taken on many meanings throughout
history. Aristotle considered slavery to be just and good for both the master
and the slave, while modern society considers slavery the epitome of injustice.
The Bible teaches that justice requires impartiality in some cases and
unequivocal partiality towards the poor in other cases[3].
Modern scholars have attempted to navigate the historical semantic ambiguity
inherent in the term “justice” by deconstructing it and studying the specific
parts of justice. The conception of “social justice” is consistent with
biblical partiality towards the poor and Deutsch’s distributive justice principle
of need. John Rawls (1971) put forth a philosophical argument for this
conception of justice, stating that "each person possesses an inviolability
founded on justice that even the welfare of society as a whole cannot override.
For this reason, justice denies that the loss of freedom for some is made right
by a greater good shared by others."
To Rawls, a just outcome must be beneficial for all and not just for the
great majority, consistent with a need or equality based conception of
justice.
Equity theorists[4]
bring a different focus to questions of justice, instead focusing on whether
the outcomes that a person experiences are proportional to the inputs that a
person gives. Within this concept of
equity, people may still have a different focus. For example, retributive
justice focuses on proportionate punishment of criminals, while restorative
justice focuses on correcting whatever imbalance occurred as a result of a
criminal action. In contrast to both equity theorists and those who focus on need
and equality, utilitarians would argue that whichever distribution rule leads
to maximal average welfare is the most just, regardless of the previous actions
of the parties involved.
Few would argue that any of these conceptions of justice are
unworthy; yet in any given instance, these principles are likely to conflict.
Consider the simple case of a company that needs to distribute some reward
among its employees. Should the company distribute the reward evenly or reward
those who work harder? Should the
company consider the needs of workers who have large families or are close to
retirement age? Consideration of any
justice principle often requires less consideration of another competing
principle. Rewarding hard workers violates the principle of equality while
rewarding those who need it most violates the principle of equity, assuming
those in need do not happen to be those who work the hardest. The fact that any
combination of principles may underlie the layperson’s use of the terms “just”
and “fair” provides fertile ground for our intuitive and emotional systems to
steer us toward definitions of justice that serve our implicit goals.
That is what functional or to put in another word ‘social
justice’ is about. It seeks to put into proper perspective the answer to the
question ‘who should enjoy what benefit or bear what burden, and in what
varying degrees of entitlement or responsibility, in the overall interest of
justice in the society?’ To say Justice is functional is to say in the words of
The Chambers Dictionary: ‘designed with special regard to purpose and practical
use[5]’
or in the words of the Longman Dictionary of American English: ‘designed to be
useful rather than attractive’
Professor Adaramola in defining Functional justice considered
it to be “the application of the rules
and principles of legal justice to social everyday problems that are brought
before the courts and quasi-judicial and administrative bodies.”[6] Functional
justice has to do with solving problems pragmatically and the “even”
distribution of the things among citizens. Thus there exists legal or jural relationship
between citizens and it must be such that every person should respect each
other’s rights and legitimate interests and live in unity and harmony in the
spirit of common brotherhood.[7]
It must be noted that the interpersonal relationship between the citizens is
only but one arm of the concept of functional justice. In fact, the government
and its agencies play a vital role in ensuring the equitable distribution of
justice. This can be seen in Section 13
of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
This section provides that it is the duty of all organs of government and all
of its authorities and persons to exercise legislative, executive and judicial
powers towards the application of the provisions of Chapter 2 of the
Constitution. This process is usually referred to social justice. In fact, government has the sole responsibility of
justice when it is recognised that one of its important arms is the Judiciary.
In addition to the above, communal institutions represented by government and
its agencies relate with their citizens in more ways than one. These
institutions sometimes enter into contracts with their citizens and correlative
rights and duties arise out of the contract. The institutions are also required
the interest of society by ensuring that acts which society considers to be
anti-social are punished and prevented.
From this definition it can be deduced that functional justice
is the application of law to the society. The essence of justice is to ensure
that everyone is treated equally before the law. This process is usually
referred to as social justice and
draws its validity from the “sense of justice”. However, while applying the law
to the society one must consider that the society is made up diverse
individuals, each with their distinct characteristics shaped by the differences
in background or other external factors. Consequently, the effect of the law
will vary from person to person. In order to ensure that everyone is treated
equally before the law, there is need to have a well-defined plan to achieve
this aim and a body established for the purpose of fulfilling this objective.
Drawing from this analysis, government and its agencies must work
towards equitably distributing to every member of the society what is due them.
It is the government and its agencies that formulate a plan for the effective distribution
of the basic needs and legitimate wants of the people. However, the challenge
lies in ensuring this “equilibrium”. Although these basic needs and legitimate
wants can be identified, such as sunlight and warmth, fresh air, good food,
potable water, clothes, shelter and companionship, it is by no means easy to
decide where these basic needs end and wants begin although it is relatively
easy to determine what these basic needs and wants are. It is their effect that
defers from person to person. One can make reference to the provisions in Chapter 2 of the Constitution of the
Federal Republic of Nigeria 1999 (as amended), particularly Section 17(3)(a) which provides that
the State shall ensure adequate means of livelihood. Although the State is
expected by the Constitution to provide for means of livelihood, it is, without
a doubt that the State has not been able to meet this expectation. Even if the
State is in the process of providing for means of livelihood the question that
readily arises is how much or to what extent should a State go to achieve this
aim and how much is or can be considered reasonable?[8]
Moving forward, a relationship (for example the relationship
between a mortgagor and a mortgagee) will usually come with it differing
interests that require protection. These differences in interests imply that
the interests all need to be protected. In protecting these interests, justice
cannot merely be decorative, it must be functional. The Supreme Court has said
so, and we so believe that the ideal of Justice cannot be achieved by the
courts alone. Justice, even more so functional justice, is a function of every
arm of government viz: the Executive, the Legislature, and the Judiciary. Each
has a role to play. In TANKO v. State[9]
said: “…. A court of law, is not
to ascribe meanings to the clear, plain and unambiguous provisions of a statute
in order to make such provisions, conform with the court’s own view or views of
their meaning or of what they ought to be in accordance with the tenets of
sound policy”.
Thus aim of this work is to examine ‘functional justice’ in
the light of the legal relationships of citizens among themselves inter se, on
one hand and the relationships of citizens and communal institutions on the
other hand, while recognising that functional justice is not a one-time thing,
it is perpetual; it is not without its challenges, it is precarious and it is
not something that can be avoided in any society, it is inevitable.
FUNCTIONAL JUSTICE AS BETWEEN CITIZENS
INTER SE: THE NIGERIAN EXPERIENCE
Justice in its functional connotation cannot be separated
from the grundnorm of the society in which justice is to be applied. The basic
legal framework that governs any given society determines the determination of
rights and correlative legal duties as between individual citizens in that
society. In Nigeria the basic legal framework is the 1999 Constitution of the Federal Republic of Nigeria (as amended) and
continues to be subject to amendment from time to time by the legislative arm
of government.
The Constitution in establishing its own sanctity provides in
Section 1(1) that the “constitution is supreme and its provisions
shall have binding force on all authorities and persons throughout the Federal
Republic of Nigeria.” Thus, no examination of functional justice may be
complete without a consideration of what the constitution says about it. The
constitution in its 320 sections and seven schedules provisions tried to
balance the jural relationships that exist among the citizens or more generally
residents of Nigeria.
Chapter 4 of the
Constitution which
protects fundamental rights is instructive in this light. Section 33(1) for example protects the right of every person
(citizens included) to life in these words “Every
person has a right to life, and no one shall be deprived intentionally of his
life, save in execution of the sentence of a court in respect of a criminal
offence[10]
of which he has been found guilty in Nigeria.” This right to life needs to
be balanced with the right of other persons to their life and their property.
Thus, subsection 2 provides that a
person will not be deemed to have been deprived of his right to life if he dies
“in such circumstances as are permitted
by law, of such force as is reasonably necessary- (a) for the defence of any
person from the unlawful violence or for the defence of property; (b) in order
to effect a lawful arrest or to prevent the escape of a person lawfully
detained; (c) for the purpose of suppressing a riot, insurrection or mutiny.”
It may thus be seen here that the citizen’s right to life is balanced with the
right of other citizens to enjoy this same basic right. This is functional
justice and indeed this is justice. Nothing less than this would have sufficed.
In balancing the rights that exist as between citizens inter
se in the light of the constitution, the provision of Section 38(1) whose side note reads “Right to freedom of thought, conscience and religion” is
instructive. The section in effect protects the right of every person to: “freedom of thought, conscience and
religion, including the freedom to change his religion or belief, and freedom
(either alone or in community with others, and in public or private) to
manifest and propagate his religion or and religion, belief in worship, teaching,
practice and observance.” Section
38(3) went on to provide that: “No
religious community or denomination shall be prevented from providing religious
instruction for pupils of that community or denomination in any place of
education maintained wholly by that community or denomination.” Subsection
4 provides that: “Nothing in this section
shall entitle any person to form, take part in the activity of or be a member
of a secret society.”
Section 45(1): “Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall
invalidate any law that is reasonably justifiable in a democratic society –
(a)
in the interest of defence, public
safety,public order, public morality or public health; or
(b)
for the purpose of protecting the
rights and freedom of other persons.”
The jural relationships as between citizens will always need
to be balanced. The constitution being the creation of society has tried in a
number of sections to ensure that justice is done not decoratively but in a way
driven to actualise result that is to ensure functional justice.
FUNCTIONAL JUSTICE AND CIVIL CLAIMS AS BETWEEN CITIZENS
That man is a social animal is a reality that cannot be
denied. He has to interact with other humans in the actualisation of his basic
needs and wants. Thus, as the archetypal social-contract theorist, Thomas Hobbes
has postulated, “so as to secure order and personal security, man had to escape
from this frightful situation by entering into society.” In entering society,
man recognised that he cannot do everything by himself in essence he alone as a
tree cannot make a forest. Thus he postulated that:
(a)
Every
man ought to keep the peace to the best of his ability but when this becomes
impossible he could employ all the means of warfare to defend himself.
(b)
Every
man should be willing, if others are equally so, to surrender his right of
self-defence to a central power and to claim so much liberty in society as he
would grant to his follow citizens.
We turn to the first part of these postulates in relation to
functional justice as to jural relationships between citizens.
The interdependence of citizens means one man’s right is
another man’s duty. The law of contract gives credence to this. A contract is a
promise, or set of promises, for breach of which the law gives a remedy, or the
performance of which the law in some way recognises a duty[11].
Here one man’s right is another’s duty or obligation and the law is put in a
fix in ensuring justice is done as between the two parties. As between a person
who acted on the basis of a promise of another without furnishing consideration
and the promisor, who should have what right or obligation[12].
As between parties to a contract where there is a seemingly frustrating event,
who should be given greater protection by the law, the person claiming a
frustrating event to avoid his obligation under contract or the person who is
entitled to rights under the contract. Justice may thus not be seen from a
straight forward angle. It is full of its inherent challenges. It cannot be
avoided and justice always needs to be done.
The Law of Tort, one of the relics of the common law of
England and Wales offers further credence to the fact that the
interrelationship of citizens leads to one man’s right being another’s duty.
The Law governs the legal relationship that exists between citizens. This law
in balancing the varying claims that may occur in human relationships say some
damages are not legal injuries while some legal injuries may not amount to
damages e.g. trespass. Still yet, some legal injuries must involve damages for
them to be justiciable e.g. nuisance, libel, etc. Once a wrong is considered a
legal injury, it is protected by the law.
This is in furtherance, without much ado, the underlying
foundation of functional justice. Functional justice is balancing of jural
relationships. In this light, the relationship of citizens needs also to be
balanced. Not all claims may be heard in the courts of justice for its
frivolity notwithstanding damage that has occurred. Here lies the precarious
nature of functional justice. At what point should the line be drawn that
remedies will not be available for an aggrieved member of the society. To what
extent can the law go in protecting the sanctity of every human and his
property while not infringing on the rights of others. A man no doubts has a
right to the sanctity of his landed property and protection against the
“slightest” trespass but then this right needs to be balanced with another’s
right of way no more no less. Justice has never been one-sided. Justice is
justice for the plaintiff, the defendant and the State.
NIGERIA’S FEDERAL
CHARACTER COMMISSION AND FUNCTIONAL JUSTICE
The Federal Character Commission is one of the 14 independent
executive bodies established by Section
153(1) of the 1999 Constitution (as amended). It was established however
three years before by the Federal
Character Commission (Establishment, etc.) Decree No. 34 of 1996[13].
It was established to give effect to the provisions of Section 14(3) and (4) of the Constitution which provides as
follows:
“The Composition of the Government of the Federation or any of its
agencies and the conduct of its affairs shall be carried out in such a manner
as to effect the federal Character of Nigeria and the need to promote National
unity, and also command national loyalty, thereby ensuring that there shall be
no predominance of persons from a few states or from a few ethnic or other
sectional groups in that Government or in any of its agencies”.
While Section 14(4) “The composition of the Government of a
State, a Local Government council, or any of the agencies of such government or
Council, and the conduct of the affairs of the Government or council or such
agencies shall be carried out in such manners as to recognize the diversity of
the people within its area of authority and the need to promote a sense of
belonging and loyalty among all the people of the Federation”.
Federal Character by Section
318 of the Constitution is defined to be: the distinctive desire of the
people of Nigeria to promote national unity, foster national loyalty and give
every citizen of Nigeria a sense of belonging to the nation as expressed in Sections 14(3), and (4) of this Constitution[14].
The Federal Character Commission has its offices in all
states of the Federation including its headquarters in the Federal Capital
Territory, Abuja. It performs the function it performs for the Federal
Government in all states of Nigeria. Despite the clamour at the recently
concluded National Conference for its restricting, the role of the Federal
Character Commission in ensuring functional Justice cannot be overemphasised.
It is a direct result of the recommendation of the 1994/95 Constitutional
conference.
Nigeria being a country divided along different ethnic groups
adopted the concept of Federal Character in order to ensure that every ethnic
group is represented in the central government and its parastatals. This
necessitated the establishment of the Federal Character Commission. However, in
reality this concept seems to be fictitious as positions and employment to the
central government still tilts to one side in favour of a particular ethnic
group. At first glance, looking at the heads of the executive and legislative
arms of Government, the president is from the South-South geopolitical region
of Nigeria, the Vice-President is from the North-West, the Senate President is from
the North-Central, the Deputy Senate President is from the South-East, the
Speaker is from North-West and the Deputy Speaker is from the South-East. It is
clear that the North- East and the South-west are not represented in the top
six political offices. This brings to
bear the reality that justice is not functional unless it continues to exist
and not when it existed some time past. Thus the question may be asked: why
should the top six offices have people from each region represented? The
readily available and logical answer to this question is that such an ideal
system gives each region a sense of belonging to the central government and not
to some ethnic and parochial interests. The central takes precedence to the
ethnic.
In considering the agencies of government and the reality of
federal character and thus functional justice in these agencies, certain points
need to be pointed out:
1) About 70% of
Nigeria Foot-soldiers are Hausa-Fulani.
2) About 80% of all
Permanent Secretaries in Federal Ministries are Hausa-Fulani.
3) About 80% of those
given Oil Wells presently in the Oil from Niger Delta Region are Hausa-Fulani.
4) About 60% of
Generals in the Nigerian Military are Hausa-Fulani. Only recently did a person
from the South-East of the country rise to the head of the Nigerian Military
through Lt-General Onyeabo Azubuike Iherijika.
5) About 60% of the
Heads of Parastatals are Hausa-Fulani.
6) About 70% of the
Top Posts in People’s Democratic Party (P.D.P.) are Hausa-Fulani.
7) About 60% of the
Top Ranks in Nigerian Police Force are Hausa-Fulani.
8) About 70% of
Nigerian State Security Services (SSS) men are Hausa-Fulani.
9) About 60% Top Posts
in each of: Nigerian Prison Services, Nigeria Immigration and Nigerian Ports
Authority are Hausa-Fulani.
10) In the JAMB Office
about 90% of the employees comprise of both the Hausa-Fulani and the Yoruba
tribes.
11) At the Federal Secretariat
Abuja Central Area Complex more than 80% of all the employees comprise of both the
Hausa-Fulani and the Yoruba tribes.
12) At the Nigerian
Universities Commission (NUC) about 95% of the professors and workers are
comprised of the Hausa-Fulani and the Yoruba tribes combined.
13) In all the Federal
Universities, Federal Colleges of Education, Federal Polytechnics about 90% of
all the Registrars and Bursars are either of the Hausa-Fulani or the Yoruba
tribes.
14) Of all those given
appointments to serve on behalf of Nigeria in both African Union and United
Nations about 98% of them are from the Hausa-Fulani and from the Yoruba tribes
15) About 70% of all
the Ambassadors and High Commissioners are from the Hausa-Fulani and the Yoruba
tribes.
16) About 95% of all
the employees (staff) of Nigerian High Commissions and Ambassadors abroad are
from the Hausa-Fulani and from the Yoruba tribes.[15]
It can be deduced from the above statistics that the figures
do not in any way paint a true picture of Federal Character. It leaves the
reader wondering ‘Where is the so-called Federal Character?’ Historically, this
has always been the reality of the Nigerian nation. The Nigerian experience has
been an experience of suspicion among the major ethnic groups that make up the
nation. The Hausa-Fulani is suspicious of the Yorubas and Ibos. The two other
nations are suspicious of each other and of the Hausa-Fulani. The hegemony
presently being enjoyed by the Hausa-Fulani is not a thing that happened today.
It has always been with the Nigerian state. The British-Colonialists in order
to ensure its pet project, that is to say, Nigeria remains as it established
found a “puppet” in the Hausa-Fulani. Upon the belief that it has large land
mass and that it is a disadvantaged nation educationally and perhaps
infrastructurally[16],
the Hausa-Fulani has historically arrogated rights to itself, believing that it
is her sole right to always rule and run Nigeria. The Nigeria has even helped
in enthroning this hegemony by the reality of the incontrovertible statistics
that has been highlighted above.
How then can this be
balanced, is this functional justice? It must be remembered at all times that
Justice must always consider its subject, in this instance the Hausa-Fulani
region. No doubt, this nation constitutes a larger part of the Federation in
terms of land-mass and no doubt it is advantaged educationally. Thus, its non-representation
in the major parastatals of government may lead to its interests not being as
protected as it should be and lead to the reasonable suspicion that its
interests are not being protected. Despite this, a balance must be stuck. This
balance must ensure that deserving members of other ethnic groups will have an
opportunity to rise to the top of any parastatal of government they find
themselves.
THE THREE ARMS OF
GOVERNMENT AND THEIR COLLECTIVE RESPONSIBILITY IN ENSURING FUNCTIONAL JUSTICE
It was
earlier mentioned that the government and its agencies play a vital role in
ensuring equitable distribution of justice. Reference was also made from the
provisions of Section 13 of the 1999
Constitution which provides that: “It
shall be the duty and responsibility of all organs of government, and all
authorities and persons, exercising legislative, executive or judicial powers,
to conform to, observe and apply the provisions of this Chapter[17]
of this Constitution.” It can be deduced, therefrom, that all organs of
government, namely the executive, the legislature, and the judiciary, all must
work collectively in advancing and achieving the aims set out in the
Constitution. This collective responsibility is not restricted to Chapter 2 of
the Constitution alone but it extends to all laws laid down in the country. In
doing so each organ of government work towards achieving the most desired
functional justice. The contribution of each organ of government to ensuring
functional justice shall be discussed in turn.
1.
The Executive
The
executive arm of government is that organ of government which is vested with
the responsibility of enforcing the law. As a machinery of ensuring functional
justice, the executive ensures that every person in the State is treated before
the law equally and that every person is given what is due them under the law.
For example, every person is entitled to be protected. The police force which
is saddled with the responsibility of maintains law and order makes sure that
every person in the State is protected. Although this is true in theory at
times in practice the contrary is what holds sway. There have been instances
where some people were subjected to police brutality. It is our contention that
any force applied, so long as it is not justifiable, is a misapplication of law
and order and, in effect, justice. Chapter 6 of the Constitution makes
provision for the executive arm of government.
2.
The Legislature
The
legislature is the organ of government which is in charge of making laws in the
State. The laws made must be of such a nature that they are in the interest and
for the common good of every member of the country and for the country as a
whole. The legislature has to be careful so as to ensure that the law does not
harm certain persons so as not to cause an injustice. Chapter 5 of the Constitution makes provision for the legislative
arm of government.
3.
Judiciary
The
judiciary is the organ of government responsible for the interpretation of the
provisions of the laws in the State. Thus where any individual brings an action
before the court for redress, the judiciary is responsible for weighing the
facts brought before it and subject them to the provisions of the laws in the
State. The court, in weighing the facts before it, ensures that justice be
served. Chapter 7 of the Constitution
makes provision for the judicial arm of government.
INCIDENTS OF FUNCTIONAL
JUSTICE IN JURAL RELATIONS
In any human society there are benefits and burdens that
exist in the things of nature, which must be recognised, accepted and shared.
The following incidences of functional justice shall now be expatiated.
BENEFITS
1.
Claims
A claim is a right which entails that another person has a
duty to the right-holder. Somebody else must do or refrain from doing something
to or for the claimholder, such as perform a service or supply a product for
him or her; that is he or she has a claim to that service or product (another
term is thing in action).[18]
Claims may be divided in to 2 categories:
i.
Claims
correlative to positive duties
ii.
Claims
correlative to negative duties
Claims correlative to positive duties refer to those claims
which can be made against individuals and those made against the State. Claims
maintainable against an individual may arise from voluntary commitment which
may come in form of contract, whether in valid contractual or quasi contractual
situations. For example, where a person enters into a contractual relationship
with another party, that party has a right to claim against the other where
there is failure on the part of the party to fulfil the terms of the contract.
This is because the institution of the contractual relationship instils a duty
or a set of duties on each party. Consequently each party has a claim against
another where the terms of the contract are not followed.
Claims maintainable against the State on the other hand are
derived from policy. The State is expected to provide, facilitate, and protect
the basic sustenance and amenities to its citizens. It is their duty to take
care of the basic needs of people within the State. Each person within the
State has an equal right or claim to these necessities. However, making
available these necessities to every individual has proved to be a herculean
task. This is because it is nearly impossible to ensure the equitable
distribution of these necessities. A cursory look at Chapter 2 of the Constitution of the Federal Republic of Nigeria 1999
(as amended) brings about the impression that in Nigeria the government
through the instrumentality of the Constitution made a commitment to provide
certain necessities to every single individual within the State. Unfortunately
this is deemed non-justiciable by virtue of Section 6(6)(c) of the Constitution. Therefore even if the State is
expected to provide for example shelter as provided for in Section 13(2)(d) of the Constitution then a person who is entitled
to but is not given shelter cannot bring an action before the court to enforce
this right. Also health care is a necessity expected to be provided for and
shared equally to all persons. However the State is hardly capable of making
this available. A good example of this is the health care scheme in the United
States of America. Not everyone was covered by the healthcare scheme. This is
because not everyone was able to afford it. In order to cater for more people,
the American government provided for a cheaper health care scheme. The
overwhelming turnout was proof of the fact that prior to the new health care
scheme, health care was inaccessible to many.
Claims correlative to negative duties are those claims
concerned with negative individuals and government duties such that everyone
has a duty to each other and in the same vein the State has a duty to protect
every citizen equally even when they profess claims that are correlative to
negative duties. For example, the duty of a State not to give any citizens less
protection unless, however, he has forfeited his claims to protection whether
by wrongful conduct[19]
or by election[20]
2.
Power
Power is the right, authority and ability to take some action
or accomplish something, including demanding action, executing documents,
contracting, taking title, transforming exercising legal rights and many
others.[21]
Legal power may be divided into 2 types:
i.
Power
to contract or alienate one’s property by will[22]
(which denotes capacity)
ii.
Power
to administer society either politically or judicially (which denotes
authority)
Power to contract or alienate one’s property by will does not
raise any problem as regards equal distribution. This is because each person is
conferred with the power to contract or alienate his property through the use
of a will. However this power excludes infants, lunatics and imbeciles due to
their lack of capacity to enter into contract.
When it comes to power to administer society, such power
cannot be equally disturbed. The reason for this is that not everybody can be
conferred with the same authority to govern the State. Thus this nature of
power is such that it is distributed unequally. For example, in a democratic
society leaders are elected into power by the citizens of the country. Where
the citizens exercise their franchise they directly confer upon the elected
candidate the authority to govern them. Governing of a State is not one that is
done by everyone in the State but by certain individuals, who in a democratic
society are elected into power.
3.
Liberties
The term liberties denotes freedom to act or to refrain from
acting or to use or refrain from using one’s own property or interest, be it
corporeal or incorporeal, in the way one chooses. Certain liberties have been
codified into law. For instance, the freedom of expression and the press is
provided for in Section 39 of the
Constitution, freedom of movement is provided for in Section 41 of the Constitution are just some of the numerous
liberties codified in Nigeria.
Liberties are equitably distributed among everyone in
society. Thus every individual in society is free to move as he pleases,[23]
or acquire an immovable property[24].
It is important to note that the freedom of one stops where
another’s is being infringed upon. Therefore liberties must be recognised and
protected but must not in any way be abused. Where a liberty has the tendency
of being abused, laws must be put in place to either restrict or remove this
liberty. However, where a liberty is of such a nature that it is repugnant or outrageous,
such liberty should not be permitted, recognised or protected by law.
Liberties are equitably distributed among everyone in
society. Thus every individual is free to move as he pleases, Section 41 or acquire and own immovable
property.[25]
For example, Section
43 gives one the right to acquire and own immovable property but this does
not mean that because one has the right to own and acquire immovable property
does not give such person the right to compulsorily acquire immovable property
that lawfully belongs to another without following due process.[26]
4.
Immunities
The concept of immunity total negates the principle of
equality before the law. This is due to the fact that while some are under
effect of the law, some are excluded. A good example of this is the immunity Section 308 of the Constitution. This
section prevents anyone from instituting any legal proceedings against them. Although this breed inequality, immunity of
head of State and their deputies is for the purpose of ensuring that they carry
out their duties without any fear or favour. It must be noted however that
exclusion from legal proceedings only subsists during the tenure of the Head of
State and their deputy. Thus it can be inferred that immunity is something that
comes with the office. In the same vein diplomats by virtue of Diplomatic Privileges and Immunities Act
1962 are accorded diplomatic immunities.
BURDENS
Disadvantages may arise in three forms, namely: duties or
obligations, liabilities or disabilities.
1.
Duties
A duty is a legal obligation that is owed and due to another and
that needs to be satisfied; an obligation for which somebody else has a
corresponding right.
There are three categories of duties, viz
a.
Duties
imposed under the law of tort
b.
Duties
imposed under criminal law and
c.
State
duties which may be called ‘societal’ duties.(duties imposed by the state)
Under the law of tort, as was seen in the popular case of Donoghue v Stevenson, every individual
owes a duty of care to those around them. Where there is a duty and that duty
has been breached and the person to whom the duty was owed suffers a loss as a
result of that duty then the wrong doer will be liable. This is one of several
duties imposed under the law of tort.
When it comes to criminal law, the Criminal Code makes provision of acts and omissions when will be
considered as criminal. Usually a criminal matter is such that it affects the
State as a whole. It must be noted that in the interest of justice the
defendant will be seen in the keyes of the law as innocent unless proven guilty[27]
beyond reasonable doubt.[28]
An example of a duty imposed by the State is the payment of
tax. This is provided for in Section
24(f) of the Constitution. Payment of tax is a civic responsibility and
every person is expected to pay tax. The money collected in form of tax is
channelled for the betterment of the State as a whole. It is used to provide
amenities to the public and to ensure that everyone is catered for.
These three categories of duties above are invariably imposed
on individuals as a matter of public policy.
Ensuring that justice is done by the individual, involves a
delicate balancing of widely different interests and considerations. Although they
may be justified on the basis of societal policies, norms and values because
their allocation is based on ever-changing societal values, no precise or
enduring formula can be devised for their incidence.[29]
2.
Liabilities
The term liability may be defined as the quality or state of
being legally obligated to or accountable for; legal responsibility to another
or to society, enforceable by civil remedy or criminal punishment. Liabilities
can be divided into two kinds:
i.
liability
under the judgement of the court of law
ii.
liability
to the state in certain matters.
In the case of a court judgement, liability is usually
discharged by compliance with the order of the court, or inappropriate cases by
various enforcement procedures such as attachment, garnishee, fieri facias, and
commitment.
In view of these consideration, it is the sacred and moral
duty of duty government ultimately of courts, to ensure an equitable
distribution of these state-imposed liabilities. Thus, in the practical
sociological sense, account must be taken of all the factors that are relevant
to the attainment of genuine equality among citizens and in particular, of the
consequences of a basically or manifestly unjust distributive justice.[30]
3.
Disabilities
Disabilities are usually imposed on persons or group in a
variety of circumstances. Thus, un-discharged bankrupts, aliens, woman, infants
and the mentally ill are, for instance, by law incapacitated to exercise
certain right and privileged otherwise available to other citizens, such as the
right and privileged or liberty to enter into a contract or deal with realty.[31]
CONCLUSION
To wrap up on this daunting yet all the while interesting
discuss, it is instructive to point out that functional justice is justice in
motion. It is always on the move to ensure that the jural relationship between
or among citizens is given a balance and that the same relationship between
communal institutions like government and its agencies and members of the state
is balanced. No idea of justice in the real sense of the word can avoid
bringing to bear the ideal of functional justice and despite this; the arbiters
of justice are always faced with the challenge of ensuring that justice is not
just done but it is done acceptably.
[1]
Jowitts Dictionary of English Law, 2nd Edition at page 1982
[2] At
page 942
[3] Marshall
(2006)
[4] Walster,
Berscheid, & Walster, (1973)
[5] Pg
646
[6]
Adaramola, Funsho, “Jurisprudence” LexisNexis Butterworths, 2008 pg. 207,
[7] Section 24(c) of the Constitution of the
Federal Republic of Nigeria 1999 (as amended)
[8]
See also Section 17(3)(c),(d), and (e)
[9]
(2009)1-2SC (Pt. 1) at page 198
[10]
Such offences include the offence of murder, treason under the Criminal Code Sections 37, 316, 319
[11]
Samuel Williston, A treatise on the law of contracts, 3rd ed. 1957
[12]
As seen the well celebrated case of Central London Property LTD v. High Trees
House LTD (1947) KB 130 also
referred to as High Trees Case.
[13]
It is now to be found in the Laws of the Federation of Nigeria 2010
[14]
See also www.federalcharacter.governor.ng and its addition of: “notwithstanding
the diversities of ethnic origin, culture, language or religion which may exist
and which is their desire to nourish and harness to the enrichment of the
Federal Republic of Nigeria”
[15]
Please see in this light, the instructive article published in: http://chrisdonasco.blogspot.com/2014/02/federal-character-princinple-and-in.html
[16]
The reality of the Almajiris in many parts of the Hausa-Fulani region is a
testament to this.
[17] Chapter 2 of the Constitution of the
Federal Republic of Nigeria 1999 (as amended)
[18]
http://en.wikipedia.org/wiki/rights
[19]
For example the offence of treason which is a direct act against the government
where a person tries to overthrow a sitting government. At that point the
government is duty bound to protect her integrity by bringing to book such
offender.
[20]
As in the case volenti non fit injuria
[21]
Copyright 1981-2005 by Gerald N. Hill and Kathleen
<http://legal-dictiontionary.the freedictionary.com/power
[22] Inter vivos
[23] Section 41 of the Constitution
[24] Section 43 of the Constitution
[25]
ibid
[26] Section 44 of the Constitution
[27] Section 35 of the Constitution of the
Federal Republic of Nigeria 1999 (as amended)
[28] Section 135 of the Evidence Act 2011
[29]
Adaramola, Funsho, “Jurisprudence” LexisNexis Butterworths, 2008
[30]
ibid
[31]
ibid
Superb work. Should have been better if an accessible download link had been added.
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