THE ROLE OF TRADITIONAL RULERS – SANUSI THE GENIUS: A CASE STUDY (6)
“Nigeria deserves an homegrown Constitution that will reflect our peculiarities”.
In rounding off my discussions on the paramountcy of traditional rulership in pre-colonial and post-independent Nigeria, I consider it expedient to reiterate the need to accord monarchs and traditional chiefs across Nigeria the much-needed constitutional recognition in the running of governmental affairs across the country, particularly owing to their closeness to the grassroots and their time-hallowed relevance in the socio-political affairs of their domain.
Making a case for the inclusion of Traditional rulers in the Constitution
The need to incorporate traditional rulers in contemporary governance in Nigeria has been subject of divergent points of views. Some have argued that traditional institutions are anachronistic and ill-positioned to conform to modern democratic realities. For others, traditional institutions form the very core of governance in the formerly scattered nation-states now known as Nigeria and as such, should be preserved and allowed to co-exist with the democratic governance in vogue. Nevertheless, it would seem that the call for greater participation of traditional rulers in governance outweighs the school of thought embracing their sustained irrelevance.
Orji Kalu noted, and I agree, that making a case for constitutional recognition of royal fathers is borne out of the conviction that the traditional institutions are still highly respected in most communities in the country and for wielding considerable political and economic influence, and therefore there is every need to assign specific roles to them in the Constitution. He added that there is also the need to harness the strategic position they occupy in their communities to bring government closer to the people, and that is the only way government could penetrate the grassroots.
The clamour for constitutional roles for traditional rulers is further fuelled by the rise of elite traditional rulers with demonstrated record of intellectual and administrative proficiency in the public or private sector, or both. Without a doubt, many post-independent traditional rulers had attained an enviable highpoint in their respective professions before ascending the throne. For instance, the recently-deposed Emir of Kano who has been a focal point of our discourse in the course of the past few weeks, was the Governor of the Central Bank of Nigeria. Few other examples include the Ooni of Ife, the Olugbo of Ugbo Kingdom, among others, attained prominence in various fields prior to their ascendancy to royalty.
The Creation of House of Chiefs under the British Constitutional Authorities
Prior to the constitutional reviews which began in 1944, traditional rulers had played an active role in elective politics in urban areas and upon the series of subsequent constitutional reviews, significant roles continued to be assigned to traditional rulers within the sphere of British Colonial governance. The 1944 Richards Constitution established a representation based upon the notion of regionalism in both the Houses of Assembly as well as the Legislative Council. At the regional level, the Constitution established a House of Assembly in each of the three regions, as well as a House of Chiefs in the North. Each House of Assembly included both official members, i.e. those appointed by the Governor, as well as unofficial members who were selected for the most part, by the council of traditional rulers, otherwise known as the Native Authorities Council, from amongst themselves.
In the North, a House of Chiefs was created to supplement the House of Assembly. Membership in the House of Chiefs included all First-Class chiefs as well as not less than ten Second Class chiefs, selected by their own order. The subsequent 1951 Macpherson Constitution equally gave some relevance to traditional institutions. In the subsequent Lyttleton Constitution, the role of traditional rulers in government greatly reduced from that of an active and equal role in the formation of policy, as seen under the Macpherson Constitution, to a substantially advisory one. Senior traditional rulers were excluded from standing for election to the House of Assembly or the House of Representatives by virtue of their automatic membership in the House of Chiefs.
The Status of Traditional Institutions upon Independence
The role and relevance of traditional rulers under British colonial administration suffered a steady, continuous decline and upon independence, some of the attributes of the British colonials, including ensuring the sustained irrelevance of traditional institutions, continued to hold sway. Nevertheless, at that time, many traditional rulers were appointed as members of House of Chiefs in the North, East, West and Midwest Regions, and had continued to wield some form of influence in the newly established political structure. For instance, the Ooni of Ife, the late Oba Adesoji Aderemi, was elected into the House of Representatives and appointed a federal minister. He also served as the Governor of the Western Region between 1960 and 1960.
However, at the time of the military coup in 1966, traditional rulers had seen their role eroded from that of being members of the House of Representatives to that of being members of a largely advisory body. Just as the elected politicians, the military regime sought to undermine the political influence wielded by the traditional rulers so that popular loyalty shifted towards the state governments. In the early years of military control, the traditional rulers were allowed only a minimal role in the wider political process and its newly created legislative apparatus.
The role of Traditional Rulers in Customary Arbitration
As I had noted earlier, traditional rulers play major administrative and adjudicatory roles within the confines of their geopolitical domain. In reality, the practice of dispute settlement using the process of arbitration is as old as the Nigerian society under the nomenclature of ‘Customary Arbitration’. The Supreme Court, per Karibi-Whyte, JSC in Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 407,noted the essence of customary arbitration thus:
“It is well accepted that one of the many African customary modes of settling dispute is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which either party is free to resile at any stage of the proceedings up to that point. This is a common method of settling disputes in all indigenous Nigerian societies.”
Generally, in precolonial Nigeria, there were different ways of dispute resolution in various communities. The mode depended to a large extent on the type of community, that is, whether centralized or not centralized. Also, the choice of a dispute resolution mechanism within a particular society is strongly influenced by the peculiarities of traditions, culture and legal evolution of that society. Therefore, within any given culture, appropriate mechanisms of conflict resolution are cultivated to meet the society’s practices and traditions. Regardless of which society and customary practice, traditional rulers play significant roles in customary arbitration. For instance, in the South Western Nigeria, as noted by Abdul O.Y (2002), disputes were resolved among the indigenous Yoruba through the appointment of chiefs by the Oba. The eminent chiefs served as arbitrators between disputing neighboring villages. Occasionally, the Oba hears disputes in his palace by way of review, usually at the request of a party who alleges bias on the part of the arbitrator. Similar procedures existed in the East and Northern parts of the country.
Customary law, and by extension, customary arbitration, is generally recognized and preserved by Section 315(3) and 4(b) of the 1999 Constitution. Section 315(3) provides:
“Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law…”
”Existing law” was defined in Section 4(b) as any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date. From this definition, customary law, having been in existence before the coming in force of the 1999 Constitution, already enjoys some form of recognition by the 1999 Constitution. It then begs the question: if customary law is, in a way, preserved by the 1999 Constitution, why then are traditional rulers, the repository of the customs and traditions of their people, not accorded the much-needed recognition, at least for their closeness to the grassroots?
No doubt, the call for the recognition of traditional rulers in modern day governance has been subject of many discourses over the years. Recognizing the role of traditional institutions in grassroot governance, and the wealth of influence they wield, Senator David Mark once remarked “we will continue to assist our traditional rulers and leaders who are responsible for unity, peace in order to further strengthen their roles. We shall find specific roles for them in the constitution when we finally review the 1999 Constitution”. However, the outcome of this statement remains to be seen.
In view of the above, I therefore strongly recommend that monarchs and traditional chiefs be bestowed some constitutional functions in subsequent reviews of the Constitution. This will not only accord them universal relevance within the Nigerian polity, it will further ratify the importance of traditional institutions in the development of grassroot politics in the nation.
Furthermore, I recommend the reconstitution of the House of Chiefs in the Nigerian legislative scene, at both state and federal levels. Without a doubt, these monarchs and chiefs, being closer to the grassroots than elected representatives, are better positioned to represent the local populace. They live in the area where they rule, and therefore, are more suited to know the immediate needs of their environment, much better than an elected legislator who, most likely does not reside within the constituency he purportedly represents. Even if these House of Chiefs are not actively involved in the sponsoring and passage of bills into law, at least, they can serve in an advisory role to make recommendations and suggestions which will further enhance the legitimacy of those laws. Elderly citizens who are accomplished and have made indelible contributions to the society may also be included in this body. Such elders must be men and of integrity who by virtue of their age and accomplishment will not be susceptible to some of the vices common to our politicians. Their responsibilities will include making recommendations to the government on matters relating to policy formulation, application of customary laws and traditions to contemporary issues, among others.
As I have noted on several occasions, Nigeria deserves an homegrown Constitution that will reflect our peculiarities. These peculiarities include our traditional systems which served us so well in the past. As we seek to prepare for the future by addressing the problems and challenges of the present it will help if occasionally we take the time to look back and draw lessons from the past.
AARE AFE BABALOLA SAN, CON