29th April, 2013
By Bamidele Aturu
“The quantity and quality of crime in a given society is inseparable from the prevailing conditions of life at the time of analysis…To take crime out of its social context and to try to explain it as the product of a minority of unfortunate individuals apparently ‘outside’ the bounds of conventional society has been a cardinal sin of traditional criminology”
The burden of asking a non-academic to give a lecture to an audience comprising distinguished scholars in diverse fields can only best be imagined. My trepidation was compounded by the wide latitude I was given to choose my own topic. But as God would have it, two separate but related occurrences in the polity within a space of about two months from each other quickly came to my rescue. On the 29th of January, 2013, Justice Abubakar Talba of the FCT High Court convicted John Yakubu Yusuf, a former Assistant Director at the Police Pensions Office of criminal misappropriation and sentenced him to two years imprisonment and an option of fine of N250,000 on each of the three counts. The convict was prepared and he promptly paid the fine which came to N750,000 and drove freely and gloriously out of the court premises. Of course, the sentence considered by a broad segment of the Nigerian society, to be embarrassingly lenient, caused uproar. But while the dust raised by the sentence was yet to settle, news emerged from Abuja-something scandalous always come out of Abuja these days by the way -that the Council of State on the 12th of March 2013 had granted pardon to the former Governor of Bayelsa State, Mr Diepreye Alamieyeseigha, known as Alams for short. So, I settled for an examination of the topical issue of crime and punishment, but this time against the context of the nature of the state. The advantage which I hope will be had by the topic is that it would help us crosscut at least two disciplines in the faculty, namely: sociology, and political science.
The arguments I intend to pursue are simple. But I shall consider my aim achieved if I give them a new cogency. First, the definition of crime at any particular period is an imposition of the will of the ruling class that constitutes the state during that period. Second, punishments for crimes or the enforcement of the criminal law in spite of denials to the contrary is not a moral issue but part and parcel of the discretion of the state. Third, the negation of the existing system that imposes the existing unjust crime and punishment regime is also not a legal or just a moral matter but can only happen by political means.
Crime: definitions or statement of interests?
There is no universally accepted definition of crime or even criminal law; nor can there be. Every definition of a social phenomenon or concept regardless of what their proponents claim is ultimately and invariably grounded in certain values or world-view to which they subscribe consciously or unconsciously. It is therefore an exercise in intellectual ignorance (pardon the oxymoron), or academic sophistry, if not blatant dishonesty, to pretend to search for or offer universal definitions of concepts in a world without universal interests. As may soon become obvious we think that the dominant ideas in the world today are those of the few members of the propertied classes. Our contention is that because of their numerical smallness their ideas are inherently and by definition undemocratic, that is, if democracy is conceptually majoritarian. So, we subscribe to every practical and theoretical efforts aimed at changing the existing world order and replacing it with a system that ensures that the majority of the people are in control of social life in the world in general and in Nigeria in particular. This is the ideological presupposition or underpinning of this paper. So those who want to challenge our arguments or prescriptions should be in no doubt as to where we stand on the ideological spectrum. We may now resume the main task, having declared our interest.
The words ‘crime’ and ‘offence’ are used interchangeably in Nigerian penal statutes. A crime is defined typically by those statutes as ‘an act or omission which renders the person doing the act or making the omission liable to punishment under this Code, or under any Act, or law’3. Without doubt this is an unhelpful circular or tautological definition. For if we then seek to know what is punishable by law we end up answering that they are those acts that are defined as crimes. It is therefore necessary for any serious enquiry on the matter to examine the source of lawmaking in a particular society in order to gain a useful understanding of the concept of crime. This is unavoidable as there are extralegal considerations that come into play in the decision to make some acts and omissions crimes and other acts and omissions lawful. As we shall see later, even the decision to prosecute let alone punish for acts or omissions that are forbidden by a statute is not necessarily a legal decision. Also, the dynamic nature of crime in terms both of temporality and cultural relativity impels us to probe into the extralegal foundations of the criminal system. When we speak of temporality, we mean that some acts or conducts that were regarded as crimes previously are now decriminalized. One example should suffice. Until 1989, it was a crime in this country to wander even as citizens. People still move around in the night as they used to do when doing so was a crime. But now they cannot be arrested for simply doing that. So, what has changed? It is simplistic to say of course it is the law that changed. We need to know why the law changed. Cultural relativity is used to explain the fact that some acts are criminalized in some cultures or societies and are not in others. In Nigeria, the readiest example is the differing attitude of the penal statutes to adultery between the Southern and Northern states. While adultery is not a crime in the South, it is in the North. It is pretty clear, therefore, that there is no such thing as an objective theory of criminal law. So, our fundamental thesis is that criminal law and the system that produces it rest on a foundation that is beyond the law. This contribution is essentially devoted to probing into that foundation.
The State and the Criminalisation Process
It seems fairly incontestable that the State is the modern formulator of laws and the creator or embodiment of legal institutions that enforce laws. It is therefore imperative that we devote some attention to a rigorous examination of the State. Of course, there are different types or kinds of state. Although we intend to do a characterization of the Nigerian State or States such as it and highlight what distinguish them from other States- we refrain from using the words, normal states, to avoid the controversy and distraction that that may generate or occasion-, it is useful to begin by setting out our general conception of the state.
The State has been a subject of broad and wide-ranging academic discourse, and expectedly, there exists a vast literature on it. While, we will not review the abundant literature here, we intend to discuss briefly two theoretical perspectives on the state. The first views the state in institutional terms and focuses on the functions of its organs. Gianfranco Poggi’s general definition of the state seems typical of the perspective of the institutionalists. According to him, the state is ‘a complex set of institutional arrangements for rule operating through the continuous and regulated activities of individuals acting as occupants of offices’9 There is the other view, shared by scholars of the Marxist tradition, which conceives the state as the instrument of class domination of society by the capitalists or the bourgeoisie. Incidentally, there is a passage in Poggi’s The Development of the Modern State that seems to corroborate this view. In describing the liberal state he made the point that it was ‘constructed to favour and sustain through its acts of rule the class domination of the bourgeoisie over the society as a whole’ and that ‘the equality of all individuals before the law made sense as a constitutional principle because as a matter of course the legal protection of private property directed the order-keeping, law enforcement, and repressive activities of police and courts to favour the interests of the propertied groups’10
Viewing the state as simply a set of institutions is rather problematic. The definition does not pose or answer the questions: Which class sets up the institutions and dominate it? What are the interests protected by the institutions?; Can the state be reconstituted? And, If so, how? et cetera. This definition which presents the state as acting on behalf of the whole society, as if the institutions are voluntarily set up by all, and does not indicate the specific interest(s) which it serves, contradicts our knowledge or position that society is made up of different interests and classes. If we proceed from the premise that the Nigerian society is made up of different classes, as I do, then one can easily appreciate that the Nigerian state does not exist and can possibly not exist to protect the interest of all the classes of Nigerians. In other words, the Nigerian state is the instrument of the dominant class, the propertied class, for the protection of the interests of that class and necessary subjugation of the interests of the working class. There are ample writings to justify my conclusion on the existence of class and the relevance of class analysis to the Nigerian polity that I do not feel obliged to furnish further elaboration as that is not my aim in this paper. Although I am not unaware of the debate as to the danger of economic determinism or reductionism if one fails to take into consideration other sources and kind of oppression in the society and the possible contributions to the struggle for social change from the new social movements (like the environmentalists, gender and cultural activists), my view is that the fundamentality of class analysis in any study of bourgeois state is not debunked by the existence of those other sources and in the same vein, the centrality of the labour movement to the process of change is not displaced by the new movements which are undoubtedly relevant to the general struggle. I agree with Young man that multiple causality ‘does not diminish the importance given to the concept of class and the methodology of class analysis. Gender, ethnic and racial inequalities may have sources and consequences independent of the relations of production, but they are not totally autonomous of economic factors.
These forms of social inequality are shaped by the capitalist mode of production and by the existing class structure. They have a class character. The analytical task of political economy is to clarify the linkages between the class basis of society and these other forms of social domination’13
It has been said that ‘there is a relation of near-identity between the state and its law’ and ‘that the law is the state’s standard mode of expression, its very language, the essential medium of its activity’14 . We see therefore that laws reflect the will of the ruling class or the state. As Abubakar Momoh poignantly remarked the object of law is to confer on ‘a few people, the legitimacy of denying or restricting the rights of others. This is so because the essence of law is the recognition of property relations…’15
Regardless of the ‘near-identity’ of the state and the laws, two points can be made on the relationship between the two. First, laws do not give birth to the state; but the state births or fashions laws. The state fashions laws to suit its main purpose of preserving the status quo, that is, the system of relations of production. Since the law is the language of the state or of the class in power, it is the state that renders an act or an omission punishable or criminalized. So criminalization is therefore not essentially a moral issue. It is mainly political and legal only to the extent that the state employs its coercive powers (including the court system) to enforce compliance. The implication of this for the dominated classes, particularly the labour movement, is that the process of changing the existing legal order has to be political and can only be wrought through a sustained struggle based on the necessary consciousness and suitable strategy. Laws and political systems are not changed or made on the basis of articulate charter of demands or campaigns in the mass media belonging to the ruling class, but on the basis of political struggles.
•To be continued
•Aturu delivered this lecture at the Faculty of Social Sciences, Osun State University, Okuku Campus.