We Cannot Legislate People Out of Poverty – Dr Muyiwa Adigun, in Conversation with ResearchRound.

ResearchRound’s Oyin Komolafe was in conversation with Dr. Muyiwa Adigun whose research focuses on International Law. Dr Adigun is the author of the book; The International Criminal Court and Nigeria: Implementing the Complementarity Principle of the Rome Statute (Routledge Research in International Law). He focuses on constitutional law, international law, criminal law, arbitration, and international arbitration. He was awarded his Doctor of Philosophy (Ph.D.) from University of the Witwatersrand, Johannesburg. 

From being a high-flying student in the University of Ibadan, to becoming a seasoned researcher and a global scholar, what triggered the realization that this was the career path you wanted to take?

I think there are several factors. The first is that at the time I started studying law, I was much of an adult. The reason was that I had first concluded a BA in Fine Arts from OAU. So, when I started, I had a rough idea of what I wanted to do in law. Also, I am a strong believer in God, and he has strongly intervened in my choice of a career path.

Within the context of your areas of research, what would you describe as the most groundbreaking development(s) so far?

Well, it all depends on what you consider as groundbreaking. For example, I can remember that at a point, Chinua Achebe was asked about which of his works he loved most. His response was that it was like asking a father who among his children he loves most. But he said, while he would like Things Fall Apart, the Arrow of God was the book he had read over and over. So when you ask me what I consider to be my groundbreaking research, I think it is like asking a father what child he loves most. One thing I know of, is my book: “The International Criminal Court and Nigeria: Implementing the Complementarity Principle of the Rome Statute”, is the book that I love so much. It took me three years to write it, and the reason is that I adapted it from my doctoral thesis. So, I think to a large extent, it is a book to which I have a close attachment. If you consider that groundbreaking, then maybe it is. Nonetheless, I love most of my works.

Given your wealth of experience in legal research, what challenges would you identify as major hindrances to conducting quality legal research?

There are several challenges. I think the first one is that getting good journals to publish your work is a great challenge. Most especially, if you are looking at it from an African perspective. For example, the Journal of African Law is published by Cambridge University Press. If you want to get published by the Journal of African Law, the review process is about four months, sometimes three months. If your work is accepted, then, your work will be published a year later. That means you have about one year and four months to get your work published. The reason is that we have so many African scholars out there who want to publish their work in that journal, so the pressure is enormous. There are very good works out there that may be rejected, not because they are not good, but because there is no sufficient space for them. If you want to get published out there, it’s quite difficult because the competition is tense. Also, in some journals, they will even discriminate against you, even though they won’t say it openly. I actually made some recommendations, when I had the opportunity of addressing scholars in the UI staff club, and one of the suggestions I made was that we should be able to have some journals being accredited collectively from the West African perspective. For example, if the University of Lagos has a journal, let’s say the Faculty of Law has a journal, that journal would still remain as it is, but there would be an accrediting body that is made up of West African countries— the same way we have WAEC, something close to that. The body would be an accrediting body to accredit those journals. Then, of course, the journals will have an editorial board comprising members that will be from all West African countries, and from other parts of the world as well. That way, they will be able to have international visibility. We also need to design an economic model, so that it can be on par with other publications like Taylor and Francis and Thompson Reuters.  It is a positive development to see some journals in Africa, but there can be more where African scholars, without fear of discrimination and excessive competition, can get their voices heard. This is not to suggest that there shouldn’t be a strong review process, but it is one thing to pass through a review process, and it is another thing for your work to be rejected because there are so many other works out there, competing for the same space.

Another major problem has to do with obtaining materials for research. However, this is down to the field of study. For sciences, their own challenges might be more intense compared to African Studies. With respect to Law, primary sources are not books or articles like the Social Sciences for example. Your decided cases and statutes are your primary sources.

Those two challenges need to be seriously addressed.

Law has evolved over the years, with novel areas like blockchain law coming into the picture. However, as a result of the dearth of research materials and case laws on these areas, researchers often avoid conducting research tied to novel areas of law. How do you think law researchers can bypass this challenge?

I think there are some assumptions in this question— that if there are no materials, research cannot be done. I think it is essentially based on ignorance. As far as law is concerned, it is based on ignorance. I will explain why.  First, what academic law is about is what we may call theory of practice. Academic law is not theoretical in the same sense that political science is. What academic law is about in terms of theory, is that it theorizes what obtains in practice. It offers a critical insight into what is done in practice. Law is essentially practice. If you are supervising a thesis, one of the core aspects is what we call research questions. In practice, we have something similar to research questions as well. For example, if a judge will write a judgement, there must be issues for determination. And issues for determination are often couched in the form of questions. When these questions are addressed, the issues are resolved. So, just as you have your research questions in theory, you have issues for determination in practice. In research, you have aims and objectives, and they must be synchronized with your research questions. Your aim must be to answer those research questions.

In practice, we also have something similar to that. For example, if an issue comes to a judge for the first time, and there is no precedent, how will a judge decide that case? Will the judge say: “Oh! I’m sorry, there is currently no law to solve your problem. So, you can go home”? The judge won’t say that. The judge must still decide that matter. So, what is it that the judge will do? What the judge will do is to create new norms, from the existing ones and use it to address the issues between the parties. That is exactly what a legal researcher in a new field should do. No matter how new a field is, existing legal principles can be applied to it. And then, the researcher will argue and create new norms.

Coming back to the issue of blockchain as you just mentioned, my understanding of blockchain has to do with information management. Even though blockchain is a product of technology,  existing principles can be applied to it. I will give you one example. Confidentiality comes in immediately. If you are uploading certain pieces of information to this platform, and those who will need this information will rely on it, then definitely, confidentiality becomes an issue. The principles in misrepresentation will equally become an issue. These are principles in common law, which can be adapted to the new circumstance. So when people are saying there are no materials, and because of that, they cannot go into it, it is purely based on ignorance. Existing principles can be adapted. You create new norms and apply it to the new situation.

Over the years, there have been mounting debates on the position of Sharia law as a possible negation to the secularity of the Nigerian state, especially within the context of Section 10 of the 1999 constitution (as amended). What are your thoughts on this?

I know religious issues are always very emotive in Nigeria. Often, people don’t have objective perspectives on such issues. First, let’s address the secularity of Nigeria. What do we mean by secularity? Does secularity mean “no religion” or “all religions”? Are we truly secular in the sense of “no religion”? We send people to Mecca and Jerusalem, using state money, and we say Nigeria should be a secular state. Are we truly being honest? If Nigeria is going to be a secular state in the sense of “no religion”, we won’t be in religious public gatherings. That is one part of it. If Nigeria is secular in the sense of “all religions”, then, it simply means Christians and Muslims should be able to practice their faith without fear, favour, or intimidation. If this(“all religions”) is what secularity means, then, I obviously don’t see anything wrong with having Sharia in the North. They are largely Muslims.

However, I will have a problem where you want to apply your Sharia to a Christian. If a Muslim steals, and you think amputation is your own code, goodluck to you. But if you want to apply the same law to a Christian, I will have an issue with it. So, my understanding of the situation in Nigeria is that Nigeria is secular, but in the sense that there is a common platform for all religions. That’s my understanding. If I am correct, then, those who want to have Sharia law in the North, can have it. However, they must not apply their Sharia to Christians.

So if I am correct, you strongly believe that the adoption of Sharia in the North, does not negate the provision of the constitution that no state should adopt a religion as a state religion?

It does not, to the extent that secularity means multi-religiosity.

No state shall adopt a religion as a state religion. So, let’s say we have Christians and Muslims, and we want to apply it to a context. It simply means that you should not spend state money on Christianity or Islam. But we are spending money on Christianity and Islam, aren’t we? Therefore, the only way to understand it is that our definition of secularity means multi-religiousity. Under the same constitution, we also have the right to freedom of expression, right to freedom of thought and religion. So, the Muslims in the North can say they want to adopt Sharia. My point is, it should not be applied to adherents of other religions. This is my position: to the extent that secularity in Nigeria means “many religions”, those who want to have their Sharia can have their Sharia. However, while they are having their Sharia, they must not disturb others.

In 2019, the World Intellectual Property Organisation (WIPO) reported that Nigeria ranked 86th on global patent filings. This is, of course, a major indicator of the dwindling research and innovation culture in Nigeria. What do you think are the probable causes of this situation?

Let me start from the so-called ranking. There may be several factors that account for that. It does not necessarily mean that research and innovation is not being done in Nigeria and Africa. It may be based on ignorance. There are situations where  people have good ideas, but they decide against having them patented. Therefore, it is not conclusive that research and innovation is dwindling in Africa.

But why do you think the patent filings are low? Is it that these innovators are not aware that intellectual property rights actually exist and they need to register the patent? Or they just don’t trust the intellectual property regime?

Yeah. That may be part of it (not knowing about intellectual property). But when you are talking about intellectual property regime, you also need to be a bit cautious. Some of us are sceptical about intellectual property regimes that are western-centric in conception. Look at fine arts for example. Centuries ago, artworks did not bear anybody’s name. Those who made the artwork did not have their names on it. It was more or less considered as a collective property. But the Western conception of intellectual property now, is individual centric.

The bottomline is this, those who tell us that innovation and research are probably not going on in Africa, they have certain standards that they set. These standards may not take cognizance of our own conception of creative works. So, we cannot totally rely on it, and think someone is assessing and we are not doing well enough. There was a time I attended a research and innovation fair at the University of Ibadan, and I met somebody from the faculty of engineering who produced tiles from used car tires. I was shocked, and it was made in the Faculty of Engineering, University of Ibadan. I don’t know whether the technology is patented or not. This is part of it. So, some perhaps, do not know they should patent it or some are just lackadaisical about it. But I won’t go to the extent of saying innovation is not happening in Africa.

However, I will agree with you to a large extent that maybe there is a disconnect between innovators and governments in Africa. In Nigeria, innovators don’t make money. Only politicians make money. In a sane environment, innovators should be the ones to make money. For example, do we still have a reason to be importing tiles if it could be produced in UI? But, industrial production is a different ball game entirely. It may require the intervention of the government, and it will involve a huge capital for mass production. So, if there is a synergy between innovators and the government, some of the problems could be solved by us.

Still on intellectual property, in your paper on innovation in the Nigerian intellectual property system, you strongly argued on the need for governments to put a limit on intellectual property protection, in order to avoid stifling competition. However, within the context of the African situation where innovators have, for decades, gotten the short end of the stick due to piracy, do you think that this would be the best time for African governments to adopt a regime where rights of innovators and consumers are balanced?

My argument was this: When it comes to intellectual property, we treat it solely as a matter of law. That is the starting point for me. I am saying it is wrong. Economics should also have a place. We should have a combination of law and economics to address it. So, what will be the role of the law? Once someone has innovated, we should allow incentives through copyright, patents and the likes— by offering some protection. If someone knows that his innovative ideas would be protected, the person will likely be incentivized to produce more.

But when you protect it, it could potentially become a monopoly. As such, at what point would it reach monopoly? It is Economics that can answer that question, not Law. At the point where monopoly emerges, the Law will state that the rights of innovators will no longer be protected. But how will you determine a monopoly? This is not a legal question. It is purely a question of economics. That’s my position. I am not saying innovators should not be protected, but to the extent that monopoly has emerged, the protection should stop at that point. I still hold on to that view. This is because monopoly will destroy more than it will build. I don’t think that in a bid to attract more innovators, we should adopt an eternal protection of innovative ideas. I don’t think it will help us in the end. That is my point. In relation to  intellectual property research, we should begin to combine law and economics.

Thank you for relating your point. I understand that you also practice law, is that correct?

I used to practice law before I joined academia. I practiced law for about 8 years.

Have you stopped altogether?

I have stopped for now. By combining both at the same time, you may not end up being the best in either of the fields. My area of specialisation is litigation, and it is quite demanding. Combining it with lecturing may be detrimental. However, my background in practice has substantially helped my teaching and research. My plan is that once I reach my peak in academia, I may practice again. But for now, I want to concentrate on publication. I want to see what I can do in terms of lecturing and giving my best to my students.

Do you believe that law lecturers should practice for a number of years, before they venture into lecturing?

Of course, that has always been my position. All my students know that. I don’t teach law as if I am teaching literature. I always tell them, you don’t need to memorize law. Law is too easy if you understand it. Why do you need to memorize? There is no learning in that. When you memorize, immediately you conclude your exams, you forget  everything. But, if you understand it, you will discover that it is a part of you. And that has always been my approach. My position has always been that at least, for two years, it is advisable that you practice law before joining academia, to ensure that law is taught the right way— with ample practical experience.

What quality sets you apart as a law lecturer and researcher?

I love logic. The study of law is the study of logic. Currently, students are taught logic in their legal methods classes. Unfortunately, after that, I think most students just forget about legal logic and the only thing they start doing is memorizing law. I have a doubt that it has helped legal education in Nigeria. I was exposed to philosophy at a very young age. I was exposed to philosophy, critical reasoning and analytical reasoning. I strongly believe it has substantially helped my work. I don’t see that as a special quality, but I think that quality will help anybody in the study of law, and the practice of law as well.

What are the things you think should be changed within the Nigerian legal education system?

I think education based on memorization should be dispensed with. I am looking forward to a time when students who are taking an exam in Constitutional Law, will be allowed to bring in the constitution.  You should be allowed to bring in some case law materials, while the questions you are given are geared towards solving a particular problem. This will ensure that students who are poor at memorizing, will equally have a fair chance at passing the course.

The funny thing is, when you start your practice, you will not need to memorize anything again. In this age of frontloading, everything you have to say, you put it down in writing, you file it, when you get to court, you just adopt it as your argument. Tell me, where do you need memorization? This means that we are teaching skills that have no basis in practice. We are merely producing students who would be skilled at memorization.

Another area that should be addressed has to do with the place of international law. There is no single part of law today, that international law has not touched. There was a time I taught administrative law at the Masters level, and I cited a treaty on devolution and the creation of local governments. It’s an African Union treaty. They were shocked. Most people tend to think that administrative law has no connection to international law. I think International law, to a great extent, should be made compulsory. It has affected nearly every part of law today.

Then, the Nigerian law school. I think I have a problem with the system, where it is one exam for a whole year and your minimum score is your assessment. I don’t think there is justice in that. The other problem I have with the Nigerian Law School is that I don’t want the program to go beyond a year. The reason is that poor people will not be able to afford it. The tuition is now about 300,000 Naira. Imagine if you have to pay twice for that. That will be too difficult. But, the problem we are currently facing is that most people will just memorize in Law School and pass. In fact, there was a story of a first class graduate who went for an interview with one of the top law firms in Nigeria, and they asked him to discuss one case that was of interest to him. Just one. The young man did not remember a single case. I  know that in the law of contracts, Carlill v Carbolic Smoke Ball is an interesting case. Yet, this man did not even remember the case. The major reason would have been that the guy memorized all his way through the university and the law school. We should place emphasis on problem solving and we should deemphasize memorization. That’s very important.

In your co-authored paper on Economic Rights and Justice, you extensively discussed the non-justiciability of socio-economic rights. However, contrary to what one would expect, you did not advocate for a constitutional reform. Instead, you emphasized the role of the judiciary in interpreting the law in ways that ensure that the government fulfills the obligations spelt out in Chapter II of the Constitution. Considering the current state of affairs where Nigerians have taken to the streets to demand the realisation of their socio-economic rights, would you still recommend the continued reliance on the judiciary for favourable interpretation, as opposed to the adoption of a constitutional amendment?

First and foremost, we emphasized judicial interpretation because the problem that a constitutional amendment will solve, the judiciary has solved it. Provisions of  socio-economic rights can be enacted into law, and if they are enacted into law, they become justiciable. This was addressed through judicial interpretation, and the principle was settled in the case of Attorney-General of Ondo State v Attorney-General of the Federation & Ors, even INEC v Musa.

Meanwhile, we need to understand certain things. One of such things is that even if we argue for constitutional reforms, we cannot legislate people out of poverty. I will give you one example. In South Africa, economic and social rights are justiciable, the same way civil and political rights are. But South Africa has a higher percentage of poor people than Nigeria. The Poverty Index in South Africa is around 57%, while that of Nigeria is around 40%. So, the point is that we cannot legislate people out of poverty. This means that we still need much more than the law.

The law, alone, cannot guarantee a good standard of living. We also need good leaders. If politicians are earning bogus salaries, how do you expect us to be taken out of poverty? So, I believe that with the current state of the Nigerian legal system, we have successfully whittled down the so-called “non-justiciability”. We need to understand that the constitution is not the only source of constitutional law in Nigeria. Judicial decisions are also sources of constitutional law in Nigeria. My position, which is reflected in that paper, in conjunction with my professional colleagues, is that if we have the constitution, and the way it is interpreted will substantially do away with non- justiciability, then, the system is good as it is. A constitutional amendment will not be necessary in that context. I strongly believe it is a valid position.

If you could describe your career journey in two words, what will they be?

“Unfolding scholarship”. I don’t think I have arrived yet. My scholarship is still unfolding.

In the light of the current situation in the country, what are the constitutional amendments you will recommend?

The position of some people is that the federal government has too much business. In the exclusive legislative list, for example, we have about 66 items. We also have the 67th item telling us that anything incidental to those 66, also belongs to the federal government. As it is now, the Federal government makes money from oil, and distributes the funds to the states. The current system does not encourage states to use their creativity. Creativity or not, they must expect their respective allocations. This also applies to those who are clamouring for local government autonomy. If you look at the debate, it has always been focused on sharing funds gotten from the Federal Government, and nothing about local government chairmen raising money or spending money they raise. People are not talking about local government autonomy along that line. It is always about the money from Abuja. I don’t think it should be that way.

I believe that if states have resources, they could harness those resources and give a percentage of those resources to the federal government. It means if we have 36 states, each state has access to its own mineral resources. 50 percent will go to the federal government, while the state keeps 50 percent. That way, governors will see reasons why they shouldn’t sleep.

When it comes to the issues of the military and currency, maybe the Federal Government should have that. However, how each state is run should be decided by the states themselves. So, if I would advocate for constitutional amendment, both the exclusive legislative list and the sharing formula, need to be amended.

Thank you very much for your time.

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