National development: Legal equality and federal character principle
The role of the law in ensuring the development of the society can not be underestimated. Law has been described as a binding force by which the society is held together as a single unit which ensures growth and development of the people. Law should therefore respond to the yearnings and aspirations of the people at all times.
At the birth of the industrialization era in first world countries, laws were passed to square up with the arising societal and developmental challenges created by industrialization. This definitely has been one of the bait by which first world countries left the third world countries behind to wallow in penury and backwardness. Law as the society is transient, dynamically fundamental to national growth and development; but is law in itself the determinant of national development? No!
Law as a tool for national development cannot be functional until certain principles are religiously upheld and worshipped and to such class belongs “legal equality”. The concept of legal equality has stemmed out from the age long philosophy of liberalism; legal equality advocates that everyone is equal before the law. Anatole France, stated: “in its majestic equality, the law forbids the rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread” This principle has received international affirmation in Article 7 of the Universal Declaration of Human Rights (UDHR) which states: “All are equal before the law and are entitled without discrimination to equal protection of law”. Thus, the law should not give regards to anyone on the basis of race, gender, nationality, colour, ethnicity, religion and disability. Legal equality has of necessity involves creation of opportunities for all on merit and not on mediocrity.
This principle definitely forms part of the basis for the creation of government as an institution to cater for all citizenry regardless of their place of birth or even economic status. Adherence to this principle should therefore not be compromised by frivolous provisions of the law, law should rather complement legal equality. Law must never be used as a tool to encourage the creation of inequalities in the society; law must promote equality, which includes but not limited to equal distribution of facilities and amenities, equal access to opportunities and equal treatment of all classes of persons.
Law must be entrenched in legal equality, which in itself is based on merit and not mediocrity. Every society that is seriously interested in her development must ensure the entrenchment of her laws in equality and not promote any form of mediocrity in her developmental plans. First world countries seem to have long understand this age-long principle of equality and as such entrenched their laws in legal equality; putting away all forms of affirmative actions that tend to slow down their national development.
Affirmative actions was in itself designed to promote the attainment of equality of persons who had either been subjugated by other members of the society or had been discriminated against based on extrinsic factors. Affirmative action is the policy of favouring members of a disadvantaged group who had suffered from discrimination within a nation in order to accelerate their integration into the society.
This principle has been applied in different countries across the globe, from America to Europe, to Asia and even down to Africa. The United Nations through her Convention on the Elimination of All Forms of Racial Discrimination (CEAFRD) has given regards to this principle, Article 2.2 stipulates: “States parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms…”.
This principle would therefore be laudable when applied in the appropriate context and not based on some frivolous pretext of ethnically discrimination. The application of this principle should be corrective; hence once the purpose has been achieved it should be expunged from the laws. A recourse to Article 2.2 CEAFRD, continues by stating “…these measures shall in no case entail as a consequence, the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved”.
• Oluwatobi is a Lagos-based lawyer.