AFJCLJ 4 (2019)
AFRICAN JOURNAL OF CRIMINAL LAW AND JURISPRUDENCE
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African Journal Of Criminal Law And Jurisprudence
AFRICAN JOURNAL OF CRIMINAL LAW AND JURISPRUDENCE
VOL. 4 SEPTEMBER, 2019
CITATION: AFJCLJ 4 (2019)
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AFJCLJ 4 (2019)
© International Centre for Crime Prevention and Security Studies (ICCPSS)
Published: September, 2019
ISSN: 2550-746X
All rights reserved. No part of this journal should be reproduced, stored in a retrieval system or transmitted in any form or by any means in whole or in part without the prior written permission of the copyright owner.
Printed and Published by: Amaka Dreams Ltd. 106, Arthur Eze Avenue Awka, Nigeria Tel: 08037449926
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African Journal Of Criminal Law And Jurisprudence
TABLE OF CONTENTS
Terri Schaivo to Goodall: The Dialectico-Jurisprudential Metamorphosis of Euthanasia IFEANYI ERNEST ANIGBOGU 1
Rethinking the Penalty of Harmful Traditional Practices Committed on Pregnant Women and Children under the Ethiopian Criminal Code MULUKEN KASSAHUN AMID & IKENGA K. E. ORAEGBUNAM 12
Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience E.Q. OKOLIE 22
Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each EVODE KAYITANA 40
A Survey of the Criminal Jurisprudence for Combating Food Adulteration in Nigeria and India GLADYS UZOAMAKA EZE 55
A Critique of the Nigerian Administration of Criminal Justice Act 2015 and Challenges in the Implementation of the Act ROSE OHIAMA UGBE, ANNE URUEGI AGI & JUSTINE BEKEHNABESHE UGBE 69
Electoral Violence: A Case Study of the Governorship and State Houses of Assembly Elections Held in Nigeria on 9th March, 2019 C. J. UBANYIONWU 82
Child Pornography under the Cybercrimes Act 2015 of Nigeria: The Law and its Challenges JUDE O. EZEANOKWASA 95
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The Pacta Sunt Servanda Solace for Persons Detained Indefinitely in Nigeria on Suspicion of Committing Capital Offences CHUKWUNONSO NATHAN UWAEZUOKE 92
The ‘Reasonable Man’ in the Law of Crime as a ‘Fading’ Legal Concept? An Overview of the Rome Statute, the New York Penal Code and the Codes of States of Nigeria MUSA Y. SULEIMAN 119
A Critical Examination of the Criminal Jurisdiction of the National Industrial Court of Nigeria VICTOR OLUWASINA AYENI 132
The Imperative of Littoral States’ Cooperation in Tackling the Scourge of Sea Piracy in the Gulf of Guinea: A Case Study of the Fight against Piracy in the Malacca and Singapore Straits ZINO UGBOMA 146
Psycholegal Research and Criminal Behaviour: Implications for Nigeria JUDE U. OKOYE & IKENGA K.E. ORAEGBUNAM 159
Normative Development of the Crime of Aggression: The Kampala Amendments to the Rome Statute or the Malabo Protocol? IZUNNA ISDORE OZUO 172
Updating the Legal Framework for the Elimination of Gas Flaring in Nigeria THADDEUS (TED) CHUKWUKA EZE 183
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African Journal Of Criminal Law And Jurisprudence
EDITORIAL TEAM
EDITOR-IN-CHIEF: Emmanuel O. C. Obidimma, PhD (Law), B.A (Phil), BL, Professor of Law and Formerly Head, Department of Commercial and Property Law, Faculty of Law, Nnamdi Azikiwe University, PMB, 5025, Awka, Nigeria
DEPUTY EDITOR-IN-CHIEF/MANAGING EDITOR Ikenga K. E. Oraegbunam, PhD (Law), PhD (Phil.), PhD (Rel. & Soc.), MEd, BL, Reader and Head, Department of International Law and Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, PMB, 5025, Awka, Nigeria
EDITORIAL BOARD Meshach N. Umenweke, PhD (Law), BL, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria Angela E. Obidimma, PhD (Law), B.A. (Ling.), BL, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria Maurice O. Izunwa, PhD (Phil.), LLM, MA (Phil.), MA (Rel.), BL, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria Boniface E. Ewulum, PhD (Law), BL, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria Queen C. Umeobika, PhD (Law), LLM, BL, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria Reginald Uzoechi, LLM, BL, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria Zino Ugboma, LLM, BL, Faculty of Law, Baze University, Abuja, Nigeria
EDITORIAL CONSULTANTS C.O. Okonkwo, Formerly Professor of Law, University of Nigeria, Enugu Campus Gregory C. Nwakoby, Professor of Law, Nnamdi Azikiwe University, Awka, Nigeria RACE Achara, Formerly Professor of Law, Abia State University, Uturu, Nigeria Uba S.F. Nnabue, Professor of Law, Imo State University, Owerri, Nigeria Dakas C.J. Dakas, SAN, Professor of Law, University of Jos, Nigeria Z.C. Anyogu, Professor of Law, Madonna University, Okija, Nigeria Hon. Justice O. R. Onunkwo, High Court of Justice, Anambra State, Nigeria F.A.R. Adeleke, Professor of Law, Lagos State University, Ojo, Nigeria
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GUIDELINES FOR CONTRIBUTORS African Journal of Criminal Law and Jurisprudence (AFJCLJ) has the objective of publishing peer-reviewed papers dealing strictly with issues on criminal law and criminal jurisprudence which are of relevance to Africa, Africans, and scholars of Africa. AFJCLJ appears once a year in September. It is published online and in print. The Journal is abstracted and indexed with Google scholar and other major indexing outfits. It provides a forum for legal scholars and jurists to report research findings for policy making through innovative and advanced methodologies. Well researched and original papers on topical subject matters, and which extend the frontiers of knowledge with a view to solving developmental problems are hereby welcome.
Guidelines to Authors 1. Language The language of the manuscript must be English (either American or British standards, but not the mixture of both). 2. Length of paper The length of the paper should not exceed 7000 words excluding tables, figures, references and appendices (if any). Articles should be typed in 1.5 line spacing (footnotes and references should appear in single line spacing) on one side of A4 paper only with wide margins. Authors are urged to write as concisely as possible, but not at the expense of clarity. 3. Title Page The title page should include: (i) The name(s) of the author(s), (ii) A concise and informative title, (iii) The affiliation(s) and address (es) of the author(s), (iv) The e-mail address, and telephone numbers of the corresponding author. 4. Abstract Please provide an abstract of 150 to 200 words which must include the objectives of the study, methodology, findings/results, method of data collection and summary of recommendations. The abstract should not contain any undefined abbreviations or unspecified references. 5. Keywords Please provide 4 to 6 keywords which can be used for indexing purposes. 6. Subdivision of the article Divide your article into clearly defined and numbered sections. Subsections should be numbered 1, 2. (then 1.1, 1.1.1, 1.1.2), 1.2, etc). The abstract is not included in section numbering. 7. References Author(s) should adhere strictly to the following referencing and documentation style:
Books by one author C O Okonkwo, Criminal Law in Nigeria (2nd Ed, Ibadan: Spectrum Books Ltd, 2002) p.3.
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African Journal Of Criminal Law And Jurisprudence
Books by multiple authors MN Peters & J Hospers, How to Investigate a Crime (London: Sweet & Maxwell, 2012) p.9.
Chapters in Edited Books S Kelly, ‘Allocutus’ in B Denis (ed), The Essence of Sentencing (Oxford: Clarendon Press, 2012) p.3.
Journal Articles P Edwards & J Shorter, ‘Defence of Unwilled Act’ (2014) 4 SJ, 304
Articles in magazine and Newspapers F Bindell, ‘The Essence of Locus Standi’, Newsweek, November 11, 2014, p.40
Articles on the Internet S Butler, ‘Standard of Proof in Criminal Trial’ (2013) 3 Web J Current Legal Issue.
Law Reports Chukwuma v The State [1993] 4NWLR (pt 287) 288
Unreported Cases Ahmed v FRN (Unreported Charge No FHC/ABJ/M/210/2013, ruling delivered on 3/8/2006 by B.F.M. Nyako, J. at Federal High Court, Abuja FCT Division. Statutes The citation of section 61, sub-section 3, paragraph b of the Evidence Act 2011, should read as follows: Evidence Act 2011 s. 61 (3) (b).
Statutory Instruments (Secondary/Delegated Legislation Employer’s Liability (Compulsory Insurance) Regulations 1998 SI 1998/2573
Unpublished Works: G Uzoechie, ‘Dress Code in Universities’, A Paper delivered at the UNIZIK 1st Public Lecture on 12th December, 2014, p.5.
Subsequent References If referring for a second, third or more time to a previously cited work, it is not necessary to repeat all details in full. Assuming you cited ‘MN Peters & J Hospers, How to Investigate a Crime (London: Sweet & Maxwell, 2012) p.9’ earlier in footnote no. 5, and you wish to cite the work again in footnote no. 10, simply write: MN Peters & J Hospers (n. 5) p…
Submission of Manuscripts
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The interested contributors are to submit their manuscripts/papers to [email protected] and copy to [email protected] and [email protected]. Papers are received all through the year.
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AFJCLJ 4 (2019)
TERRI SCHAIVO TO GOODALL: THE DIALECTICO-JURISPRUDENTIAL METAMORPHOSIS OF EUTHANASIA*
Abstract Right from the dawn of medical practice, no endeavour has been as demanding of the healthcare practitioner as the management of the terminally ill and the incurably ill. The exercise is a medico-jurisprudential nightmare for the patient, the healthcare provider, and the patient’s family. The assumption in medico-legal consideration is that for many patients at the threshold of death, the desire to die is understandable. This desire is implicitly recognized as lawful in law, by the recognition of the principle that a competent adult does have the right to refuse medical treatment even if the effect of it would mean death. In many a jurisdiction therefore, euthanasia in any of its forms is in the interest of the patient. Of course such an assumption is not only intellectually destitute, but absurd. The absurdity of such assumption stems from the fact that the thought that the patient is competent is questionable. A patient is not necessarily simply a combination of the formerly healthy person and the pathology causing agent or agents. It runs far deeper than that. A patient is the sum total, the dialectical product of the psychosomatic interactions and reactions between the aetiological factors, some pathogenetical repercussions, and the hitherto healthy macro-organism of the person. The competence to take life and death decisions on the part of the patient under such circumstances are anything but simple, and any assumption of such is intellectually mundane. It is not without good reason that in the management of such patients, psychotherapy remains an invaluable, salient constituent factor. Moreover, the drift of euthanasia down the slippery slope does not stand contemporary medical practice in good stead. The humble attempt of this author has been to elucidate the abuse of euthanasia, and proffer, in light of recent advancement in science and technology, more medico- jurisprudentially acceptable alternatives.
Keywords: Voluntary euthanasia, involuntary euthanasia, active euthanasia, passive euthanasia, cryonics, DNA, nanotechnology, nanomedicine, chromosomes
Dr. Ifeanyi Anigbogu 1. Introduction MD (General Medicine). M.I.S.B.T, Ph.D (Surgery) The complexities and intricacies of contemporary urban habitation, as occasioned by the implacably galloping LLB (Hons), BL (Hons), LLM, Ph.D (Law) advancements and innovations in science and technology, have been observed to be so overwhelming that the Specialist Surgeon potentialities for transmutation into the harbingers of hitherto unimagined psycho-somatic trauma are real. This is Solicitor and Advocate of the Supreme Court of Nigeria of course in tandem with the notion and understanding, that technological advancement and innovation without Lecturer, Faculty of Law legislative control could unleash a Frankenstein’s monster and could open the proverbial Pandora’s Box. It is Madonna University understandable that law, being a decidedly ultra conservative phenomenon in spite of its role as an instrument of social regulation, creeps excruciatingly slowly behind science and technology, thus buttressing the belief in Okija, Nigeria certain quarters that law would either have to gallop alongside science and technology or become an obsolete Phone: 08037031458 obstacle to be circumvented. [email protected] 2. Terri Schaivo On Feb. 25 1990 at age 26, Schaivo sustained a cardiac arrest at her home in St. Petersburg Florrida. She was successfully resuscitated, but had massive brain damage due to lack of oxygen to her brain, and was left comatose1. After two and a half months without improvement, her diagnosis was changed to that of a persistent vegetative state. For the next two years, doctors attempted speech and physical therapy and other experimental therapy, hoping to return her to a state of awareness, but without success. In 1998 Schaivo’s husband Michael,
*Ifeanyi Ernest ANIGBOGU, MD (General Medicine), M.I.S.B.T, PhD (Surgery), LLB (Hons), BL (Hons), LLM, PhD (Law) Specialist Surgeon, Solicitor and Advocate of the Supreme Court of Nigeria, Lecturer, Faculty of Law, Madonna University, Okija, Nigeria, Phone: 08037031458. [email protected] 1 https://en.m.wikipedia.org. visited 18/05/2018
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ANIGBOGU: Terri Schaivo to Goodall: The Dialectico-Jurisprudential Metamorphosis of Euthanasia petitioned the sixth circuit court of Florida to remove her feeding tube, pursuant to Florida law2. He was opposed by Terri’s parents. The court determined that Schaivo would not have wished to continue life-prolonging measures3, and on April 24, 2001, her feeding tube was removed for the first time, only to be re-inserted several days later. On Feb 25, 2005, a Pinellas Country judge again ordered the removal of Terri Schaivo’s feeding tube. Several appeals and Federal Government intervention followed, which included U.S President, George W. Bush, returning to Washington DC, to sign legislation moving the case to the Federal courts. After appeals through court system upheld the original decision to remove the feeding tube, staff at Pinellas Park hospice facility disconnected the feeding tube on March 18, 2005, and Schaivo died on March 31, 2005. It was a case of euthanasia as can be noted. It was a right to die legal case in the USA, from 1990 to 2005, involving a woman in an irreversible persistent vegetative state. Schaivo’s husband and legal guardian argued that Schaivo would not have wanted prolonged artificial life support without the prospect of recovery, and elected to remove her feeding tube. Schaivo’s parents disputed her husband’s assertions and challenged Schaivo’s medical diagnosis, arguing in favour of continuing artificial nutrition and hydration. The highly publicized and prolonged series of legal challenges presented by her parents, which ultimately involved the level of president George W. Bush, caused a seven-year delay before Schaivo’s feeding tube was ultimately removed. The case involved fourteen appeals and numerous motions, petitions and hearings, in the Florida courts, five suits in federal District Court, extensive political intervention at the levels of the Florida legislature, Governor Jeb Bush, and four denials of Certiorari, from Supreme Court of the United States. The case also spurred highly visible activism from the pro-life movement, the right to die movement, and disability rights groups.
3. Goodall David William Goodall A.M. was a British-born Australian botanist and ecologist. He was influential in the early development of statistical methods in plant communities4. The lauded ecologist and botanist did not suffer from serious illness. But he wished to bring forward his death due to his diminishing independence5. ‘My abilities have been in the decline over the past year or two, my eye sight over the past six years’ Dr Goodall told reporters in Switzerland, where he had organized his death. ‘I no longer want to continue life. I’m happy to have the chance tomorrow to end it’6. Dr. Goodall travelled to a clinic in the city of Basel to voluntarily end his life. He said he resented having to leave Australia to do so. The London-born academic had lived on his own in a small flat in Perth, Western Australia. He stepped back from full-time employment in 1979, but remained heavily involved in his field of work. In his last years, Dr. Goodall edited a 30-volume book series called Ecosystems of the world and was made member of
2 ‘5765.401 of florida statutes – Healthcare Advance Directives – The proxy’ state of florida. Nov 22 2006.Archived from the original Dec. 8 2008. retrieved May 19, 2018. 3 the university of Miami Ethics Pregiama Archived from the original Nov 16, 2014. retrieved May 19, 2018 4 https//en.m.wikipedia.org>org>wiki>David….. 18/05/2018 5 www.bbc.com>world-australia-43957874. visited 20/05/2018 6 Ibid
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AFJCLJ 4 (2019) the Order of Australia for his scientific work. In 2016, aged 102, he won a battle to keep working on campus at Perth’s Edith Cowan University, where he was an unpaid honorary research associate7. He made his final trip out of Australia, with his friend, Carol O’Neill, a representative from assisted dying advocacy group, Exit International. Dr Goodall’s decision to end his life was hastened by a serious fall in his apartment last month. He was not found for two days. Later, doctors said he needed to engage 24-hour care or be moved into a nursing home.According to Mrs O’Neill, ‘He’s an independent man. He doesn’t want people around him all the time, a stranger acting as a carer. He doesn’t want that’. And so, on the 10th of May 2018, Dr David William ended his life by himself. It was a case of voluntary Active Euthanasia8. Shortly before his death, he said he was ‘happy to end’ his life. ‘My life has been rather poor for the past year or so and I’m very happy to end it’, he said, surrounded by several family members9. Euthanasia must be clearly understood, as it differs from physician Assisted Suicide, which describes any act that intentionally helps another person kill himself, for example by providing him with the means to do so, most commonly by prescribing a lethal medication.
4. Euthanasia In the history of medico-legal practice and bioethics, few concepts have been as controversial and thought-provoking as the concept of Euthanasia, a controversy that persists up to the present day. Black’s Law Dictionary defines Euthanasia as the act of, or practice of, causing or hastening the death of a person who suffers from an incurable or terminal disease or condition, especially a painful one, for reasons of mercy10….. The dictionary went further to indicate that: The translation of the Greek word Euthanasia – ‘easy death’ contains an ambiguity. It connotes that the means responsible for death are painless, so that the death is an easy one. But it also suggests that the death sought would be a relief from a distressing or intolerable condition of living (or dying), so that death, and not merely the means through which it is achieved, is good or right in itself. Usually both aspects are intended when the term Euthanasia is used; but when that is not the case, there can be consequences in Legal analysis11.
Generally speaking, euthanasia can be classified into Active Euthanasia, Passive Euthanasia, Voluntary Euthanasia, Involuntary Euthanasia, and Non voluntary Euthanasia. Active Euthanasia
7 Ibid 8 Ibid 9 Ibid 10 Black’s Law Dictionary, 9th edition, Bryan A. Barrer editor in Chief. Thomsan Reuters, 2009. 11 Alexander Morgan Capron ‘Euthanasia’, in 2 Encyclopedia of crime and justice 709,709 (Stanford H. Karaish ed., 1983)
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ANIGBOGU: Terri Schaivo to Goodall: The Dialectico-Jurisprudential Metamorphosis of Euthanasia is performed by a facilitator (such as healthcare practitioner) who not only provides the means of death, but also carries out the final death-causing act. It is thus a conscious act that results in death12. Passive Euthanasia is the act of allowing a terminally ill patient to die by either withholding or withdrawing life-sustaining support such as a respirator or feeding tube. It therefore is an act of allowing the patient to die naturally, without medical interference.13 Voluntary Euthanasia is performed with the consent of the terminally ill patient. Thus, voluntary euthanasia requires the consent or permission or request of the patient, or the patient’s designated representative to use medical means to end the patient’s life.14 Involuntary Euthanasia implies euthanasia of a competent nonconsenting patient. It is a situation which describes the act of ending a patient’s life by medical means, without the consent of the patient or the patient’s representative. Non Voluntary Euthanasia refers to euthanasia in an incompentent and therefore nonconsenting patient15. Some authors love to use the terminology dyathanasia which means the act of permitting death to occur naturally by withholding, terminating, or not offering life- prolonging treatments or intervention.16 It is also often termed passive mercy killing. From all the above, it is clear that euthanasia simply put, is medically defined as a quiet, painless death, the intentional putting to death by artificial means of a person with incurable or painful disease, the act of killing someone, ie a patient, painlessly in order to relieve the person from suffering or pain due to an incurable disease or condition. Euthanasia is pessimistic and portrays the healthcare providers as lacking in compassion and patience, considering the permanence and irreversibility of death. Medical practice is basically dependent on science and scientific innovations. In euthanasia, healthcare providers seem to have lost faith in science, which is the very ‘raison d’etre’ of medicine. It is like dynamic science closing the door against itself, since it seems to foreclose the possibility of cure being imminently discovered.
Euthanasia is killing, no matter what colouration it is given, or interpretation it is given, and God’s injunction is specific. ‘Thou shall not kill’. The question of helping the patient is untenable. One cannot help a patient by killing the patient. Indeed euthanasia is intrinsically and morally wrong, no matter how one thinks it might help the patient17. Placed at the disposal of unscrupulous or even careless healthcare providers, euthanasia could become a deadly instrument
12 Karen Judson; Sharon Hicks, Glencoe Law and Ethics for Medical Careers. 2nd ed. Glencoe McGraw-Hill 1999. 13 Ibid 14 Ibid 15 Black’s Law Dictionary. Op Cit. 16 Ibid 17I. E. Anigbogu, ‘A comparative Medico-Jurisprudential Appraisal of Euthanasia and Cryonics as Management Options for the Terminally and the Legally Dead’. The Premier Journal. A Publication at the Nigerian Bar Association, Onitsha branch. Vol 1. No !, 2017.
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AFJCLJ 4 (2019) with disastrous consequences. Euthanasia runs against the natural Law of self preservation. With euthanasia, the absolute trust which a patient has that the physician would save him from his ailment is thoroughly shaken. The golden rule of medical practice is ‘Primum non nocere’ – at least do the patient no harm. With euthanasia, this golden rule is broken.18 The hall mark of good medical practice is founded on the principle of ‘search and rescue’. But with euthanasia, that principle metamorphoses into ‘seek and destroy’, which casts a serious doubt on the humanitarian basis of medical practice.19
5. Jurisdictions As of March 2018, human euthanasia is legal in the Netherlands, Belgium, Colombia, Luxemburg, Canada, and India. Assisted Suicide is legal in Switzerland, Germany, South Korea, Japan and in the US states of Washington, Oregon, Colorado, Hawaii, Vermont, Montana, Washington DC, and California. An Assisted dying Scheme in the Australian state of Victoria will come into effect in mid-2019.20 In Nigeria, a good number of legal scientists, notable among whom is Emiri have argued that generally medical care aims at to achieve four things namely: to cure sickness when it occurs; to prevent the re-occurrence of illness; where the sickness cannot be cured, to prevent its further deterioration; and to relieve pain or suffering or both in the body and mind of a patient.21 It follows therefore that where medical care is not administered to achieve any of the above aim(s), it is all together useless and ought to be discontinued.22 The position in Nigeria does not seem to share this point of view, since there is a statutory ban on all forms of assisted termination of life in Nigeria. The Nigerian situation seems to be in tandem with the stance of this humble author, that the hallmark of good medical practice is founded on the principle of ‘search and rescue’, but with euthanasia it metamorphoses into ‘seek and destroy’, which casts a serious doubt on the humanitarian basis of medical practice. As a matter of fact, the provisions of the criminal code are clear and unambiguous. Thus, by S311 of the criminal code;23 ‘A person who does any act or makes any omission which hastens the death of another person who, when the act is done, or the omission is made, is laboring under some disorder or disease arising from another cause is deemed to have killed that other person’. Section 326 is to effect that: Any person who: 1. Procures another to kill himself or
18 Ibid 19 Ibid 20 nttps://en.m.wikipedia.org>wiki>legal. Visited 21/05/2018 21 F.O. Emiri, Medical Law and Ethics in Nigeria. Malthouse Law Book. 2012 P219 22 Ibid 23 criminal code RFN 1990
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2. Counsels another to kill himself and thereby induces him to do so, or 3. Aids another in killing himself, is guilty of a felony, and is liable to imprisonment for life.24
Above provisions seem to have taken care of all forms of euthanasia –active, passive, voluntary, non voluntary, involuntary, and physician assisted suicide. The simple legal and practical implication of the provisions is that euthanasia is not only legally prohibited in Nigeria, it is a criminal offence or penal offence, which attracts severe punishment of either death or life imprisonment. Socio-culturally it is an anathema for medical practice. In Euthanasia medicine becomes a merchant of death, instead of health and life. One of the compelling reasons why this author tends to agree with the blanket ban of euthanasia, as contained in the criminal code, is for the avoidance of the slippery slope phenomenon, which eventually is seen at play when one considers the transition euthanasia has undergone from Terri Shaivo to David Goodall.
6. Euthanasia and Slippery Slope A Slippery slope in logic, critical thinking, political rhetoric and case law, is a consequentialist logical device, in which a party asserts that a relatively small first step leads to a chain of related events culminating in some significant (usually negative) effect25. The core of the slippery slope argument is that a specific decision under debate is likely to result in unintended consequences. The strength of such an argument depends on the warrant i.e whether or not one can demonstrate a process that leads to the significant effect. Different writers have classified slippery slope arguments in different and often contradictory ways, but there are two basic types of argument that have been described as slippery called causal slippery slope and the distinguishing feature of the type is that various steps leading from p to 2 are events with each being the cause of the next event, in the sequence.26 The second type might be called the judgmental slippery slope, with the idea being that ‘slope’ does not consist of a series of events, but is such that for whatever reason, if a person makes one particular judgment, he will rationally have to make another and so on. The judgmental type may further be subdivided into conceptual slippery slopes and decisional slippery slope.27
24 Ibid 25 https://en.m.wikipedia.org>wiki>shipp..... Visited 22/5/18 26 Fogelin Roberts; Understanding Arguments: An Introduction to Informal Logic. Fort Wort, Tx Harcourt College Publishers P.358 2001 27 Gorier Trudy, A Practical Study of Argument, Belmont, CA: Cengage Learning. 2010.
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As applied to euthanasia debate, the slippery slope argument claims that the acceptance of certain practices, such as physician assisted suicide, or voluntary euthanasia, will invariably lead to the acceptance or practice of concepts which are currently deemed unacceptable, such as non voluntary or involuntary euthanasia. Thus, it is argued, in order to prevent these undesirable practices from occurring, we need to resist taking the first step. This author humbly seeks to agree with this position, otherwise medical practice could indeed slide into a process of ‘search and destroy’, with hospitals probably inadvertently transmuting into slaughter houses. There are two basic forms which the argument may take, each of which involves different arguments for and against. The first of these, referred to as the logical version, argues that the acceptance of the initial act ‘A’ logically entails the acceptance of ‘B’, where ‘A’ is acceptable but ‘B’ is an undesirable action. This reason is further refined into two forms based on how ‘A’ entails ‘B’. In the first it is argued that there is no relevant conceptual difference between A and B, - the premises that underline the acceptance of A logically entail the acceptance of B.28 Within the euthanasia debate, this argument is very strongly valid. The second logical form of slippery slope argument, referred to as the ‘arbitrary line’ version, argues that acceptance of A, will lead to acceptance of A1, as A1 is not significantly different from A. A1 will in turn then lead to A2. A2 to A3 and eventually the process will lead to the unacceptable B.29 Euthanasia from Terri Schaivo to David Goodall is in a very sinister manner reminiscent of the inhuman abuse of euthanasia in Nazi Germany courtesy of Hitler’s program. Berlin, 1 Sept. 1939, Adolph Hitler wrote ‘Reich Leader Bouhler and Dr. Med. Brandt are charged with the responsibility of enlarging the competence of certain physicians, designed by name, so that patients who, on the basis of human judgment, are considered incurable, can be granted mercy death after a discerning diagnosis’ A. Hiltler (cf. Friedlander, 1995, P.67)30 Thus, Hitler laid the foundation for operation T4.
7. Operation T4 and the Roots of the Final Solution Tens of thousands of people with disabilities were murdered during the Holocaust, killed in the so called ‘euthanasia’ program, authorized by Hitler in the fall of 1939. The purpose of the program (Otherwise known as Aktion T4 for the location of the headquarters of Tier garten strasse 4 in Charlo Henberg) was to eliminate people considered ‘defective’ by Nazi ideals – the institutionalized elderly, the incurably ill, and people with various physical or mental disabilities. They were systematically murdered in the institutions and state hospitals where they lived or were staying temporarily for health reasons. Hitler’s letter cited above was written with the intent of assuring hesitant physicians and civil servants that they would not be criminally liable for murder,
28 https://en.m.wikipedia.org>wiki>Eutha...... 29 Ibid 30 A. Hitler 1st Sept. 1939. (cf. Friedlander, 1995 P.69)
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ANIGBOGU: Terri Schaivo to Goodall: The Dialectico-Jurisprudential Metamorphosis of Euthanasia should they participate in the program, despite the absence of an officially enacted law authorizing the killing of disabled persons.31 During the Nazi’s T4 program, an estimated 250,000 – 350,000 Germans were put to death. Gas chambers were, in many cases constructed on hospital grounds. ‘Whatever proportions these crimes finally assumed, it became evident to all who investigated them, that they started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in the basic attitudes of physicians’.32 ‘It started with the acceptance of the attitude, basic to the euthanasia movement, that there is such a thing as a life not worthy to be lived. This attitude in its early stages concerned itself merely with the severely and the chronically sick’.33 Gradually the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, the racially unwanted, and finally all non Germans34‘ indeed, a glaring manifestation of the slippery slope phenomenon. From Nancy Cruzan to Karen Ann Quinlan, Terri Shaivo to David Goodall, the acceptability of euthanasia, abhorrent and abominable as it is, has slowly but surely been creeping, and invading our consciousness. Nancy Cruzan was a 25 year old woman in 1983 when she was in a terrible car accident. She suffered traumatic injuries and had no vital signs such as breathing or heartbeat when she was found. The emergency responders did a cardio-pulmonary- resuscitation to revive her. At the hospital, she was put on ordinary care life support, which involves a feeding tube and hydration. Within about a month, her doctors determined that she was in a persistent vegetative state (PVS), and would not recover. This meant she had no brain function, and could not respond to her environment. This is the point when several issues were raised.35 There was no advance directive, but the family and many of Nancy’s friends felt they knew her wishes. Her parents requested to have her removed from life support because they knew she did not want to exist in a vegetative state, and four years had already passed since her accident, with no change in her condition.36 Nancy Cruzan’s parents went to the Missouri Court System to petition the court to give the doctor a protective order to allow them to take Nancy off the life support. The state trial Court granted the request based on Nancy’s housemate testifying that Nancy told her that she would not want to live in a vegetative state. The court decided that the statement was enough, since it was made when Nancy was competent. Nancy was therefore euthanized on the 26 Dec 1990.37 Karen Ann Quinlan was an American woman who became an important figure on the history of the right to die controversy in the United States. When she was 21, Quinlan became
31 https://wce.www.edu>nwchgee>overVI... Visited 22/05/2018 32 Alexander, Medical Science under Dictatorship. The New England Journal of Medicine. July 1949. 33 Ibid 34 Ibid 35 https://www.ncbi.m/m/nmih.gov>pubmed Visited 23/05/2018 36 https://en.m.wikipedia.org>wiki>cruza.... Visited 23/3/18 37mobile.nytimes.com>1990/12/27>nan… visited 23/05/2018
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AFJCLJ 4 (2019) unconscious after she consumed Quaaludes along with alcohol while on a crash diet and lapsed into coma, followed by a persistent vegetative state. After doctors, under threat from prosecutors, refused the request of her parents, Joseph and Julia Quinlan, to disconnect Quinlan’s respirator, which the parents believed constituted extraordinary means of prolonging her life, her parents filed a suit to disconnect Quinlan from her ventilator….38 On March 31, 1976, the court granted their request, holding that the right to privacy was broad enough to encompass Quinlans’ request on Quinlan’s behalf. When Karen Quinlan was removed from her respirator/ventilator in May 1976, she surprised many by continuing to breathe unaided. She was removed to a nursing home. Karen was fed by artificial nutrition for nine more years until her death – from respiratory failure June 11 1985.39 The case continues to raise important questions in moral theology, bioethics, euthanasia, legal guardianship and civil rights. The danger in the practice of euthanasia, from patients in persistent vegetative state like Cruzan, Quinlan, Terri Shaivo, to a healthy individual like David Goodall is as abhorrent as it is disturbing. Any attempt to justify the transformation would at the best be intellectually destitute, and unless law firmly puts her feet down, the grave potential for eventual metamorphosis into the euthanasia of people for such frivolous reasons as racial identity, religious beliefs, colour of the eyes, intellectual deficiencies etc is quite real.
No illness is incurable. Therapeutic medical practice is dynamic and solutions to illnesses emerge from day to day. Scientific discoveries proffer solutions to healthcare problems and the process of ageing from day to day. Science, the foundation on which medical practice is built has been able to infer that as time goes on even death will be optional, and ageing will be curable.40 It has been estimated that within the next 27years dying will be optional, and the process of ageing will be reversible. Humans will only die in accidents, never of natural causes or illness. Old age would be classified as an illness so that publicly funded research into its cure can extend. With the use of nanotechnology, the process will involve turning bad genes into healthy ones, eliminating dead cells from the body, repairing damaged cells, treatment with stem cells and ‘printing’ vital organs in 3D.41 Ageing is the result of DNA tails known as telomeres in chromosomes – of which every cell except red blood and sex cells have 23 pairs – becoming shorter, and reversing ageing involves lengthening the telomeres. Telomeres become damaged and shortened with the passage of time, a process that speeds up in the event of toxins entering the body – smoking, alcohol and air pollution are among factors that reduce the length of telomeres, thus accelerating ageing. The technique is
38 https://en.m.wikipedia.org>wiki>karen.... 39 Stryker, Jeff; ‘Right to Die; Life After Quinlan’ 40 https://www.thinkspain.com>news-spain 41 Ibid
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ANIGBOGU: Terri Schaivo to Goodall: The Dialectico-Jurisprudential Metamorphosis of Euthanasia already being employed in Colombia, where there are fewer regulations covering genetic manipulation.42
8. Conclusion and Recommendations In management of the terminally ill and the incurably ill, doctors have often found themselves in a dilemma, in the ugly situation of having to decide whether or not the patients should be assisted to end their lives as painlessly and as stress free as possible. The finality and irreversibility of death, as we know it now, frustrates healthcare providers and raises the question as to whether death can be mercifully delayed. In Contemporary practice of medicine, certain scientific innovations such as cryonics would seem, for now, to be as close to the solution as possible. This virtually tends to make the concept of euthanasia obsolete, more so that society has watched in dismay, as euthanasia is being propelled along the slippery slope, as evidenced in the metamorphosis ‘from Cruzan to Goodall’. Cryonics (from the Greek word ‘kryos’ meaning cold) is the low temperature preservation (usually at – 196oC) of people who cannot be sustained by contemporary medicine, with the hope or understanding that resuscitation and restoration to full health may be possible in the far future.43 In effect, cryonicists are of the opinion that medical advances will soon allow cryopreserved individual to be revived.44 Cryonics depends on beliefs that death is a process rather than an event, that clinical death is a prognosis of death rather than the diagnosis of death, and that the cryonics patient has not experienced information – theoretic death.45 Unequivocally, the inestimable value of human life is a cardinal feature in all climes, and cryonics visibly is an attempt to protect that gift of human life through low temperature preservation, if necessary for hundreds of years, until they can be revived, and cured of whatever illness or injury caused their legal death. This distinctly stands cryonics out from euthanasia.
The growth (degeneration) of euthanasia from Cruzan to Goodall demonstrates unequivocally that euthanasia has slowly but surely embarked on the path of the slippery slope – (killing started from the comatose patient or patient in persistent vegetative state, to a patient who is just not happy about growing old). This is unacceptable. God’s injunction is clear – ‘Thou shall not kill’ Euthanasia is murder/suicide, no matter how it is classified. In the terminally ill patient or the incurably ill patient, death should be allowed to take its natural course. It was William Shakespeare who in his work Julius Caesar declared ‘…..It seems to me most strange that men
42 [email protected] sat. April 21, 2018. 43 R. Mckie ‘Cold facts about cryonics’ The Observer July 13 2013 44 ‘Dying is the last thing anyone wants to do, so keep cool and carry on’. The Guardian 10 Oct. 2015. net nerved 12 Feb. 2016. 45 R. Merkle ‘The Technical Feasibility of Cryonics’ Medical Hypothesis, Elsevier 1992 39(1): 6-16 …..
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AFJCLJ 4 (2019) should fear, seeing death, a necessary end shall come, when it shall come’. When death is known, or observable to be excruciatingly painful, appropriate painkillers, devoid of death-causing side effects, should be administered in such doses as to alleviate pain, but not occasion death, or hasten death. Study of gerontology (the process of ageing) should be emphasized and intensified in the medical schools and Faculties of law, to facilitate the keying in of Nigeria into any possible modern techniques of reversing ageing and avoiding or modifying death. Study of nanotechnology, Nanomedicine, bioethics and biotechnology should be sine qua non to graduation from law faculties and colleges of medicine, to make for subsequent better and deeper understanding by the society, of these techniques that are steadily proving inevitable for the advancement of modern science. Right to die, pursued without restrictions or regulation, decriminalizes suicide, runs contrary to the provisions of the criminal code, and is inimical to the overall interest of the society. The concept of Right to die is grossly selfish, immoral, ungodly, runs contrary to the first law of nature (which is self preservation), and should be de-emphasized. ‘Primum non nocere’ is the ‘light house’ of medical practice. Any deviation from that can hardly be called medical practice. Medical practice devoid of primum non nocere and humanitarianism, lays the foundation for the comodification of life – a disaster of unfathomable, unquantifiable consequences.
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AMID & ORAEGBUNAM: Rethinking the Penalty of Harmful Traditional Practices Committed on Pregnant Women and Children under the Ethiopian Criminal Code
RETHINKING THE PENALTY OF HARMFUL TRADITIONAL PRACTICES COMMITTED ON PREGNANT WOMEN AND CHILDREN UNDER THE ETHIOPIAN CRIMINAL CODE*
Abstract The offences that endanger the life, body, and health of a pregnant woman and children through harmful traditional practices (htps) are proscribed under the 2004 Ethiopian Criminal Code. Those provisions are designed to serve as a guiding rule to dissociate the society from harmful practices. In view of that, the law should be enacted where the person commits a crime intentionally and who has more dangerous disposition than the person who commits the crime negligently, and his/her punishment also greater than the later. Also, the person who commits a grave crime should be punished more than one who commits a lesser crime. This article examines whether the provisions of the Code conform to the above criminal penalty principle. The article found that the penalty provided for crimes committed against the life, body, and health of pregnant women and children through htps are designed in a manner in which the person who commits the crime intentionally has the chance to be less punished than the person who commits the same crime negligently. In effect, those provisions are not only inconsistent with the purpose of criminal law and major sentencing principles, but they also infringe on the accused and victim’s rights in addition to degenerating public confidence in the justice system. Hence, the Ethiopian Federal Parliament should amend and redesign the provisions with the appropriate penalty.
Keywords: Harmful Traditional Practices, Sentencing Principles, Ethiopian Criminal Code, Pregnant Women and Children.
1. Introduction Traditional cultural practices reflect values and beliefs held by members of a community for periods often spanning generations. Every social grouping in the world has its own cultural practices and beliefs which guide its members on how they should live or behave. Hence, „Culture is a social heritage which includes all knowledge, beliefs, customs and skills that are available to members of a social group‟.1 It is also a source of individual and group identity. Within such social grouping, some
*Muluken Kassahun AMID, Lecturer of Law, School of Law, Mettu University, Ethiopia. Phone No: +251917529179; Contact E-mail; [email protected]. *Ikenga K. E. ORAEGBUNAM, PhD (Law), PhD (Phil.), PhD (Rel. & Soc.), MEd, BTh, BL, Reader and Head, Department of International Law & Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria. E-mail: [email protected]. Phone Number: +2348034711211; and 1 N Wadesango et. al., „Violation of Women‟s Rights by Harmful Traditional Practices‟ (2011) 13 Anthropologist. Page | 12 AFJCLJ 4 (2019) of the cultural practices and beliefs are beneficial to all members, while others are harmful to a specific group such as women and children. Beneficial cultural practices contribute to the development of legal pluralism across different countries particularly in the case of Alternative Dispute Resolutions. Apart from this, some practices are harmful and directly affront the dignity of members of the society when measured against modern acceptable standards of behavior and civility. In effect, different human rights instruments expressly proscribed htps and mandated state parties to eliminate those practices.2 Harmful practices differ from place to place based on the belief and customs of the group of society observes such act.3 Despite their harmful nature and violation of Abst-Pdf/Anth-13-2-121-11-720-Wadesango-N/Anth-13-2-121-11-720-Wadesango-N-Tt.pdf> accessed on 17 August 2018 2 International and Regional Human Rights Instruments proscribe htps includes Vienna Declaration and Program Action (Para. II. 38), Convention on the Elimination of Discrimination against Women (art.2 (f) and 5(a), CRC (art.24), Protocol to the African Charter on Human and Peoples‟ Rights on the Rights of Women in Africa (art.2, 4(d), and 5), African Charter on the Rights and Welfare of the Child (art. 21), UN Declaration on the Elimination of Violence Against Women (art. 2(a)), Beijing Declaration and Platform of Action (para. 114(a), 119, 125(a) and Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (art. 6B)). Besides, several Treaty Monitoring Committees‟ provide Statements on Traditional Values/ Practices. For instance, Committee on the Elimination of Discrimination against Women (General Recommendation No. 14 (preface) and No. 19 (para. 11)), Committee on the Rights of the Child General comment No. 4 (para. 39(9), and No. 7 para. 11(bi), Human Rights Committee (General Comment No. 28, para. 5), and Committee on Economic, Social and Cultural Rights (General Comment No. 14 (para. 21 and 22) deals issues related with htps and mandates state parties to ensure the elimination of harmful practices. Page | 13 AMID & ORAEGBUNAM: Rethinking the Penalty of Harmful Traditional Practices Committed on Pregnant Women and Children under the Ethiopian Criminal Code international human rights, such traditions persist because they are not questioned and take on an aura of morality in the eyes of those practicing them. In Ethiopia, Harmful practices that affect certain specific population groups such as women and newly born children are very rampant. It is said that there are around one hundred forty (140) htps affecting mothers and children occurring in almost all ethnic groups of the country.4 The Myths/beliefs behind to do such act are intended to prevent/cure different disease, and in some circumstance serves as a tribal marker.5 However, in reality, those practices lead to adverse health consequences including death, especially infant and maternal mortality, disability, and transmission of diseases. The previous 1957 Ethiopian Penal Code fails to expressly acknowledge the grave injuries and sufferings by reason of htps. However, the 2004 Federal Democratic Republic of Ethiopia (FDRE) Criminal Code comprehensively proscribed several htps which are inimical and prejudicial to human rights. Among those acts, the offence of htps endangers the life, body, and health of a pregnant woman and children are among crimes recognized under the criminal code. They are practiced within different social groups due to deeply entrenched discriminatory views, patriarchal dominations and irrational beliefs and attitudes.6 For each offence, the code provides the respective penalties based on the gravity of the crime, degree of individual guilt, and other circumstances of its commission. This paper intended to examine the rationality and appropriateness of the penalty provided for offences committed against the life, body, and health of a pregnant woman or a child through harmful traditional practices particularly from article (art.) 561-563 of the Criminal Code. In order to do so, the paper organized into four sections. Following this introductory section, section two discusses about 4 D Assefa et. al., „Harmful Traditional Practices Module‟, Awassa College, 2005, Page | 14 AFJCLJ 4 (2019) the offense of htps committed against pregnant women and children recognized under the FDRE Criminal Code. Section three examines the penalties of htps committed on pregnant women and children and explores the problem of its design. Finally, section four concludes the article. 2. The Offences of Htps Committed Against Pregnant Women and Children under the FDRE Criminal Code The FDRE constitution provides several guarantees and limitations towards enjoyment and exercise of cultural rights. Accordingly, non- discrimination based on culture, indigenous culture as source of our proud, the right to conclude marriage and resolve family and personal disputes in accordance with customary laws, the rights of nations, nationalities and peoples to develop and to promote their culture, having common culture as one parameter to define the concept of nations, nationalities, and peoples are among the guarantees.7 Moreover, the constitution imposes duty on the government to protect and preserve cultural legacies, to support the growth and enrichment of cultures and traditions that are compatible with fundamental rights and democratic norms.8 Apart from this, the constitution also affords limitations towards customary practices. Yet, the defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity. No one may invoke cultural diversity to infringe upon human rights guaranteed by law, nor to limit their scope.9 The FDRE constitution stipulates the limitations of compatibility of customary practices with the constitution, the right of women to eliminate and, to be protected, from the influences of harmful customs, and harm arising from pregnancy and childbirth as well as provision of education in a manner free from cultural prejudices.10 These restrictions ensure the respect and protection of fundamental human rights and freedoms. This emphasizes that, the FDRE Constitution guarantees respect for the cultures of peoples, but it does not buttress up those practices scientifically proven to be harmful. In view of the government's obligation to eliminate htps, the Criminal Code included several provisions that forbid htps. Those crimes are separately incorporated under the code from art. 561- 570. According to the catalogue of offenses in the code, those crimes committed through htps are among crimes committed against the right to life, mental and bodily security and health of the 7 Federal Democratic Republic of Ethiopian (FDRE) Constitution 1995 Preamble para. 2 and 3, art. 34(4), 39(2 and 5) 8 Id, art. 41(9) & 91(1) 9 UNESCO Universal Declaration on Cultural Diversity 2001 Art. 4, Human Rights Council Resolution 10/23 on the Independent Expert in the field of cultural rights, 43rd Meeting, March 2009, para. 4, Page | 15 AMID & ORAEGBUNAM: Rethinking the Penalty of Harmful Traditional Practices Committed on Pregnant Women and Children under the Ethiopian Criminal Code person.11 The provisions serve as a guiding principle to dissociate the society from htps.12 Among these offences, the crimes committed against pregnant women and children through htps are recognized under art. 561-56313. The offence can be committed either by action or omission. Accordingly, massaging the abdomen of a pregnant woman, shaking a woman in a prolonged labor, soiling the umbilical cord of a newly-born child with dung or other similar substances, excising the uvula of a child, taking out milk teeth or feeding it with butter are crimes committed through action, whereas keeping a newly-born child out of the sun or preventing the child from being vaccinated and nutritional taboos are among crimes committed through omission. Acts of htps listed under art. 561- 562 are enacted in an illustrative manner. As a result, if any htps has proven to be harmful by the medical profession they are punishable. In effect, the acts of htps not included under the criminal code, but commonly practiced in different parts of the country are punishable. For instance, harmful practices committed on pregnant women includes, isolation during delivery and after delivery, suturing the vagina after delivery, drastic measures to hasten the expulsion of the placenta, giving Kosso (bitter herbal medicine) to pregnant women, and nutritional taboos. Similarly, the commonly practiced htps that affect children include inducing sneezing to force out after birth, and food taboos are punishable under the criminal code.14 Moreover, art. 568-570 governs the issues related to the crime which is applicable to all htps including crimes endangers the life and body of pregnant women and children. Art 568 deals with the applicability of concurrent crimes where the victim has contracted a communicable disease as a result of htps.15 Art. 569 regulate criminal responsibility in case of participation in htps offences and Art. 570 govern the criminal liability in case of incitement against 11 Crimes Committed against life and Health of persons through Harmful traditional Practices are categorized under chapter three of Book V (Crime against individuals and Family), Title I-(Crimes against Life, Person, and Health). Moreover, other crimes like abduction (art. 587), Bigamy (art. 650), Duels (art. 578) and early marriage (art. 648) found in other parts of the criminal code are also committed through htps. 12 FDRE Criminal Code 2004 Preamble, para. 3; D Girma, A Handbook on the Criminal Code of Ethiopia (Printed by Far East P.L.C 2012) p.18. 13 Art. 561(1A) and 562(1B) proscribes htps committed on pregnant women, while Art. 561(1b) and art. 562(1b) governs htps committed on newly born child and art. 561(1C), 561(2), 562(2C) and 562(2), 568- 570 applicable for both pregnant women and children. However, the law neglects the criminality of death or bodily injury on the pregnant child as a result of htps, unlike abortion. 14 Dawit, (n. 4), p. 1-2 15 Accordingly, art. 568 cross-refer to the applicability of Art. 514 (Spreading of Human Disease), concurrently. Art. 568 stipulates, in case the crime is committed intentionally, a punishment from rigorous imprisonment up to death penalty, depending on circumstances of the commission of the crime and gravity of the offense, while if the crime is committed negligently, the punishment shall be simple imprisonment or fine. Page | 16 AFJCLJ 4 (2019) enforcement of provisions prohibiting htps.16 The later provision is a limitation to freedom of expression as it encourages disobedience of the laws designed to dissociate society from htps. 3. Penalties of Crimes Committed Against Pregnant Women and Children through Htps and its Problems Overview of the Penalties of Htps Crimes Committed on Pregnant Women and Children The FDRE criminal code embarks punishment as one of the mechanisms to achieve the purpose of criminal law to preserve the peace and security of society along with giving due notice and measures.17 Punishment, among other things, aims at achieving the goals of deterrence and rehabilitation.18 The Code adopts the determinate sentencing statute which is a model of criminal punishment in which an offender is given a fixed term that may be reduced by good time or earned time.19 Currently, the Federal Supreme Court issued Sentencing guideline with the view to reduce sentencing disparity, ensure uniformity and correctness of sentencing among offenders of the crime.20 Depending on the gravity of the crime, the criminal code provides principal and secondary kinds of penalties including for crimes endanger the life, body, and health of pregnant women and children.21 Accordingly, in the case of art 561(1), causing death of pregnant women and children as a result of 16 Accordingly, the provision states “Any person who publicly or otherwise incites or provokes another to disregard the provisions of this Code prohibiting harmful traditional practices, or organizes a movement to promote such end, or takes part in such a movement, or subscribes to its schemes, is punishable with simple imprisonment for not less than three months, or fine not less than five hundred Birr, or both.” 17 FDRE Criminal Code, (n. 12) art. 1; „FDRE criminal Code Explanatory note’ 2007 p. 2; D Girma, (n. 12) p.5. 18 Ibid. 19 In determinate sentencing statute model, the offender after receiving determinate sentence knows how much time they will spend in prison. It has the advantage of certainty by avoiding the tension from the offenders on how much time they will have to be confined in prison, unlike indeterminate statute. In contrast, it also, characterized by sentencing disparity as judges pick and choose the number within the imprisonment range defined by the legislature. (D Girma & M Feleke, „Sentencing and Execution Teaching Material‟ Sponsored by the Federal Justice and Legal System Research Institute 2009, p. 31-33; A Lawrence & D Lyons, „Principles of Effective State Sentencing and Corrections Policy‟, A Report of the National Conference of State Legislatures, Sentencing and Corrections Work Group, August 2011, p.31 Page | 17 AMID & ORAEGBUNAM: Rethinking the Penalty of Harmful Traditional Practices Committed on Pregnant Women and Children under the Ethiopian Criminal Code htps, intentionally, will be punishable by fine or simple imprisonment from one year up to three years.22 And if the crime is committed, negligently, art. 561(2) cross-refer to the punishment of negligent homicide. If the victim injured bodily harm or mental impairment, intentionally, art. 562(1) impose penalty of simple imprisonment up to six months or fine up to one thousand (1000) birr and in case of negligent crime art. 562(2) cross-refer its punishment to art 559 (negligent bodily injury). Besides, art. 563 stipulate the possibility of the offender may be released by warning in the above cases up on court discretion.23 Apart from this, art. 567 cross-referred the applicability of the penalty of art. 561 and 562 in case of htps inflicts the life, body, and health of person other than those htps recognized as a crime under the criminal code. Comparatively, the law intentionally makes the penalties of htps are less severe than other ordinary crimes committed on the life and body of persons. Because, htps are usually committed not with the intent of injury/wrongdoing, rather due to deep belief within the society as it's good. This indicates that, as society became aware about the risk of each act/s they relieve themselves from the practice.24 Hence, the purpose of punishment of htps crime more focused on deterrence and reformation rather than other theories of sentencing such as incapacitation. The calculation of the penalty of htps crime is based on the formula set out for unlabelled crimes under the operational Federal Supreme Court Sentencing guideline No. 2/2014 due to the crime of htps has not been cataloged into labels.25 The problem of Penalties of Htps Crime Committed Against Pregnant Women and Children The legislature in fixing the range of punishment, the judiciary in fixing exact penalty and executive organs in executing imposed penalty should not exercise their power arbitrarily.26 Rather they are required to consider the principles and policies of sentencing. These include principle of legality, equality, consistency, proportionality, predictability, respect for human dignity, accountability, and transparency.27 At this juncture, this paper tries to examine the penalty of htps committed on the life and bodies of pregnant women and children, particularly from art. 561-563 as follow; One of the 22 The code doesn‟t specify the minimum and maximum amount of fine. In such a case, if the special part of the criminal code is silent, the court should determine within the minimum and maximum ranges of fine (10-10,000 birr for physical person) provided in general part of the Criminal code (art. 90 (1)). 23 According to art. 563 of the Criminal code, the Court, taking into account the age, education, experience or social status of the criminal may give „only warning‟, instead of principal punishments of the code. This provision is an exception to art. 121, which provides secondary punishments shall not be applied except together with and subject to a principal punishment. 24 FDRE Criminal code Explanatory note (n. 17) p. 267 25 Sentencing Guideline, (n. 20) art. 26(2). 26 A Lawrence & D Lyons (n. 19) p. 4; D Girma & M Feleke, (n. 19) p. 24-29. 27 Id, p.15-20; Federal Judicial Professionals Training Center, „Manual on Sentencing Guideline‟ 2011, p.5 Page | 18 AFJCLJ 4 (2019) principles of the law is a person should not be benefited from his own fault. 28 In the context of criminal law, the punishments should consider the degree of individual guilty, dangerous disposition of criminal, antecedents, motive and purpose, his personal situation as well as the gravity of the crime and the circumstances of its commission.29 In other words, the law should be enacted where the person commits a crime intentionally has more dangerous disposition than the person commits the crime negligently, and his/her punishment also greater than the negligently committed crimes. Also, the person commits a grave crime should be punished more penalty than who commits a lesser crime.30 In contrast, the penalty provided for crimes endanger the life, body, and health of pregnant women and children through htps has been the reverse of the principle. In view of that, art 561(1) stipulates the person causes death of pregnant and children through htps, intentionally, will be punished by fine or simple imprisonment up to three years while the person commits the same crime negligently has been punished under art 543, which imposes more severe penalty than intentional crimes. The sentence provided under the later provision has been simple imprisonment from six months up to rigorous imprisonment of fifteen (15) years. Moreover, the penalty of fine from range from 2000(two thousand) up to 15000 (fifteen thousand) birr cumulatively with imprisonment.31 Similarly, according to art 562(1), a person intentionally causes bodily injury or mental impairment to pregnant women or to a newly-born child as a result of htps will be punished with fine or simple imprisonment not more than six months, whereas the person commits the crime negligently should be punished under art. 559. The circumstances of art. 559(2) demonstrates that, for instance, if the crime has a grave injury the offender is punishable by simple imprisonment of not less than six months and fine not less than one thousand birrs.32 28 In Latin this is called “Commodum Ex Injuria sua non habere debet”( The wrongdoer) should not derive any benefit from his own wrong) (B A. Garner, Black’s Law Dictionary (8th Ed., Westgroup-St Paul Publisher, USA, 2004) p. 5270. 29 See art. 88(2) of the Criminal Code; M Hough et. al., „Public attitudes to principles of Sentencing‟, Sentencing Advisory Panel Research Report 2009, p. 23 Page | 19 AMID & ORAEGBUNAM: Rethinking the Penalty of Harmful Traditional Practices Committed on Pregnant Women and Children under the Ethiopian Criminal Code The punishment range of above provisions demonstrates that the person commits crime intentionally has the chance to be punished less than the person commits the same crime negligently. If negligently committed crime is more punishable than intentionally committed crimes, the justice system among other things subject to the following troubles. Firstly, the purpose and goal of criminal law to ensure order, peace, and security of the state and its inhabitants for public good became endangered as the system encourages dangerous disposition of the criminal. This makes the law as an instrument of oppression rather than apparatus of rule of law. In effect, the law fails to achieve the deterrence rationales of sentencing. Moreover, the act makes justice system to lose public confidence and leads to disobedience of the laws. Secondly, such kind of penalty system violates the right of accused starting from investigation up to judgment and execution of sentencing. This includes, comparatively, the person suspected/ accused by negligent crime subject to more duration of period of limitation, more possibility fail to get bail rights or requested to produce more sufficient surety (during investigation), subject to more imposition of severe penalty (during judgment), and during execution of sentencing subject to more strict confinement in case of rigorous imprisonment, as well as less chance to be released on parole than the person accused for the same intentional crimes.33 By doing so, the penalty of above provisions contradicts the sentencing principles of consistency, proportionality, predictability, and equality before the law. Thirdly, making the punishment of negligent crime more severe penalty than intentional one deteriorates the interest of victims particularly women and children. Accordingly, as the provision of the law encourages the offender to be benefited from his/her dangerous disposition it makes the victims more vulnerable to intentional crimes. The act is also against the feminist theory which propagates to consider the interest of women (gender sensitive) in a legislative measure. Similarly, the provision furthermore not only infringes the best interest of child, but also put the right to life, bodily security and health of them at risk. Besides, the penalty provided in circumstances stipulated under art. 563 has been contrary to principle proportionality of sentencing. The provision stipulates „In respect of the crimes specified under art. 561(death) and 562(bodily injury or mental impairment), the Court…. may give him only a „warning‟ instead of fine or a penalty entailing loss of liberty‟. Here, the law allows death and injury of the victim to be relieved only by warning. In other words, the law treats death and bodily injury equally irrespective of the difference of level of injury happened on the victim. Moreover, permission of the law to impose warning in the event of death of the victim is irrational and may discourage the societies to dissociate themselves from harmful practices. In general, the provisions barraged above are inconsistent with the purpose of criminal law and major sentencing principles. Moreover, such provision infringes accused and of art. 559(2) the penalty will be Simple Imprisonment of not less than six months and a minimum fine of 1000 birr, cumulatively. 33 See art. 217, 108, 202 cum 561 and 562 of Criminal code and art. 69 (2a) of 1965 Ethiopian Criminal Procedure Code. Page | 20 AFJCLJ 4 (2019) victim‟s rights and may deteriorate public confidence on the justice system as a whole. In this regard, House of Peoples Representatives has the responsibility to amend above provisions with the appropriate penalty in case of negligent crimes and art 563 of the Criminal Code. In order to do so, House of Federation, the speaker of the house, Federal Supreme Court, Committees of the house and other governmental institutions directly accountable to the house have the power to initiate the draft bill, in addition to the government (the principal body to initiate draft law).34 4. Concluding Remarks With the view to eradicating harmful practices, the 2004 FDRE Criminal code criminalizes several harmful practices in separate chapter including the crimes committed against the life, body, and health of pregnant women and children through htps from art. 561-563. However, the penalties of each provision entitle the wrongdoer to benefit from his own wrong by making the punishment of negligent crimes less severe than the individuals commit the same crime intentionally, one hand and allows the courts to release the offender causes death of victim through htps with the warning only upon his discretion. Designing the law in such manner daunt the purpose and goal of criminal law to ensure order, peace, and security of the state and its inhabitants for the public good and jeopardize the victims more vulnerable to intentional crimes instead of dissociating society from harmful practices. Thus, the House of people representative should repeal the existing penalty of art. 561 (2), art. 562 (2) and art. 563 and replace with the fitting penalty. 34 FDRE House of Peoples' Representatives Working Procedure and Members' Code of Conduct (Amendment) 2005 Art. 6. Page | 21 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience EFFECTS OF ECONOMIC AND FINANCIAL CRIMES ON SUSTAINABLE DEVELOPMENT: NIGERIAN EXPERIENCE* Abstract Arguably, the Nigerian Society is bedeviled by the specter of real, clear and present danger of economic woes, economic and financial crimes as well as other non-violent crimes which are adverse to sustainable economic development. There is no gainsaying that developmental efforts have been marred by economic and financial crimes including corruption, abuse of office and corrupt practices. Economic and financial crimes do not only undermine the economic well being of the people but also threaten the Nigerian nascent democracy and the rule of law as they provide the breeding grounds for terrorism, insurgence and other non-violent crimes to thrive. It is however shocking and embarrassing that despite the litany of laws, agencies and institutions put in place to checkmate and/or rather combat the economic and financial crimes, the menace has continued to rear its ugly head in the Nigerian Political economy. This paper therefore examined the social economic dynamics of economic and financial crimes and other non-violent crimes as well as their causes. To achieve the above objective, this paper aimed at determining the effects/implications of economic and financial crimes and other non-violent crimes on the sustainable economic development on a Nigerian State and ways to effectively and completely eradicate this economic scourge or at worst, reduce same to the barest minimum through the instrumentality of the laws, provision of good governance, re- orientation of the citizenry on the evil of this cankerworm, rejigging and strengthening the law enforcement and regulatory agencies to do the needful within the ambit of laws in providing for a society that is free from the economic and financial crimes, corrupt practices and other non-violent crimes in Nigeria. Keywords: Economic and Financial Crimes, Sustainable Development, Nigeria, Effects of 1. Introduction It is imperative at this point to look at the definitions of Economic and Financial Crimes, Sustainable Development and corruption for proper understanding of this work. Economic and Financial Crimes is seen as any non-violent crimes that result in financial loss.1 It has been defined by section 46 of the Economic and Financial Crimes Commission (Establishment, etc,) * E.Q. OKOLIE, LLB, (Hons.) BL, LLM, PhD, Senior Lecturer, Former Head of Department, Faculty of Law, Chukwuemeka Odumegwu Ojukwu University (formerly Anambra State University), Igbariam Campus Anambra State. The author may be contacted at [email protected]; +2348033762068. 1 The Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Fact Sheet 5,18-25 April 2005, Bangkok, Thailand, www.unodc.org, accessed on 29/05/17; www.11uncongress.org, accessed, on 29/05/17; www.unis.unvienna.org., accessed on 29/05/17. Page | 22 AFJCLJ 4 (2019) Act (EFCC Act)2 - which is the interpretation section of the Act as: the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organised manner thereby violating existing legislation governing the, economic activities of government and its administration and includes any form of fraudi narcotic drug trafficking, money laundering; embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil hunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc. In order to enforce the provisions of the, EFCC Act, a Commission known as the Economic and Financial Crime Commission3 was set up in 2003 with the following responsibilities among others:4 i. To investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, securities market fraud, -fraudulent, computer credit card fraud, contract scam, etc.5 ii. The Commission is to co-ordinate and enforce all economic and financial crimes laws and enforcement functions conferred on any other person or authority as well as adopt measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorists activities, economic and financial crimes related offences and properties the value of which corresponds to such proceeds6 iii. To adopt investigate, regulate and prevent measures to eradicate the commission of economic and financial crimes7. It is important to distinguish between economic and financial crimes and corruption because one might think that they are synonymous. Corruption as a term has different connotations. For some reason corruption does not have a generally accepted definition. The reasons for this difficulty stems from the following reasons: i. There are variants of corruption for example: political corruption, economic, corruption, financial corruption and social corruption. ii. It is a phenomenon that is intricately woven into and separate or distinct from other forms of political and administrative behavior. 2 Cap. E 1, Laws of the Federation of Nigeria, 2004. 3 Ibid, s 1. 4 Ibid, s 6. 5 Ibid. 6 Ibid. 7 Ibid. Page | 23 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience iii. Scholars on issue of corruption share different background and orientation which impact each scholar’s perception of the meaning of corruption.8 The World Bank defined corruption as: The abuse of office for private gains; public office is abused for private gain when an official accepts, solicits or extorts a bribe. It is also abused when private agents actively offer bribe to circumvent public policies and processes for competitive advantage and profit. Public office can also be abused for personal benefit even if no bribe occurs, through patronage and nepotism the theft of state assets or diversion of state revenue.9 Doig10 describes corruption as, ‘any use of official position, resources, or facilities for personal benefit/or possible conflict of interest between public position and private benefit’. This-involves offences of misconduct in public offices and also covered by variety of international regulations. Section 2 of the Independent Corrupt Practices and Other Related Offences Act, defines corruption as including ‘bribery, fraud, and other, related offences’11 In Bioku v. Police12, Bairainan J (as he then was) defined the word corruption as: ‘...receiving or offering of some benefit as a reward or inducement to sway or deflect the receiver from honest and impartial discharge of his duties’. Black's Law Dictionary defines corruption-as: ‘The act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others: or a fiduciary or official use of a station or office to procure some benefits either personally or for someone else contrary to duty and the right of others’13. Corruption has been defined as a dishonest or illegal behavior especially by powerful people (such as government officials or police officers).14 It has also been defined as abuse of entrusted power for private gain. It can be classified as grand15, petty16 and political, depending on the amounts of money 8O. Friday, Exploring the Legal and^ Practical Problems in Controlling Electoral corruption in Nigeria, (M.A. Dissertation, University of North Umbria, New Castle Upon Tyne, 2003); p 2. 9 World Bank Report, 'Helping Country Combat Corruption-: the Role of the World Bank', (Poverty Reduction and Economic Management, World Bank, 1997) p 8-9. 10A. Doig, 'From Lynskey to Nolan: The Corruption of British Politics and Public Service' (1996) Vol. 23, Journal of Law and Society, pp 36-56. 11 The Independent Corrupt Practices and Other Related Offences Act, 2000. 12 (1952), 20 NLR 20. 13 B. A Gamer, Black’s Law Dictionary (7th edn, Minnesota: West Group, 1999) p 348. 14Merriam-Webster Dictionary, ‘Definition of Corruption’, https://www.merriam- Page | 24 AFJCLJ 4 (2019) lost and the sector where it occurs.17 It is also defined as wrongdoing on the part of an authority or powerful party through means that are illegitimate, immoral or incompatible with ethical standards. Corruption often results from patronage and is associated with bribery.18 Corruption covers a wide' range of social misconduct. This ranges from fraud, extortion, embezzlement, bribery, nepotism, influence peddling, bestowing of favours to friends, rigging of elections, abuse of public property, leaking of official government secrets, sale of expired and defective goods like drugs, foods, electronics and spare parts among others to the public19. So far all the definitions of corruption tend to agree that corruption is an illegal act perpetuated in the course of illegitimate duty, which results in a personal gain. All the definitions have three common elements, viz: corruption is abuse of power, violation of official or fiduciary duty and intentional design to obtain personal gain against, the interest .of the public or individuals which is the feature of the earlier definitions. The definition also introduces the element of secrecy to suggest that corruption is perpetrated secretly. But the reckless and audacious manner with which corruption is committed in Nigeria makes it difficult to agree that corruption is secretly committed From the foregoing definitions, it is very clear that both words are not the same. Corruption is restrictive in nature compared to economic and financial crimes which is very broad and it forms part of the components of economic and financial crimes. Corruption also has to do with somebody in position or power or authority while economic and financial crimes can be committed by both those in power and the followers (ordinary citizens of the country). Sustainable Development on the other hand has been defined in the Report, ‘Our Common Future’ (also known as the Brundtland Report) by the World Commission on Environment and Development in 1987, as: ‘Development that meets the needs of the present without compromising the ability of future -generations to meet their oven needs’20. It has also been defined as: 16Ibid. Petty corruption occurs at a smaller scale and takes place at the implementation end of public services when public officials meet the public. For example, in many small places such as registration offices, police stations and many other private and government sectors. 17Transparency International, ‘What is Corruption?’, Page | 25 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience the organising principle for meeting human development goals while at the same time sustaining the ability of natural systems to provide the natural resources and ecosystem services upon which the economy and society depends. The desirable end result is a state of society where living conditions and resource use continue to meet human needs without undermining the integrity and stability of the natural systems21. Therefore, this paper intends to critically look at the impact of economic and financial crimes on economic development, social development and environment protection in Nigeria for the present generation and the generation yet unborn. In discussing this work, we will look at the history of economic and financial crimes in Nigeria, causes of economic and financial crimes, some Nigerian high profile cases on economic and financial crimes, the effect of economic and financial crimes on sustainable development in Nigeria, recommendations and conclusion. 2. Historical Perspective of Economic and Financial Crimes in Nigeria The first official corruption in Nigeria was in 1950 when' the first Commission of Inquiry was established to unravel some wrong doings in African Continental Bank (ACB)22. A highly respected politician -Dr. Nnamdi Azikiwe was alleged to have abused his office by allowing public funds to be invested in the bank in which he had interest. The scandal led-to the setting up of Justice Strafford Forster-Sutton Commission of Inquiry on 24 July, 1956 to investigate the scandal. The Panel's report indicted the politician which made him to transfer all his interest-in the bank to Eastern Nigerian government. The case of Dr. Azikiwe was significant because it opened the way for similar Panels to be set up to investigate-other cases of abuse of some other Public Officers. Two years after independence, Chief Obafemi Awolowo became a subject of a probe for corrupt practice. The allegation was that various statutory corporations, including a private company- National Investment and Property Company were used in various ways to divert public funds into, unauthorised projects. economic development/economic growth, social development/social inclusion and environmental protection. It has 17 goals namely: no poverty, zero hunger, good health and well-being, quality education, gender equality, clean water and sanitation, affordable and clean energy, decent work and economic growth, industry, innovation and infrastructure, reduced inequalities, sustainable cities and communities, responsible consumption and production, Climate- action, life below water, life on land, peace, justice and strong institutions, and partnerships for the goals. These goals known as Sustainable Development Goals (SDGs) and otherwise known as the Global Goals are a universal call to action to end poverty, protect the planet and ensure that all people enjoy peace and prosperity. The SDGS are proposed set targets relating to future international development and are to replace the Millennium Development Goals (MDGs) which are supposed to have expired by the end of 2015. 21https://en.wikipedia.org/wiki/pages/what-is-sustainable-developmenf accessed on 29th May. 2017. 22A.S. Fatai, etal ‘An Appraisal of the Performance of the Economic and Financial Crime's Commission in Nigeria’, (2010), Vol. 54, International Journal of Offender Therapy and Comparative Criminology, 1047- 1067. Page | 26 AFJCLJ 4 (2019) These allegations were, made by some leading members of the Action Group. These were Ayo Rosiji, Abiodun Akerele and Chief O.O. Okonkwo. The then federal government reacted by instituting a Commission of Inquiry headed by Justice G. B. Coker to investigate the allegations23. The Commission's report was released on December 31st, 1962. The report revealed clear evidence, of financial mismanagement and diversion of public funds. The report indicated that Chief Awolowo knew about the diversion of large sums of money into the coffers of .Action Group. Subsequently the assets of National Investment and Property Company were taken over by the Western Region government. About four years later after Chief Awolowo’s probe, another Commission of Inquiry was instituted to investigate some public officers in Mid Western region including the then Premier of the Region Chief Denis Osadebey and his Deputy, Chief Omo-Osagie. The Commission's report indicted the duo of corrupt enrichment and made them to forfeit their loot to the government. They were banned from holding public office for a period of not less than ten years.24 There are statistics that between 1957/58 and 1965/1966,'the nation’s crude oil was under-priced due to the- deliberate connivance by the protagonists of Nigerian independence who lent support to the oil companies who perpetrated the fraud. The excess of the under payment was shared by the actors25. The effect of this fraud was that the Oil Companies that were involved were paid 270.340 pounds for each 1000 barrels, of crude oil they exported, but Nigerian government received 190 pounds for 1000 barrels. The estimated loss to Nigeria was 20 million pounds. Since then, the wave or tide of economic and financial crimes’ has spread like wide fire with many tentacles. It is on record that the first military coup d’ etat in Nigeria in 1966 was predicated on massive corruption among the political elites. This coup d’etat-was pioneered by young military officers whose desire was to rid-the country of corruption: The Commissions of Inquiry into the assets, of public officers set up by the then Federal Military Government revealed large scale corruption and unjust enrichment by the overthrown civilian political leaders. From then onward, every successive government has found many public officers guilty of one form of economic and financial crimes or the other. Successive administrations since Independence have .always had anti-corruption crusade as one of its cardinal programmes; but at the end of such administration, corruption becomes more pandemic than that government met it. Different administrations, these past years, have evolved different practical measures or policies for tackling the menace of corruption in the country. In the Second Republic, the then President Alhaji Shehu Shagari, launched National Ethical Revolution in 1981, the Military junta 23Newbreed Magazine, July 2, 1989, 10. 24Essien et al; 'Corruption in Nigeria: Dimensions and Implication for National Development’ Proceedings of the 46th Annual Conference of the Nigeria Association of Law Teachers, held 22nd - 26th April, 2013, at University of Ilorin, pp 329-330. 25 Ibid. Page | 27 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience of General Muhammadu Buhari introduced the War against. Indiscipline, the administration of Late General Sani Abagha brought on board War against Indiscipline and Corruption, Chief Olusegun Obasanjo administration embarked on Anti-corruption campaign and Late President Musa Yar' Adua during his tenure launched a policy of Zero Tolerance-for Corruption in 2008.26 Late President Yar' Adua went further with his campaign by appointing Corruption Monitors to consistently check public officers and expose any fraud that is identified by them-in any Federal Government Agency. Dr. Goodluck Jonathan's administration launched the Transformation Agenda. There is no doubt that these policies were laudable, unfortunately none-of them survived-the next administration. Due to inconsistency in these policies, it was impracticable 'to successfully' sustain the fight against corruption. Since the attainment of political independence in 1960, the Nigerian state has made serious attempts towards fighting or eliminating corruption in the country. To achieve this objective a number of legislations were enacted. Some of these legislations include; i. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) ii. The Criminal Code Act27 iii. The Penal Code Act28 iv. Corrupt Practices Decree29 v. Independent Corrupt Practices and Other Related Offences Act30 vi. Banks and Other Financial Institutions Act31 vii. Code of Conduct Bureau and Tribunal Decree of 1975 now re-enacted32 as Code of Conduct and Tribunal Act.33 viii. Advanced Fee Fraud and Other Related Offences Act34 ix. Money Laundering Decree and now codified as Money Laundering Act35 x. Public Accounts Implementation Tribunal Act36 xii. Fiscal -Responsibility Act37 26D. A. Ajailaye, Corruption in the Public Service of Nigeria: A Nation's Albatross (Lagos: Nigerian Institute of Advanced Legal Studies, 2008) p5. 27 Cap C 38, Laws of the Federation of Nigeria, 2004. 28 Cap P 3, Laws of the Federation of Nigeria, 2004. This Act is applicable only in the; Federal Capital Territory, Abuja. 29 No 38 of 1975. 30 The Independent Corrupt Practices and Other Related Offences, op. cit. 31 Cap B 3, Laws of the Federation of Nigeria, 2011. 32Cap C 15, Laws of the Federation of Nigeria, 2011. 33Cap A 6, Laws of the Federation of Nigeria, 2004. 34 No.13 of 1995 now, Cap M' 18, Laws of the Federation of Nigeria 2004 35 Cap P 36, Laws of the Federation of Nigeria 2004. 36 Cap P 43, Laws of the Federation of Nigeria 2004 Page | 28 AFJCLJ 4 (2019) xiii. The Economic and Financial Crimes Act38 Apart from the legislations identified above, the government has also put in place many institution's as vehicles for fighting corruption in the country. The said institutions are as follows: (a) The independent Corrupt Practices and Other Related Offences Commission39 (b) The Economic and Financial Crimes (Establishment) Commission40 (c) The Code of Conduct Bureau and Tribunal41 (d) The Office of the Auditor-General of the Federation42. (e) The Fiscal Responsibility Commission43 (f) The Public Accounts Implementation Tribunal44 (g) The Bureau of Public Procurement45 (h) The National Judicial Council46 (i) The Nigeria Police Force47 (j) The Courts48 In spite of many programmes, institutions and laws put in place by different administrations to fight these crimes, the menace has 'continued unabated. Economic and ‘financial crimes have remained a matter of public discourse at every level of the society. Every Nigerian appears to be adverse to these crimes yet the cankerworm continues to thrive: The question therefore is, if we are all condemning corruption; who are those involved in the nefarious act? The present administration of President Muhammadu Buhari, anchored its change mantra on total eradication of corruption and other corrupt practices which, is encapsulated in ‘Change begins with Me’. Nigerians are waiting- and indeed the international community is 'waiting to see how this campaign slogan is going to translate to a corrupt free society, but one dare to say that the feelers appear not to be that promising. The level and dimension of economic and financial crimes being discovered and exposed by the present government is in public domain and to everybody's knowledge. It is really an embarrassment to the country. Akinseye-George remarked some time ago that in recent times, corruption and other economic crimes 37 Cap F 40, Laws of the Federation of Nigeria 2011. 38 Cap E 1, op.cit. 39 s 3(1 )(2), Independent Corrupt Practices and Other Related Offences Act, op. cit. 40 s .1(1X2), Economic and Financial Crime Establishment Act, op. cit. 41 s, Code of Conduct and Tribunal Act 42 s 85((l)(2),Constitution of the Federal Republic of Nigeria, 1999 (as amended). 43 ss 1& 2 The Fiscal Responsibility Act, op. cit. 44 s, Public Accounts Implementation Tribunal Act, op.cit. 45 s The Bureau On Public Procurement Act No. 14 of 2007. 46 Schedule, Part 1, Item paragraph 20-22, Constitution of the Federal Republic of Nigeria, op.cit. 47 s 214, Constitution of the Federal Republic of Nigeria, op,cit. 48 s 6 of the Constitution of the Federal Republic of Nigeria, op.cit. Page | 29 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience have reached such an epidemic proportion that sometimes one thinks that the entire fabric of the society will collapse through their combined weight.49 3. Some Nigerian High Profile Cases on Economic and Financial Crimes Apart from the above mentioned cases, other high profile cases on economic and financial crimes in the country are as follows. The case of Lakanmi & Anor v. A. G. Western State50 showed how a number of persons forfeited their assets during General Yakubu Gowon's administration. In 1974, the then Minister of Communications, Mr. J. S. Tarka was forced to resign over allegations of corruption and abuse of office51.’ In 1974, the. then Federal government ordered through the Nigerian ‘National Supply Company, for two million metric tonnes of cement from USSR, Romania and the USA. The ministry which needed 2.9 metric tonnes for its projects placed order for 16.23 million metric tonnes. At the material time, the cost of a tonne including final delivery was $40 per tonne. The inference to be drawn is that someone was enriched by $75 per ton multiplied by 16.23 million metric tons. A Panel that was set up by the government and headed by Justice M. B. Belgore to investigate the irregularities indicted Dr. Damcida (who was the permanent Secretary in the ministry). He was dismissed along with Captain Ekename, F. A. Ilori, S. Enebechi and Osuman Ahmadu Suka.52 In the 4th Republic there were a few examples of the government's efforts at prosecuting and punishing offenders of corruption. The first speaker of the House of Representatives in the 4th Republic, Mallam Salisu Buhari was removed as speaker and prosecuted for falsifying his age and educational qualification having been elected into the House of Representative with the false information. He was subsequently convicted and sentenced to six months imprisonment and a fine of N2000.53 Also, Mr. Tafa Balogun a onetime Inspector General of Police was prosecuted for official corruption, abuse of public office, criminal appropriation and stealing of public fund belonging to the Nigeria Police. He was convicted and sentenced to six-months-imprisonment54. In Federal Republic of Nigeria v. Chief Daprieye Alamieyeseigha55, the accused who was the former Governor of Bayelsa state, was charged with abuse of public office, stealing, official corruption and money laundering. He was convicted and sentenced to two years imprisonment. Sometime, in 2008 the Economic Financial Crimes Commission charged the former Governor of Edo State Mr. Lucky Igbinedion with money laundering, 49 Akin-George, ‘Social and Economic Foundation of corruption and other Economic Crimes in ‘Nigeria’, (1991) Vol. 2, Federal Ministry of Justice Law Review Series, 52. 50 [1971] 1 University of Ife Law Report, 2001. 51 Essien et al ‘Corruption in Nigeria: Dimensions and Implication for National Development’, op, cit. 52 Ibid. 53 Ibid. 54 (Unreported Suit No, FHC/ABJ/CR14/2005, judgment delivered on 10/2/2P09 at Federal High Court, Abuja 55 [2005] IQOLR, (Pt 1) 1 Page | 30 AFJCLJ 4 (2019) official corruption and criminal misappropriation. He was found guilty and fined N3.5 million and ordered to forfeit property worth N500 million assessed to have been illegally acquired while serving as Governor of Edo state56. In 2008 also, Senator lyabo Obasanjo-Bello was investigated by EFCC for receiving N410 million ($100,000), stolen from the Ministry of Health. The then Minister of Health and her deputy were tried for stealing over N30,000,000 ($300,000) from the Ministry's unspent funds from the previous year. The Minister was relieved of her duty.57 In the case of Federal Republic of Nigeria v. Chief Olabode George,58 the accused who was a chieftain of the Peoples Democratic Party and Chairman of Nigerian Ports Authority was charged with award of illegal contracts and contracts splitting. He was convicted and the conviction was confirmed by the Court of Appeal and he served a jail term.59 Also, Mrs Cecilia Ibru, a former Managing Director of the defunct Oceanic Bank faced a 25 count charge on various economic and financial crimes before the Federal High Court, Lagos and was subsequently convicted on three counts. She served her prison term in hospital.60 Presently, there are litany of cases in the different courts of the country on economic and financial crimes-which involve high profile politicians in the country, past Governors and Ministers, Judicial Officers-, other public servants and career civil servants. 4. Causes of Economic and Financial Crimes The following are some of the causes of economic and financial crimes: Corrupt Leadership Recent events that are unfolding like the Ikoyigate61 leaves nobody in doubt that most of our leaders, especially politically exposed persons both past and present are corrupt. The madness of acquiring so much wealth and hiding them in odd places like houses, septic tanks, graveyards, etc. make the whole thing nauseating and give the impression that, our-leaders are all kleptomaniacs or have some psychological problem. 56 FRN V. Lucky Igbinedion, (Unreported Suit No. FHC/EN/2008, judgment delivered on 10/2/2009 at Court, Enugu). 57 EconomIc and Financial Crimes Commission, https://en.wikipedia.org/wiki/Economic_and_Financial_Commission, accessed 29/05/17. 58 (Unreported Suit No.ID/71C/2009, judgment delivered on 10/2/2009 at Court Abuja). 59 Ibid 60C. C Alii, Plea Bargaining: Immunity from Punishment, A Paper presented at a Roundtable on Plea Bargaining organised by NIALS on 19April, 20I2 at N1ALS, Supreme Court Complex, Abuja. 61 Is the scandal in respect of 3413 Billion found in a property at Osborne Road, Ikoyi, Lagos. Page | 31 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience Bad Governance Weak leadership, selfish interests of the leaders at the expense of the citizenry, lack of political will combined with other factors like non-implementation of government policies have contributed to hunger, hopelessness, frustration and resort by some of the citizens of the country to economic, and financial crimes. Unemployment/Enlightenment Most of the youths involved in economic and financial crimes are victims of poverty, decay and dislocation in the country. Many are unemployed and uneducated and therefore prone to commit economic and financial crimes. They may also not be fully aware of the ills and implications of economic and financial crimes to their communities and the country as a whole. Human Development Many youths are uneducated as a result of high cost of education especially privately owned schools or as a result of poverty among other reasons. Those who cannot afford formal education are also not provided with skill acquisition. As a result we have many people who dropped out of school without skills and have become social miscreants causing one problem or the other to the society. Poverty It has been established that any place where people live below poverty line is prone to both violent and non-violent crimes. It is a known fact that with bad and corrupt leadership, poor governance and so on, many Nigerians are living below poverty line and what we see today in the society should not be a surprise. Lack of Infrastructure To say that the country lacks .critical infrastructure is an obvious fact. Basic facilities and amenities that are taken for granted in other parts of the world are lacking in the country that has so much wealth and opportunities. This has made some citizens of this country to be frustrated and therefore resolve to provide basic amenities for themselves at all cost. Failed promises by Government Succeeding governments in this country have failed to keep to their electioneering promises to better the lots of the people. This has resulted in disillusionment, distrust and resort to ‘self help.’ Low Remuneration The retention of minimum wage of N418,000.00 in the face of the present economic reality is not only ridiculous but unfortunate. When workers are grossly underpaid, how do you expect them to be Page | 32 AFJCLJ 4 (2019) free from economic and financial crimes? With N418,000.00, you expect them to provide, shelter, food, education, clothing and so on for their families without being involved in one form of economic and financial crimes or the other. That is not realistic. Advancement in Technology Advancement in technology has greatly aided the rise in economic and financial crimes especially with the development of the electronic banking system and the expansion of Internet facilities. This has helped in speedy dissemination of information and swift ways of committing crimes. With the' development of internet facilities, cybercrimes are on, the increase with its attendant consequences to the society. Faulty Socialisation The core agents of socialisation which are: family, peer group, school and religion have failed to impact discipline and mould the people in a manner that will enable them; conform to the norms and values of a decent society. Families are no longer interested in bringing up responsible and disciplined children rather they either overtly or impliedly encourage their children to seek easy and fast ways of getting rich, even where the source .of the wealth is questionable, their families sing their praises. The society is riot left out in all these. The 'society-expect so much from people without caring how they got their wealth. They only honour those with money-not minding the source and mock men with integrity and dignity that are not wealthy. The peer groups are not left as they are influenced negatively by their peers that 'have made it' instead of sanctioning such individuals so as to discourage the so-called get rich fast syndrome; Religious groups are not left out in the decay as they have failed in inculcating -the right morals on their members but rather preach prosperity. The effect of all these is the progressive moral decay, wrong values and ‘get rich quick syndrome’. Tribalism and Nepotism Tribalism and Nepotism which are freely practiced in the country constitute corruption. When some, tribes or individuals are more favoured than others in getting government appointments, contracts, among other government patronages, the disenchanted citizens have no option than taking to criminality to survive. The conducts of the so-called favoured and the disenchanted who resort to crime, put pressure on the resources of the country thereby denying government of needed resources for development. Ineffective Enforcement of extant laws and Regulatory Agencies Nigeria does not lack appropriate laws or regulatory agencies to combat economic and financial crimes. The problems are ineffectiveness and inefficiency in enforcement of extant laws and regulations, political considerations, selective prosecution which some have tagged as 'persecution' Page | 33 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience and unnecessary government interference. The conducts of those charged with enforcement of the laws and regulations have further created bottlenecks in the fight against economic and financial crimes and provided escape routes for the friends of the government and enforcement agencies thereby compounding the economic woes of this country. Bloated government structures Bloated government structures fraudulently put in place by government to favour their associates have been a source of leakages in the system. The wastes and leakages arising there from have denied the country badly needed funds to provide basic infrastructure and welfare for Nigerians. Culture of Impunity and Conflicting interests It is a known fact that there are very powerful people in government who are regarded as untouchables who act with impunity and have openly favoured their friends, relations and fronts. Examples of such culture of impunities and conflict of interests can be seen in the award of contracts without due process, appointments and waivers of tax and import duties. These actions constitute a rape on the economy and negatively affect the development of the country. Those who have discretionary powers have also abused these powers in a manner that hurts the economy and the people of this country in one way or the other. Where a person is given a lot of' discretion to take decisions, it will be rare to see such a person not getting involved in some corrupt practices as 'power corrupts and absolute power corrupts absolutely'. Land Ownership and Control of Resources The vesting of land and natural .resources in. the hands of the government have helped -in impoverishing the citizens of this country. These have also been identified as one of the major reasons for illegal oil bunkering and illegal mining in the country. Government is not developing these resources to create jobs for' its citizenry or allowing private people to develop these resources. Vesting of land in the hands of government is encouraging land racketeering and denying the poor access to land. Environmental Issues Environmental degradation either as result of exploration and exploitation of natural resources or dumping of toxic wastes help in impoverishing the people because such environment cannot sustain farming or fishing thereby rendering people from such an environment to be unemployed and therefore become available tools for any type of crime. If those in authority had insisted that appropriate Impact Assessment should be carried out and efficiently supervise exploration and exploitation activities, it would have saved such lands from being degraded and exposing those who reside in such environment to avoidable hardship and health related problems. Page | 34 AFJCLJ 4 (2019) 5. Effect of Economic and Financial Crimes on Sustainable Development in Nigeria There is no doubt that any act that affects the resources or revenue that accrues to the government will weaken its ability to perform its duties to the people of this country and affect the provision of basic infrastructure. Some of the effects of economic and financial crimes on sustainable development are as follows: Damaged Credibility for Businesses and Institutions One of the major effects of the prevalent of economic and financial crimes in Nigeria is that it destroys the credibility of Nigerian businesses and institutions. The entire world sees Nigerian businessmen as crooks and as such, the international businessmen are not willing to do business with Nigerian businessmen. Even where they carry on business with Nigerian businessmen, the conditions attached to that business will be more stringent than when they are dealing with non-Nigerian businessmen. Nigerian Institutions are also not spared. The impression out there is that nothing good comes from Nigeria and its institutions. A good example is that you can hardly find any International Arbitration Agreement that will have Nigerian Arbitration Law as the applicable law or that use Nigeria as forum for arbitration even where 'the business is substantially performed in Nigeria. Nigeria and indeed Nigerians have over the years continued to bear pattered image abroad on account of the country's corruption rating: Nigerians who travel abroad are subjected to degrading and dehumanising treatment on account of corruption. In Attorney General of Ondo state v Attorney General of the Federation62 Uwaifo JSC made the following remarks: ‘in foreign countries Nigerians are regarded and treated as corrupt people unlike other Nationals', no bank: would allow Nigerians to open a bank account as of right. The Nigerian green passports are separated from other Nationals. While others are allowed to freely, Nigerians are subjected to degrading and inhuman treatment and treated as pariahs' on the ground that they .are Nigerians who had come from the most corrupt country'. Hampers Foreign Direct Investment Nigeria at different times has been rated as one of the most corrupt, countries in the world. The 2004 Report of Transparency International rated Nigeria as the third most corrupt country of the world.63 With this type of report, the impression .being .created in the international community is that Nigeria is a no go area' to invest in. The International businessmen while targeting the Nigeria market will prefer to invest in other African countries like Ghana and South Africa among others. This has adversely affected capital in-flow which had led to steady decline in the country's GDP and it 62 [2002] 9 NWL-R (Pt.772) 22 63 F Adegbie and A Fakile, ‘Economic and Financial Crime in Nigeria: Forensic Accounting as Antidote’ (2012) Vol.6, No.1, British Journal of Arts arid Social Sciences. In 2004, Transparency International carried out a survey which covered 146 countries and focused more on the oil sector as a revenue source: The report of the survey, rated Nigeria as the third most corrupt country, beating Haiti and Bangladesh to the second and. last positions respectively. Page | 35 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience attendant consequences. This situation is not good at all for the overall development of the country as we need foreigners to invest in our country for the general growth of Nigeria in all spheres of development. Disincentive As a result of economic and financial crimes, Nigeria has not been able to provide critical infrastructure like electricity which is very necessary for industrial development. Investors have to- provide electricity for their industries which increase the cost of doing business in Nigeria. This situation, coupled with general insecurity among others has led to countless multinational and trans- national companies to divest and close shops in Nigeria. This has also negatively impacted on the socio-economic development of this nation. Loss of Job/Unemployment As multinational and trans-national companies are divesting from the country as a result of economic and financial crimes, the immediate impact on the country is loss of jobs as their Nigerian staff will automatically be led off. Also, because foreigners are not investing in the country directly, opportunities that would have created jobs are lost and therefore lead to unemployment. The resultant effect of all these is that the citizens of Nigeria are impoverished. Damages Integrity of Financial Institutions Economic and financial crimes affect the integrity of financial institutions as financial markets cannot grow in countries where illegal economic and financial activities are socially accepted, because they depend on high professional, legal and ethical standards. Mere perception that economic and financial crimes are taking place can cause a lot of economic damage. It is therefore important to combat these crimes to protect our financial institutions and other supporting agencies to ensure sustainable development.64 Distorts Financial Markets Economic and financial- crimes -also negatively impact on financial, market by discouraging potential investors from investing in this sector of the economy and also cause investors to pull their resources from such a market so as not to be swindled of their investments. Encourages Violent Crimes Where money is in the hands of a few because of massive looting and the majority of the population barely survive, frustration will set in and if not well managed, it may lead to a sizeable number of the society to take to violent crimes and terrorism as is being witnessed at present in the country. 64 The Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Fact Sheet 5, op. cit. Page | 36 AFJCLJ 4 (2019) Impedes Socio-Economic Development Any action, that could negatively, affect the integrity of the country, foreign investment, job opportunities, lack of basic infrastructure, threat to democracy and distortion of financial institutions could, bring about violent crimes and terrorism that will affect the socio-economic development of the country as no development takes place where there is violence crimes and terrorism. A case in point is the North East of Nigeria and the Niger Delta. Lowers productivity When people notice that you do not need to work to make money but rather engage in one form of- corrupt practices or the other, it will definitely affect productivity as it will discourage creativity, hard work and-send wrong signals to investors. Threat to Democracy The general perception that economic and financial crimes thrive in Nigeria is a threat to democracy as attempts might be made to interrupt civil rule. Past Military regimes claimed that corruption was one of the major reasons for their adventure. The present administration should see the recent rumours of a coup as a wakeup call to reposition the economy, restructure the country and-institutionalize good governance otherwise no meaningful progress will be made in a country where there is mutual suspicion, endemic corruption, high crimes and fear of a possible breakup. No investor will want to invest in a country which future is bleak. Impedes the Rule of Law One of the fall outs of economic and financial crimes is the abuse of the rule of law. Any society that does not obey the rule of law is lawless and can, hardly progress economically and in all fronts. There will be anarchy in the land and such a country will not be reckoned with in the comity of nations. Tempers with the environment and the eco-system As a result of joblessness, poverty and frustration among other reasons, some citizens of this country engage in some form of economic and financial crimes that threaten the environment and the eco- system in order to survive. Some of the financial and economic crimes that threaten the environment and- the eco-system that some of the citizens commit include illegal mining, pipelines and electrical installations vandalization, oil bunkering and connivance with foreigners to dump toxic wastes. The environment and the people are not only at risk but existing infrastructures are destroyed making it difficult to develop the country. Page | 37 OKOLIE: Effects of Economic and Financial Crimes on Sustainable Development: Nigerian Experience Creates inequality As a result of economic and financial crimes, there is a wide margin between 'the haves' and 'the have not' arid this increases inequality in the society. Those who have looted-display their ill-gotten wealth in' an obscene and provocative manner thereby instigating revolt, kidnapping' robbery, general insecurity, low productivity and. slow economic growth as development and investment will be slowed down or Halted. Depreciation/devaluation of currency It is a potent way of devaluing or weakening drastically the currency, of .any country that such crimes are endemic. The present case of the value of Nigerian Currency where those who have looted are ready to exchange bags of Naira for few foreign currencies is a good example. Honest businessmen who want to import cannot access Forex at a value that .will make the goods they want, to import affordable. The effects on the common man and the economy are unimaginable. False Value It creates false values and moral bankruptcy as we are presently witnessing, in the country. Integrity and dignity of labour are sacrificed in a mad quest for wealth. Economic Recession and bankruptcy Part of the reasons why Nigeria went into recession was the mad looting of the economy. The wealth of the nation went into a few hands and such monies were and are still hidden in very /strange places making it impossible for the government to fund-essential services. The banks are also denied access to such funds which would have enabled them create jobs, fund projects, lend to investors, support SMEs and pay taxes to government. This is a serious economic crime, deserving of very-harsh punishment. 6. Conclusion and Recommendations We have in this paper tried to look, at the definitions of economic and financial crimes and also distinguished it from corruption which is a more restrictive word. We have also shown in this discourse that economic and financial crimes are evil wind that blows no body any good' as it affects every facet of the society. It impacts negatively on every member of the society including those who commit the crime. Simply put, everybody in this country is a victim of economic and financial crimes. Some recommendations have been made which, in our opinion, could help in combating this monster. We call on Nigerians, governments at all levels and international community and agencies to collaborate to curtail this monster failing which the country and Nigerians stand the risk of being doomed. So many recommendations had been made in the past by well meaning Nigerians on how to deal with economic and financial 'crimes. These writers are by the following recommendations suggesting further ways of curbing economic and financial crimes in the country in one hand and the whole world in general: Page | 38 AFJCLJ 4 (2019) The citizens of this country must learn how to identify and vote men and women with moral rectitude into elective positions and those elected must ensure that only honest, experienced and God fearing people are appointed to serve. If we get the recruitment process right, such leaders, elected persons and appointees will guarantee good governance, provide basic infrastructure which is presently lacking in the country, create job opportunities for the teaming youths, protect the environment, ensure security in the country, among other services required for the development of the country. Government should as a matter of urgency embark on image laundering to attract foreign investment, halt the tide of divestment in the country and capital flight and stimulate economic growth. Families, schools, peer and religious groups 'should be alive to their responsibilities by inculcating-morals in the youths who are future leaders of this country. There should be a complete re-orientation of the citizens of this nation by these agents of socialization, which the government should key into. Moral instructions in schools among other anti-corruption programmes like change begins with me should be introduced and intensified. There should be effective enforcement of the provisions of laws on economic and financial crimes and extant laws on economic and financial crimes should be amended to include capital punishment. These writers believe that if the gains of these, crimes are more than the punishment, people will continue to commit these crimes but if the punishment is severe, it will discourage people from committing such crimes. The government should also enact a law on forensic accounting practice in Nigeria to further provide tool for the effective fight against economic and financial crimes in the country. Government should be more transparent in whatever it is doing to give confidence to the people. Government must also ensure that it keeps to its campaign, promises to retain credibility. Bureaucratic bottlenecks and inefficient administrative structures should also be removed or drastically reduced in order to eliminate culture of impunity and abuse of discretionary powers. So much money which would have been utilized in the provision of basic infrastructure is wasted. We recommend the abolition of either the House of Representatives or the Senate as the retention of both which carry out the same functions is too costly for our democracy arid level of development. We recall that the present government wanted to reduce the .number of ministries and ministers. Unfortunately, it lost the will and courage to do so as we still have many Ministers of States. Section 147(3) of the Constitution of the Federal Republic of Nigeria as amended provided for at least one Minister each from the 36 States of the Federation, If the Constitution cannot be amended to reduce the number of Ministers, government should as a matter of urgency keep to one Minister each from the 36 States in line with the provision of the Constitution. The Civil Service and public servants should be trimmed down to minimise wastes and avenues for corruption. The money saved should be used in the provision of essential infrastructure and welfare of the citizenry. Government should keep pace with advancement in technology so as to check negative practices in our system by creating or strengthening existing agencies to monitor and adopt advancement in technology that will respond to emerging trends so as to reduce or completely eliminate cybercrimes and protect the country's institutions. Page | 39 KAYITANA: Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each THREE AVENUES FOR PROSECUTING INTERNATIONAL CRIMES: EXPLORING THE ADVANTAGES, DISADVANTAGES AND LIMITATIONS OF EACH* Abstract There are three avenues for prosecuting international crimes. First, there are the courts of the State where the crimes are committed. Secondly, there are international criminal tribunals, such as the International Criminal Court (ICC) or the International Criminal Tribunal for Rwanda (ICTR). Finally, there are the domestic courts of foreign States, acting under the principles of extraterritorial or universal jurisdiction. This paper explores the advantages and disadvantages and limitations of each of these forums. Keywords: International Crimes, Three Avenues for Prosecution, Advantages, Disadvantages, 1. Introduction The primary methods of judicial enforcement of the provisions of international criminal law are the domestic courts of the state where the crime occurred.1 To this end, international law imposes obligations on states to prosecute those who have committed international crimes within their territory.2 However, this method of enforcement of human rights may fail because international crimes are often committed by state agents as part of a state policy,3 and so governments do not routinely prosecute their own officials engaged in such action.4 As Cassese5 correctly observes: Today, more so than in the past, it is state officials, and in particular senior officials, that commit international crimes. Most of the time they do not perpetrate crimes directly. They order, plan, instigate, organize, aid and abet, or culpably tolerate or acquiesce or willingly or negligently fail to prevent or punish international crimes. All of this has led to what has been described as a ‘culture of impunity’ which contributes to a climate in which human rights violations persist and are not deterred.6 In order to counter this culture of * Evode KAYITANA, LLB, PGD, LLM, LLD, Lecturer at the University of Rwanda. E-mail: [email protected] 1D. Akande and S. Shah, ‘Immunities of State Officials, International Crimes and Foreign Domestic Courts’ 2011 European Journal of International Law 816: ‘The primary methods of judicial enforcement envisaged by international law are the domestic courts of the state where the human rights violation or international crime occurred and the courts of the state responsible for that violation’. 2 Akande and Shah op.cit, at 816. 3Cassese International Criminal Law 2nd ed (Oxford University Press, 2008) at 307. 4Akande and Shah, op.cit, at 816. 5Cassese, op.cit, at 307. 6Akande and Shah, op.cit, at 816. Page | 40 AFJCLJ 4 (2019) impunity, there are two other possible fora where judicial enforcement of international criminal law norms may take place. First, such enforcement may take place in international courts, such as the ICC. However, enforcement of international criminal law by such courts is limited, inter alia, by the fact that an international court such as the ICC may not have the necessary means (in terms of financial and human resources) to prosecute perpetrators of the large-scale crimes.7 For this reason, enforcement of international criminal law must resort to the second set of fora: the domestic courts of other states.8 The jurisdiction of the courts of other (foreign) States can be based on either of the following doctrines: extra-territorial jurisdiction or universal jurisdiction. This paper explores the advantages as well as the advantages and limitations of each of these forums. 2. 1. Prosecuting International Crimes before the Courts of the Territorial State As state above, the primary methods of judicial enforcement of the provisions of international criminal law are the domestic courts of the state where the crime occurred.9 Generally speaking, when international crimes are prosecuted before the courts of the State where they occurred, trials are conducted in accordance with the domestic laws of that State. No rules of international law are applicable in this case. However, a few rules of international law may come into play. Firstly, in order to prevent impunity for serious violations of human rights, international law (international human rights law, not international criminal law) obligates the territorial State to conduct the trials in question and to impose appropriate punishments. Secondly, the territorial State may rely on the principle of aut dedere aut judicare (a principle of international criminal law) to coerce other States to extradite to it the persons who are suspected of international crimes committed on its territory who are present on their territories. 2.2. Prosecution of International Crimes before International Criminal Tribunals General principles governing international criminal trials There do not yet exist international general rules on international criminal proceedings. Each international criminal tribunal has had its own ‘rules of procedure and evidence’ (RPE). However, it is possible to extract from the statutes of current and previous international criminal tribunals some general principles governing international criminal trials. These are:10 7The difference between what the international community and local populations expect from international justice institutions, and what these institutions can actually deliver with the resources they are given is often referred to in the legal literature as the ‘impunity gap.’ 8Akande and Shah, op.cit, at 816. 9 See also Akande and Shah, op.cit, at 816. 10 Cassese, op.cit, at 378. Page | 41 KAYITANA: Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each (i) The requirement that the accused be tried by an independent and impartial court;11 (ii) The presumption of innocence;12 (iii) The principle of fair and expeditious (speedy) trial;13 and (iv) The right of the accused to be present during trial (except under very strict conditions).14 11 Various means to ensure independence and impartiality of judges exist. These include how judges are appointed (by the UN General Assembly, for example-ICTY and ICTR or Assembly of States Parties-ICC Statute). They also include a duty to refrain from engaging in activities that might jeopardize their independence or affect confidence in their independence (see for instance art 40(1) of the ICC Statute). Judges also enjoy immunities from States’ jurisdiction in order to shield them from undue interference by States (see for example, art 48 Rome Statute). Other relevant mechanisms are those related to the disqualification of judges (art 41 Rome Statute). 12 See art 66 Rome Statute. The presumption of innocence specifically entails that: (i).The person charged with a crime must be treated as being innocent until proved guilty; (ii) The burden of proof, that the accused is guilty of the crimes with which he is charged, is on the prosecutor (no reversal of the burden of proof is admissible: art 67(1)(i)); The accused has the right to remain silent (and no adverse inference can be drawn from this silence). (iii) In order to find the accused guilty of the crimes charged, the court must be convinced of his guilty ‘beyond reasonable doubt’. (iv) The judgments of international criminal courts must provide the legal reasons for the courts’ findings (motivation). 13 The principle is articulated into three main standards: equality of arms, publicity of proceedings; and expeditiousness of proceedings. (i) Equality or arms: The principle implies that the accused may not be put at a serious procedural disadvantage with respect to the prosecutor. In light of the notion of equality of arms, the accused has a number of rights such as: To know full particulars of the charges against him; Within the shortest delay, he has the right to examine the evidence gathered by the prosecution; To be assisted by a counsel (paid by the court for indigent defendants); To call witnesses (including the right to obtain attendance of witnesses by asking the court to subpoena them as well as the taking of testimony by videoconference, whenever witnesses refuse to attend court proceedings at the Court’s seat) and; To cross- examine any witness called by the prosecution. (ii) Publicity of proceedings: This ensures that the rights of the accused are not infringed and that the court proceedings are conducted impartially. Nevertheless, the conduct of in camera hearings is provided for whenever this is required by the need to protect the victims, witnesses or the accused himself (art 68 Statute). (iii) Expeditiousness of proceedings: The right to have one’s trial begin and conclude without undue delay is important in international criminal law than in domestic legal systems. This is so because, very often, international criminal tribunals do not release suspects on bail. Frequently, the accused is in prison from his arrest until conviction or acquittal. This feature of international trials renders expeditiousness of proceedings all the more necessary. Other reasons that justify the requirement of expeditious trials are, for example, the fear that defense witnesses may die or other exculpatory evidence may disappear, increasing the chances that the accused, although innocent, will be found guilty. 14 Article 63 of the Rome Statute prohibits trials in absentia except in the narrow circumstances. It states: ‘(1) The accused shall be present during the trial. (2) If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly Page | 42 AFJCLJ 4 (2019) These principles may play a crucial role. They dictate the manner in which criminal proceedings must unfold, and by the same token confer fundamental rights that their beneficiaries may invoke and vindicate before the court, if need be by appealing decisions infringing such rights.15 The principles may also serve as a useful tool for the proper construction of procedural rules and regulations, whenever the latter are not clear or lend themselves to conflicting interpretations.16 Benefits of international tribunals Certain benefits have been postulated, not of international criminal law in general, but of international trials. One of the most powerful of these is that international tribunals, with international judges, operating at a distance from the events themselves, are not as open to political manipulation or influence from actors in those societies, or unconscious bias on the part of the judges.17 It is also sometimes claimed that international judges are the best judges of international crimes.18 There are two possible bases for these claims, the first being that international judges and tribunals are representative of the relevant community affected by international crimes, which is the community of all humanity. The second basis is more prosaic (not convincing): that international judges are more familiar with the relevant law. It is true that domestic judges are less likely to be fully aware of the intricacies of international criminal law than some of their international counterparts. However, it is also true that not all judges who have sat on international criminal tribunals go to them professing expertise in international criminal law.19 Furthermore, it has been suggested that an international criminal court would provide for uniformity in the process and law for punishing international crimes. There is some truth in this. However, much of the credit for the harmonization of international criminal law norms must be given now to the Rome Statute of the ICC.20 Finally, since international criminal courts are either created by the Security Council under Chapter VII of the UN Charter or by treaty (the ICC), such courts have more means (legal and financial) to apprehend criminals and try them than domestic courts. Regarding legal means, States can be pressurised by the Security Council to arrest and surrender suspects to international courts and, more importantly, no immunity can be required’. Article 17(4)(d) of the Statute of the Special Court for Sierra Leone also provides that the accused shall have the right ‘to be tried in his or her presence . . ..’ Rule 60 of the Special Court’s Rules of Procedure and Evidence further states that ‘an accused may not be tried in his absence, unless: (i) the accused has made his initial appearance, has been afforded the right to appear at his own trial, but refuses to do so; or (ii) the accused, having made his initial appearance, is at large and refuses to appear in court.’ 15 Cassese, op.cit, at 379. 16 Cassese, op.cit, at 379. 17 See R. Cryer et al, An Introduction to International Criminal Law and Procedure 2nd ed (Cambridge University Press 2010), at 35. 18 Ibidem. 19 Ibidem. 20 Ibidem. Page | 43 KAYITANA: Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each claimed before an international criminal tribunal. With respect to financial means international courts enjoy great budgets that a domestic court can rarely, if at all, have. Critiques of international criminal tribunals International criminal tribunals and the ‘Nuremberg Syndrome’: is international criminal law a ‘victors’ justice’? Scholars and other critics often lament that the pursuit of justice in the post-conflict period suffers from a ‘Nuremberg Syndrome’: the tendency to try the vanquished while the victors remain sheltered from judicial scrutiny.21 In regard to the conflict in the former Yugoslavia, for example, Cassese notes:22 ‘International criminal tribunals suffer from the Nuremberg syndrome, the tendency to try the vanquished while the victors remain sheltered from judicial scrutiny. It is a fact that neither the accusations widely made against NATO airmen attacking Serbia in the 1999 war […] have ever been verified or examined through judicial inquiry’. Accusations of ‘victor’s justice’ can contribute to a sense of unfairness, and rekindle old feelings of animosity and hatred.23 This syndrome can also seriously affect the credibility of international criminal tribunals and hence diminish their effectiveness. In particular, the effectiveness of the ICC will largely depend on the way it selects cases in order to secure the cooperation of the largest number of states. Other critiques of international tribunals There have been a number of claims before the ICTY, ICTR and the Special Court for Sierra Leone (SCSL) that judges are biased.24 Also, it is an often-made critique that international tribunals are too distant from their primary audience, the victimized community.25 This means that they are inaccessible to many of the victims and seen as responding more to an international audience than the purported beneficiaries. There is also a lack of ‘ownership’ of international tribunals at the local level. Given that such tribunals tend to focus on those most responsible, it is also the case that most victims will not see their immediate oppressors punished.26 This gives succour to those who argue that the creation of the tribunals was more a sop to the conscience of those who failed to prevent or bring an end to the crimes now being punished.27 In situations of large-scale commission of crimes, however, it is difficult to imagine any international criminal tribunal that could fulfil the task of ensuring that all 21C. L. Jessica, Human Rights (Peace Operations Training Institute 2012), at 284. 22A. Cassese, ‘Clemency Versus Retribution in Post-Conflict Situations’ 2007 Columbia Journal of Transnational Law, at 9. 23Jessica, op.cit, at 284. 24 See Cryer et al, op.cit, at 35. 25 Ibidem. 26 Idem, at 36. 27 Ibidem. Page | 44 AFJCLJ 4 (2019) criminals of international crimes were tried before it.28 International tribunals are also expensive. For example, the ICTR has cost around $2 billion for only 61 persons convicted of crimes for which they were tried. Finally, international criminal courts, and international criminal law generally, have been accused of ‘double standards’. It has been lamented that ‘international prosecutions are instituted mainly against citizens of states that are weak actors in the international arena or fail to enjoy the support of powerful nations’.29 Irrelevance of immunities before international criminal tribunals Under international law, the official position of a state agent, including an incumbent Head of State at the time is not a bar to his prosecution by an international court. This international law rule was unambiguously reaffirmed by the ICJ in the Arrest Warrant case30 as follows: An incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides that, in Article 27, paragraph 2, ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. This rule was also captured in article 27 of the Rome Statute which provides that: 1. [...] 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. 28 Idem, at 36-37. 29 M.Damaska, ’What Is the Point of International Criminal Justice’, 2008 (83 )Chicago Kent Law Review (2008), at 361; C. C. Jalloh, ‘Regionalizing International Criminal Law?’ 2009 (9) International Criminal Law Review, p. 445. 30Para 61. Page | 45 KAYITANA: Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each It is thus clear that both immunity ratione materiae and immunity ratione personae are irrelevant before an international criminal tribunal. Immunities will be discussed in details later in this lesson when dealing with prosecutions of international crimes before the courts of foreign States. Relationships between international and domestic courts: exclusive jurisdiction vs concurrent jurisdiction; primacy vs complementarity Exclusive jurisdiction vs concurrent jurisdiction Notion The relationship between an international criminal tribunal and national tribunals may take two main forms: exclusive or concurrent jurisdiction.31 When it is exclusive, States will not have jurisdiction over crimes that fall under the international court’s jurisdiction and, in that case, there is no collision of jurisdictions.32 This was the case with the Special Panels for Serious Crimes (SPSC)33 in East Timor whose statutes provided as follows: ‘[…] there shall be established panels of judges (hereinafter: ‘panels’) within the District Court in Dili with exclusive jurisdiction to deal with serious criminal offences.’34 On the other hand, when the international jurisdiction is concurrent with national jurisdictions, the international court and national courts of States have jurisdiction over the same crimes. For instance, the Statute of the ICTR provided that: ‘[T]he International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens for such violations committed in the territory of the neighbouring States, between 1 January 1994 and 31 December 1994’.35 31 For other possible forms of relationships between international and national courts, see J. Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Martinus Nijhoff Publishers 2008), at 5. 32 Idem. 33 Regulation no 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (6 June 2000). 34 Section 1(1) Regulation no 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (6 June 2000). 35 Art 8(1) ICTR Statute. See also art 9(1) of the ICTY Statute: ‘The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991’. Page | 46 AFJCLJ 4 (2019) Division of labour between international criminal tribunals and national courts in case of concurrent jurisdiction When an international court has concurrent jurisdiction with national courts, the division of labour may follow one of two models. One is that adopted in Nuremberg (the Nuremberg Scheme). The other is the one adopted in the Rome Statute (The ICC scheme). Under the Nuremberg scheme, an international court is entrusted with the task of dealing with the major leaders accused of international crimes, whereas national courts are called upon to handle the crimes of minor culprits. This is what happened in Nuremberg. After the Second World War, the IMT was entrusted with the task of trying the ‘major war criminals’. German courts were requested to adjudicate upon crimes committed by ordinary Germans against other Germans, while national courts of the Allies pronounced on crimes perpetrated by ordinary Germans against foreign nationals.36 This model was also adopted by the ICTY and ICTR.37 A different division of labour is provided for in the Statute of the ICC. Under its complementarity regime, all crimes under the jurisdiction of the ICC may be brought before national courts, whatever the magnitude of the crime or the status, rank, or importance of the accused.38 The Nuremberg model may have some merit over the ICC model. In case of genocide, crimes against humanity and war crimes committed by the central authorities or with their approval or acquiescence, it may be difficult for a national court to prosecute the alleged planner or perpetrators, unless there is a change in government.39 Thus, in situations such as this, the ICC must make sure that its complementarity regime is not exploited by domestic leaders to delay its action. Primacy vs Complementarity In the case of concurrent jurisdiction between an international criminal tribunal and national courts, an allocation mechanism will be needed for determining which court shall have priority in a given case.40 In this regard, the international jurisdiction may be ‘primary’ or ‘complementary’. When it is primary, it has priority over national jurisdictions, and can request deferral even when a State is diligently undertaking an impartial and genuine investigation or prosecution.41 Primacy thus 36 Cassese, op.cit, at 344. 37Idem, at 345. 38Ibidem. It is important to note, however, that the ICC does not deal with minor criminals. For a case to be admissible before it, the case must be ‘of sufficient gravity’ to justify action by the Court (art 17(1)(d) of the Rome Statute). 39Ibidem. 40Stigen op.cit, at 5. 41Waynecaurt-Steele T, ‘The contribution of the Statute of the International Criminal Court to the enforcement of international law in the light of the experiences of the ICTY’ 2002 South African Yearbook of International Law 2002 South African Yearbook of International Law, at 8; P. G.S. Ofei Ofei, The International Criminal Court and the Principle of Complementarity: A Comparison of the Situation in the Page | 47 KAYITANA: Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each compromises States’ sovereign prerogatives by requiring them to defer to an international tribunal.42 For instance, the ICTR statute provides that: [T]he International Tribunal for Rwanda shall have primacy over the national courts of all States. At any stage of the procedure, the International Tribunal for Rwanda may formally request national courts to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal for Rwanda. 43 Under a primacy relationship, international jurisdiction and domestic jurisdiction are presented as competing forums of justice.44 This thinking is well captured in the ICTY’s famous Appeals Chamber decision on jurisdiction in the Tadic case, where the Chamber stated that when an international tribunal (such as the ICTY) is created, ‘it must be endowed with primacy over national courts’, otherwise: human nature being what it is, there would be a perennial danger of international crimes being characterised as ‘ordinary crimes’, or proceedings being ‘designed to shield the accused’, or cases not being diligently prosecuted. If not effectively countered by the principle of primacy, any one of those stratagems might be used to defeat the very purpose of the creation of an international criminal jurisdiction, to the benefit of the very people whom it has been designed to prosecute.45 Thus, in the view of the ICTY Appeals Chamber, the reason for endowing an international tribunal with primacy lies in the scepticism about the very readiness of national courts genuinely and effectively to exercise their jurisdiction over persons responsible for serious violations of human rights. In other words, the universal objective of putting an end to impunity for the most serious crimes can only be effectively pursued by endowing an international criminal tribunal with primacy.46 Democratic Republic of the Congo and the Situation in Darfur (LLM Dissertation University of Pretoria 2008), at 7; Stigen, op.cit, at 5 and M. M. Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Martinus Nijhoff Publishers 2008), at 882. 42B. S. Brown, ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’ 1998 Yale Journal of International Law , at 386. 43 Art 8(2) ICTR Statute. See also art 9(2) of the ICTY Statute: ‘The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal’. 44C. Stahn, ‘Complementarity: a Tale of Two Notions’ 2008 Criminal Law Forum, at 95. 45 Prosecutor v Dusko Tadic aka ‘Dule’ Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction ICTY IT-94-1 (2 Octobre 1995) para 58. 46F. Gioia, ‘State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The Principle of Complementarity in the International Criminal Court’ 2006 Leiden Journal of International Law, at 1100. Page | 48 AFJCLJ 4 (2019) This reasoning contrasts with the one underlying a system of complementarity between an international criminal jurisdiction and national jurisdictions. Under this model, an international tribunal may take over a case only when the national jurisdiction is not exercised or when the exercise does not meet a certain standard defined in the instrument creating such international tribunal.47 Thus, complementarity entails a conditional national primacy in the sense that investigations and prosecutions at the national level have to meet certain requirements in order to pre-empt international jurisdiction.48 In 1998, the ICC was established with concurrent and complementary international jurisdiction. This point will be elaborated upon in the last lesson of this training manual. 2.3. Prosecuting International Crimes before the Domestic Courts of Foreign States The question of jurisdiction For the domestic courts of other states to serve as fora for the enforcement of international criminal law, it must first be established whether such a state has jurisdiction, as a matter of international law, to subject the issue to adjudication in its courts. When the crimes are being prosecuted in the country where they were committed no jurisdictional problem arises as a matter of international law. As for foreign States, jurisdiction can be asserted on either ‘extra-territorial’ or ‘universal’ basis. These forms of jurisdiction will be discussed later in this manual. The question of immunities: an operative obstacle or not? One of the fundamental principles on which international law and international relations rest is that of State sovereignty. The Charter of the United Nations49 reaffirms this principle, stating that the Organization is based on the principle of the ‘sovereign equality’ of all its Members.50 One of the consequences of this principle is the respect due by a State to the officials of another State. One way this respect is symbolised is by granting to State representatives, especially high-ranking officials such as heads of States and ministers of foreign affairs, immunity from the courts of foreign States.51 A question that arises here is whether, or not, immunities still apply when, in accordance with the principle of universal jurisdiction, a State official is accused of international crimes before the courts of foreign States? This issue will be dealt with in the lesson which deals with immunities in detail. The question of amnesties: an operative obstacle or not? The term amnesty refers to an act of forgiveness that a sovereign State grants to individuals who have committed criminal acts.52 From a sovereignty perspective, it may be argued that a State should be allowed to decide freely how to deal with crimes committed on its territory, including by granting 47 Stigen, op.cit, at 5 and Zeidy op.cit, at 870. 48 Stigen, op.cit, at 5. 49 Charter of the United Nations (1945). 50 Article 2(1) UN Charter. 51D. Akande, ‘International Law Immunities and the International Criminal Court’ 2004 American Journal of International Law, at 407. 52N.N. Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (Ashgate 2011), at 73. Page | 49 KAYITANA: Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each amnesties.53 When an amnesty law is passed over crimes such as genocide, crimes against humanity and war crimes over which all States have universal jurisdiction, however, sovereignties may ‘overlap’.54 Two or more States may want to act, one by granting amnesty, the other(s) by exercising universal jurisdiction over the perpetrators of the crimes.55 A legal question thus arises: are foreign States bound by an amnesty law passed by another State for crimes over which they have universal jurisdiction? In other words, does the doctrine of State sovereignty bar the exercise of universal jurisdiction when the State where the crimes were committed has decided to grant amnesty to the perpetrators of those crimes?56 The answer to the above question stands to be no. The legal basis on which foreign courts can rely to disregard foreign amnesty laws in case of international crimes is that since international crimes are crimes of international concern, and that the interest to suppress them extends beyond the State directly involved,57 a national amnesty law should not prevent other jurisdictions, foreign or international, from dispensing justice in the event that the alleged offender leaves the territory of the State where he benefits from amnesty.58 In other words, implicit in the principle of universal jurisdiction is the principle that a State cannot deprive another State of its jurisdiction to prosecute and punish the offender by granting amnesty.59 As the SCSL once said: ‘a state has no right to bring into oblivion and forgetfulness a crime, such as a crime against international law, which other States are entitled to keep alive and remember.’60 Indeed, if a State would purport to 53Stigen op.cit, at 419 and O’Shea Amnesty for Crime in International Law and Practice (Kluwer Law International 2002), at 96. 54Cryer et al, op.cit, at 43. 55R. Boed, ‘The Effect of a Domestic Amnesty on the Ability on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations’ 2000 Cornell International Law Journal, at 325. 56See also G. Meintjes & J. E. Mendez, ‘Reconciling Amnesties with Universal Jurisdiction’ 2000 International Law Forum du Droit International, at 76: ‘What deference does the international community owe in such cases to the domestic arrangements made by the state in reckoning with the serious human rights violations and international crimes of its recent past?’ 57C. Enache-Brown & A. Fried, ‘Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law’ 1998 McGill Law Journal, at 621 and K. C. Randall, ‘Universal Jurisdiction under International Law’ 1988 Texas Law Review, at 815. 58 O’Shea, op.cit, at 307; M. Pensky ‘Amnesty on Trial: impunity, accountability, and the norms of international law’ 2008 Ethics and Global Politics, at 14; J. Dugard, International Law: A South African Perspective 4th ed (Juta 2011), at 699 and A. A. Lamprecht, International law in the Post-1994 South African Constitutions: Terminology and Application (LLM thesis UNISA 2001), at 339. 59 Stigen, op.cit, at 419; W. Lee, ‘International Crimes and Universal Jurisdiction’ in L. May & Z. Hoskins (eds) International Criminal Law and Philosophy (Cambirdge University Press 2010), at 439-440; Meintjes and Mindez, op.cit, at 85 and D. Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ 2003 European Journal of International Law, at 503- 504; 60 The Prosecutor v Kallon and Kamara Decision on Challenge to Jurisdiction: Lomé Accord Amnesty Case Nos SCSL-2004-15-AR72(E); SCSL-2004-16-AR72(E) (13 March 2004) para 67. See also para 88: ‘[…] whatever effect the amnesty granted in the Lome Agreement may have on a prosecution for such crimes as are contained in Articles 2 to 4 in the national courts of Sierra Leone, it is ineffective in removing Page | 50 AFJCLJ 4 (2019) promulgate an amnesty law with extra-territorial effect, this would rather constitute an infringement of the sovereign jurisdiction of the foreign States which have an interest in prosecuting the amnestied offenders.61 This argument was relied on by the French Cour de Cassation in the 2002 case of Ely Ould Dah.62 The case concerned allegations of torture committed in a Mauritanian Prison back in 1990 and 1991 by Captain Ould Dah against a number of black Mauritanians who were suspected of conspiracy to overthrow the Arab-dominated government. Before the court, Mr Ould Dah argued that the action was not admissible in French courts because his actions had been the subject of an amnesty law in 1993 in his home State, where the alleged crimes had taken place. The French Cour de Cassation, in October 2002, rejected this argument, holding that: ‘the exercise of universal jurisdiction by a French court entails the application of French law, even in the instances of a foreign amnesty law’.63 Another case that may be cited in support of the argument that an amnesty law passed by one State does not affect the right of other States to exercise their jurisdiction over an international crime, is the 1998 case of Pinochet in England. When General Pinochet was arrested in England in 1998 pursuant to an arrest warrant issued by a Spanish judge, neither Pinochet’s lawyers nor the Government of Chile invoked the Chilean amnesty law before the English courts; which may be regarded as suggesting that they believed the Chilean amnesty could have no effect in Spain or England.64 The question of the non bis in idem principle (double jeopardy): an international law obstacle, or not? The principle that a person should not be prosecuted more than once for the same criminal conduct is prevalent among many legal systems.65 This principle is often referred to as the ‘rule against double the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes’. 61 O’Shea, op.cit, 308. 62 Ely Ould Dah case Cour de Cassation Bulletin Criminel n° 195 (23 October 2002). Accessible at http://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007070167&dateTexte [10 April 2014]. 63 Bulletin criminel n° 195 725. Translation by P.T.K. Rakate, The Duty to Prosecute and the Status of Amnesties Granted for Gross and Systematic Human Rights Violations in International Law: Towards a Balanced Approach Model (LLD-thesis UNISA 2004), at 163. The original paragraph reads as follows: ‘Qu'en effet, l'exercice par une juridiction française de la compétence universelle emporte la compétence de la loi française, même en présence d'une loi étrangère portant amnistie’’. 64 Stigen, op.cit, at 424; O’Shea, op.cit, at 312; K. Henrard, ‘The Viability of National Amnesties in view of the Increasing Recognition of Individual Criminal Responsibility at International Law’ 1999 Michigan State University Detroit College of Law Journal of International Law, at 627 and J. Dugard, ‘Possible Conflicts with Truth Commissions’ in Cassese A, Gaeta P and Jones JR The Rome Statute of the International Criminal Court: A Commentary Vol I (Oxford University Press), at 699. 65G. Conway, ‘Ne Bis in Idem in International Law’ 2003 International Criminal Law Review, at 217; L. Finlay, ‘Does the International Criminal Court Protect Against Double jeopardy: An Analysis of Article 20 of the Rome Statute’ 2009 University of Colorado Davis Journal of International Law & Policy, at 224; G. P. Kemp, S. S. Terblanche & M. M. Watney, Criminal Procedure Casebook (Juta 2010), at 184; C. Van Den Wyngaert & G. Stessens ‘The International Non Bis In Idem Principle: Resolving Some of the Page | 51 KAYITANA: Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each jeopardy’66 and expressed in the maxims ne bis in idem,67 or nemo debet bis vexari pro eadem causa.68 The principle serves to prevent the trial of a case where the defendant has already been acquitted (autrefois acquit) or convicted (autrefois convict) of the same crime.69 However, while the rule against double jeopardy undoubtedly provides security for the individual who has been tried, a difficulty may arise from the society's point of view whether a person should be allowed to rely on that rule and escape justice when, for example, subsequent to his acquittal, it is later discovered that the accused secured the acquittal by abusing the processes of justice such as by corrupting or intimidating judges or witnesses.70 The problem becomes even more pronounced in the context of international criminal law. International crimes are often committed by States’ officials or in complicity with them.71 There is therefore an increased likelihood that the proceedings at the national level against those responsible for those crimes, if at all conducted, would not be conducted in good faith72 and, consequently, the outcome would be nothing more than a ‘sham’.73 A strict adherence to Unanswered Questions’ 1999 International and Comparative Law Quarterly, at 706 and G. P. Fletcher, ‘Against Universal Jurisdiction’ 2003 Journal of International Criminal Justice, at 580. See also D. Spinellis, Global Report ‘The Ne Bis In Idem Principle in ‘Global’ Instruments’ 2002 Revue Internationale de Droit Pénal, at 1150: ‘The ne bis in idem principle is almost universally included in the domestic laws of the States […]’ See Further L. E. Carter, ‘The Principle of Complementarity and the International Criminal Court: The Role of Ne Bis in Idem’ 2010 Santa Clara Journal of International Law, at 170: ‘The concept is worldwide - all or almost all nations have a ne bis in idem provision as do each of the international criminal tribunals’. 66G. Coffey, ‘Evaluating the Common Law Principle against Retrials’ 2007 Dublin University Law Journal, at 26. See also See also Pearce v The Queen (1998) HCA 57 (10 September 1998) para 54. Accessed at https://jade.barnet.com.au/Jade.html#!article=68081 [15 April 2018]. 67Conway, op.cit, 217. 68The Law Reform Commission of Hong Kong ‘Report: Double Jeopardy’ (2012), at 6. The ne bis in idem principle is said to be the ‘most ancient of all procedural guarantees’. 69Conway, op.cit, at 217; The Law Commission (UK) ‘Double Jeopardy and Prosecution Appeals: Report on two references under section 3(1)(e) of the Law Commissions Act 1965’ (Law Com no 267 2001), at 5 and The Law Reform Commission of Hong Kong ‘Double Jeopardy’, op.cit, at 7. See also Stigen, op.cit, at 207 and Finlay op.cit, at 223. 70The Law Reform Commission of Hong Kong ‘Double Jeopardy’, op.cit, at 72-77. 71Cassese, op.cit, at 307. 72A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ 1999 European Journal of International Law, at 158: ‘[c]omplementarity might lend itself to abuse. It might amount to a shield used by states to thwart international justice. This might happen with regard to those crimes (genocide, crimes against humanity) which are normally perpetrated with the help and assistance, or the connivance or acquiescence, of national authorities. In these cases, state authorities may pretend to investigate and try crimes, and may even conduct proceedings, but only for the purpose of actually protecting the allegedly responsible persons’. 73Carter op.cit, at 194; Finlay, op.cit, at 235; Spinellis, op.cit, 1159; and C. Van den Wyngaert & T. Ongena, ‘Ne bis in idem Principle, including the issue of Amnesty’ in A. Cassese, P. Gaeta & J. R. Jones, The Rome Statute of the International Criminal Court: A Commentary Vol I (Oxford University Press 2002), at 724. Page | 52 AFJCLJ 4 (2019) the ne bis in idem rule thus carries with it a considerable danger of having to respect the outcomes of sham trials in ‘corrupt and illegitimate regimes’.74 That seems not to be in line with the international community’s determination ‘to put an end to impunity for the perpetrators of these crimes’ and ‘to contribute to the prevention of such crimes’.75 The Rome Statute of the International Criminal Court addresses this concern. It provides that the ICC may retry a case if the proceedings at the national level were undertaken ‘for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court’,76 or were conducted in a manner which, in the circumstances, was ‘inconsistent with an intent to bring the person concerned to justice’.77 But, the problem is not necessarily resolved. In accordance with the complementarity regime of the Rome Statute, it is the States Parties, not the ICC, that have the primary responsibility to prosecute international crimes.78 The ICC is only a court of last resort established to complement national systems. In fact, with its limited human and financial resources, the ICC cannot correct all the sham trials that may take place around the world. The courts of States (other than the one that has conducted the sham trials) would thus play a crucial role in correcting such sham trials in order to fight impunity for the most serious crimes against international community. That, however, raises a legal question: are foreign courts allowed to retry cases which have been already tried in another State if it is established that, such cases were not tried in good faith and, for that reason, would be admissible for retrial before the ICC? For an international law rule that prohibits such retrials to exist, it must be proved that the ne bis in idem rule contained in the numerous national legislations is not just a rule designed to uphold the rights of individuals but also a rule required as a matter of an obligation owed to foreign States. Without such proof, the ne bis in idem cannot be considered as a rule of customary international law. Despite the near universal prevalence of a ne bis in idem rule in national laws,79 however, the majority of opinion in legal literature denies the status of ne bis in idem as a rule of general international law.80 74The Law Commission (UK) ‘Double Jeopardy’, op.cit, at 77. 75Para 5, Preamble to the Rome Statute. 76Art 20(3)(a) Rome Statute. 77Art 20(3)(b) Rome Statute. 78Carter, op.cit, at 167. 79 Bassiouni says that the protection against double jeopardy can be found in ‘over fifty national constitutions’. M. C. Bassiouni, ‘Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions’ Duke Journal of Comparative and International Law, at 289. See also A. J. Colangelo, ‘Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory’ 2009 Washington University Law Review, at 815: ‘Without doubt, most states’ domestic laws contain some type of double jeopardy protection, whether through constitutional guarantee or by statutory or common law rule’. 80 W. B. Bockel, The Ne Bis in Idem Principle in EU Law: A Conceptual and Jurisprudential Analysis (PHD-thesis Leiden University 2009), at 2. See also Spinellis, op.cit, at 1150: ‘An international rule barring or limiting the prosecution in a certain State of a person for an offence for which he has been already convicted or acquitted finally in another State is not yet recognized or accepted in the legislation of most States’. See further Conway, op.cit, at 229; Cryer et al, op.cit, at 80; Van Den Wyngaert and Stessens, op.cit, at 781 and Colangelo, op.cit, at 812-815. Page | 53 KAYITANA: Three Avenues for Prosecuting International Crimes: Exploring the Advantages, Disadvantages and Limitations of Each Spinellis81 argues that: ‘[T]he extent to which the res judicata in one State should be recognized and have a positive effect in another State depends on the full discretion of the legislature in that State’. This view was supported by the ILC in a report published in 1996, where it held that there is no obligation under international law, for a State which has a particular interest in ensuring the effective prosecution and punishment of an offender, to recognise a criminal judgment handed down by a foreign court.82 In fact, scholars take the view that far from requiring States to recognize criminal judgments handed down by foreign courts, the principle of ‘sovereign equality’83 of States would rather seem to support the contrary argument that ‘one State’s courts cannot bind the courts of another State’.84 Applying the ne bis in idem principle between States would require those States to recognise foreign judicial decisions as an obstacle to their own criminal jurisdiction, and that this would constitute an infringement on the sovereignty of the State which wants to conduct the subsequent proceedings.85 That would amount to ‘an abdication of sovereignty’, by the other State.86 4. Conclusion This paper has discussed the three avenues for prosecuting perpetrators of international crimes. First, there are the courts of the territorial State, the State i.e. where the crimes are committed. It was argued, however, that this avenue is very unreliable because international crimes are often committed by States or on behalf of current leaders and, therefore, the perpetrators are not always punished. It was found that the second avenue, international crimes, has many advantages but also limitations such as the lack of sufficient resources, both financial, material and human, to conduct the trials of thousands of international criminals wherever crimes are committed across the globe. Finally, it was found that the third avenue, the domestic courts of foreign States, although may be reliable and efficient, it also has limitations such as those relating to immunities of senior State officials which under present international law continue to apply even when a State official is accused of serious crimes under international. 81 Spinellis, op.cit, at 1150. 82 ILC ‘Report of the International Law Commission on its forty-eight session’, at 37. 83 Art 2(1) UN Charter. 84 Cryer et al, op.cit, at 80. 85 Bockel, op.cit, 40. 86 Van Den Wyngaert and Stessens, op.cit, at 782. See also Van den Wyngaert and Ongena, op.cit, 708. See further Conway, op.cit, 218: ‘Although many principles of international law limit national sovereignty, ne bis in idem operates in the context of criminal jurisdiction, an area of sovereignty that states tend to be particularly keen to protect against any encroachment’. Page | 54 AFJCLJ 4 (2019) A SURVEY OF THE CRIMINAL JURISPRUDENCE FOR COMBATING FOOD ADULTERATION IN NIGERIA AND INDIA* Abstract Food adulteration is a global problem and is a growing phenomenon. A successful attack on the food supply chain could result in significant morbidity and mortality, economic and trade consequences, a strain on public health systems and political instability. Different countries of the world have made laws for checkmating the monster of food adulteration. These countries include Nigeria and India. This paper attempts a comparative appraisal of the legal framework for combating food adulteration in Nigeria and India. The paper found that the inclusion of raw and unprocessed foods in the legal definition of food in India affords India a better platform for combating food adulteration. The paper also found that India has an extensive institutional framework for the implementation of laws geared towards the combating of food adulteration. The paper further found that both countries did not make any provision in their laws for combating adulteration of food sold and bought on the internet. Similarly, there was no provision for traceability of food items sold in the market in the laws of both countries. Although, Nigeria has some lessons to draw from the Indian legal framework for combating food adulteration, like Nigeria however, India is also missing out some of the new perspectives on effective legal regime for combating food adulteration. Keywords: Food, Adulteration, Contamination, Processed Food, Legal Framework, Unwholesome Products 1. Conceptual Clarifications Food The Food and Drugs Act defined ‘food’ to include any article manufactured, processed, packaged, sold or advertised for use as food or drink for human consumption, chewing gum, or any ingredient that may be mixed with food for any purpose whatever, and excludes Live animals, birds of fish; articles or substance used as drugs.1 This same definition was reiterated in the Food Drug and Related Products (Registration Etc.) Act.2 This purport that food in Nigeria remains whatever is sold or advertised; in order words it shall be in the course of a commercial transaction. The said definition also covers ingredients like sweeteners and additives that may be mixed with food. Food Safety Standards Act of India defined food to mean: *Gladys Uzoamaka EZE, LLB, LLM, PhD, Reader, Department of International Law & Jurisprudence Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria 1 Section 21 of the Food and Drugs Act Cap F32 LFN 2004 2 Section 13 of the Food and Drugs Act Cap F33 LFN 2004 Page | 55 EZE: A Survey of the Criminal Jurisprudence for Combating Food Adulteration in Nigeria and India any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances. Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality.3 This latter definition removed the hitherto confusion as to whether the notion of food is confined to processed as against unprocessed foods.4 The notion of food is in relation to whatever is a subject matter of human consumption. It may be processed, partially processed or unprocessed. This is more elaborate and commendable. The Indian Act also covered the GM foods, which are not envisaged and captured by the Nigeria Act. Adulteration The word adulterate was defined as the act of debasing a commercial commodity with the object of imitating or counterfeiting a pure or genuine commodity with the object of imitating or counterfeiting a pure or genuine commodity or substituting an inferior article for a superior one in order to gain an illegitimate profit.5 The Adulteration of Product Act, 1958 provided as follows: ‘adulterate’ means to falsify, deteriorate or increase the apparent bulk or weight or conceal the inferior quality of produce by the combination, admixture or addition therewith or thereto of some foreign, superfluous or inferior substances, matter or thing whether deleterious or not, or by the use of artificial means and includes abstraction from produce, part of it so as to injuriously affect its nature, substance or quality, or soaking or manipulating it so as to increase its bulk or weight. 6 In view of the foregoing definitions, adulteration includes the addition of some extraneous substances, the abstraction of some compositional ingredients, failure to comply with the prescribed standard or 3 The Food Safety Standards Act of India 2006 section 3(j); See also Section 2 of Adulteration Act 1954 4 See European Directive Regulation (EC) no 178/2002 amended by (EU)No.652/2014 5 J. S. James, Stroud’s Judicial Dictionary of Words and Phrases,4th ed. (London: Sweet & Maxwell Ltd; 1973) p.87 6 Section 12 of The Adulteration of Product Act, United Kingdom(UK)1958 Page | 56 AFJCLJ 4 (2019) the substitution of inferior ingredients for superior ones. It is not necessary that the adulterated product should be injurious to health for an offence to be committed. Adulteration implies mixing of something inferior or spurious to any commodity which reduces its purity or makes it harmful for use. Any material which is or could be employed for the making the food unsafe or sub-standard or misbranded or containing extraneous matter 7 Food Adulteration The Indian Prevention of Food Adulteration Act8 provides that: an article of food shall be deemed to be adulterated: (a) If the article sold by a vendor is not of the nature, substance or quality, demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality, which it purports or is, represented to be; (b) If the article contains any other substance which affect, or if the article is so processed as to affect injuriously the nature, substance or quality thereof; (c) If any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature substance or quality thereof; (d) If any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof. (e) If the article has been prepared, packed or kept under in sanitary conditions whereby it has become contaminated or injurious to health; (f) If the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption; (g) If the article is obtained from a diseased animal; (h) If the article contains any poisonous or other ingredient which renders it injurious to health: (i) If the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health; 4[(j) If any coloring matter, other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed coloring matter which is present in the article are not within the prescribed limits of variability;] (k) If the article contains any prohibited preservative or permitted preservative in excess of’ the prescribed limits; 7 Section 3 of Food Safety Standards Act 2006 8 1954 Page | 57 EZE: A Survey of the Criminal Jurisprudence for Combating Food Adulteration in Nigeria and India 5[(l) If’ the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which renders it injurious to health; (m) If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being a primary food has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.9 An article is not deemed to be adulterated where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, solely due to natural causes and beyond the control of human agency. Also, where two or more articles of primary food are mixed together and the resultant article of food is stored, sold or distributed under a name, which denotes the ingredients thereof; and is not injurious to health, such an article is not deemed to be adulterated. The phrase `food adulteration’ can be simply defined- as an act of intentional debasing the quality of food offered for sale either by the admixture or substitution of inferior substances or by the removal of some valuable ingredient. It also can be defined as the addition or mixing of interior harmful, substandard, useless or unnecessary substances to foods. This spoils the nature and quality of food items and is considered food adulteration. A substance added to a food-item to reduce its quality in order to increase its quantity is called as an adulterant the addition of adulterants is called adulteration. Any food item may be considered as adulterated if its nature and quality are not up to the standard. Regrettably, the Nigerian Laws did not attempt any definition of ‘adulterated food’. The word ‘adulterated’ was only used in relation to drug. 9 Instead of ‘adulteration’, the Nigerian Act used the term adulteration. The meaning of adulteration varies from country to country on the basis of municipal law. If a food exceeds tolerances and regulatory limits of the country, it will be considered adulterated. It is to be noted that the basic contention of the term `food adulteration’ is fully relevant and inter-related with the terms/factors like `food safety’ and `food security’. Unwholesome Processed Food This was defined to mean any food product which: 9 Section 2 of the Act, The Prevention of Food Adulteration Act, 1954. 9 See section 13 of the Counterfeit Drugs and Unwholesome Processed Foods Act Cap C34 Laws of the Federation of Nigeria 2004 as amended. Page | 58 AFJCLJ 4 (2019) (a)consists in whole or in part, of any filthy, putrid or decomposed substance; or (b)has been prepared, packaged or stored under insanitary conditions where it may have been contaminated with filth or whereby it may have been rendered injurious to health; or ©is packed in a container composed in whole or in part of any injurious or deleterious substance which may render the content injurious to health; or (d)bears or contains for the purposes of colouring only a colour other than one which is prescribed: or (e) contains any harmful or toxic substance which may render it injurious to health or has been mixed with some other substance so as to reduce its quality or strength.10 Misbranded Food This is alien to Nigerian food law. An article of food is ‘misbranded’ (A) if it is purported, or is represented to be, or is being; (i) offered or promoted for sale with false, misleading or deceptive claims either; (a) upon the label of the package, or (b)through advertisement, or (ii)sold by a name which belongs to another article of food; or (iii)offered or promoted for sale under thev name of a fictitious individual or company as the manufacturer or producer OF THE article as borne on the package or container the article or the label on such package : or (B) if the article is sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer bearing his name and address but- (i)the article is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labeled so as to indicate its true character; or (ii)the package containing the article or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular, or if the package is otherwise deceptive with respect ton its contents; or (iii)the article is offered for sale as the product of any place or country which is false; or (C)if the article contained in the package – (i)contains any artificial flavouring , colouring or chemical preservative and the package is without a declaratory label stating that fact or is not labeled in accordance with the requirements of this Act or regulations made thereunder or is in contravention thereof; or 10Counterfeit and Unwholesome Processed Food(Miscellaneous Provision) Act Cap C34 Laws of the Federation of Nigeria 2004. Page | 59 EZE: A Survey of the Criminal Jurisprudence for Combating Food Adulteration in Nigeria and India (ii)is offered for sale for special dietary uses, unless its label bears such information as may be specified by regulation, concerning its vitamins, minerals or other dietary properties in order sufficiently to inform its purchaser as to its value for such use ; or (iii)is not conspicuously or correctly stated on the outside thereof within the limits of variability laid down under this Act.11 Food Fraud Food fraud is committed when food is illegally placed on the market with the intention of deceiving the customer, usually for financial gain. More simply, it is the act of defrauding food buyers for economic gain. Food fraud involves criminal activity that can include mislabelling, substitution, counterfeiting, misbranding, dilution and adulteration. It is noteworthy that food adulteration is one aspect of food fraud. Food fraud therefore commonly encompasses a wide range of deliberate fraudulent acts. Food fraud is a collective term used to encompass the deliberate and intentional substitution, addition, tampering, or misrepresentation of food, food ingredients, or food packaging; or false or misleading statements made about a product, for economic gain. Food Crime Food crime involves any criminal conduct that affects the safety or authenticity of food. Food crime is punishable under the criminal law of various countries. Punishment varies from one country to the other. Food crime is a subset of food adulteration. This is because there are aspects of food adulteration that may involve only civil wrongs as against criminal liability. 2. Rationale for Combating Food Adulteration The greatest challenge facing the Nigerian food consumer of today is in the area of fake and adulterated foods. Fake and adulterated foods have debilitating effect on the health of the consumers of food today. Adulteration of food may happen in any of the layers or steps in the process of reaching the food from the farm or production to the fork of the consumers. Food adulteration leads to many health problems from curable to incurable disorders.12 It is a major cause of death, disability and so on. 13The statistics of consequences of food adulteration has risen from eight percent in 2008-2009, to twenty percent in 2012-2013. 14 Adulteration in food also decreases our moral and social values. A 11The India Food Safety Standards Act section 3(z)(f) 12 A number of diseases including cancer, convulsion and miscarriage, respiratory problem, disorder of some organs of the body; asthma, sore throat, larynx constriction, bronchitis, skin infection, allergic reaction, diarrhea, haematuria, circulatory failure, numbness, dizziness, kidney failure, stomach, cancer, nervous disorder and other diseases; 13 Daily Hunt Food Adulteration…Slow Death https://m.dailyhunt.in 26/07/18 14 (Saumya Sinha IPLEADERS : ‘Laws for the Prevention of Food Adulteration in India’ available at blog.ipleaders accessed on 17/11/18. 57According to the records of health and family welfare ministry Page | 60 AFJCLJ 4 (2019) large number of people and companies are engaged in this kind of black business of adulterated food production, manufacture, wholesale and retailing. The entire chain involved many people in a criminal act which requires a tremendous government effort with a proper infrastructure to combat this monster. Governments of different countries of the world have enacted laws to stem the scourge. 3. Legal Framework for the Prevention of Food Adulteration in Nigeria The legal framework for combating food adulteration in Nigeria involves extant laws, and institutions. It can be observed that the laws for combating food adulteration in Nigeria are not contained in a single enactment. It does appear that only one institution to wit; the National Agency for Food and Drug Administration Control (NAFDAC) is responsible for combating food adulteration in Nigeria. However, by virtue of the fact that food adulteration is a crime, the duty of combating food adulteration extends to other institutions concerned with the prevention prosecution. of crime. National Agency for Food and Drug Administration and Control Act 1993 This Act was enacted for the purposes of establishing the National Agency for Food and Drug Administration and Control with the functions, among others, to regulate and control the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water and chemicals. 15 The Agency is empowered to regulate the administration of foods, drugs and other regulated products in Nigeria.16Regulated products have been defined under the Act to include food, drug, medical devices, cosmetics and bottled water. The Act did not however define ‘food’ but defined only drug and cosmetics. The implication of this omission is that what constitutes food for the operation of the Act is at the discretion of the Agency. Accordingly, the Agency does not oversee the combating of adulteration of raw and unprocessed foods. Like its predecessors, the focus of the institutional oversight of the agency is on drugs, cosmetics and processed foods. The maximum punishment for the contravention of the provisions of the Act is as prescribed under Regulations made pursuant to the Act. Where no punishment is prescribed under such regulations, a maximum punishment of fifty thousand naira or imprisonment for a term not exceeding one year is imposable by the court.17 The Prepackaged Food Regulation that directly affects food adulteration did not make any significant provision for sanctions. However, it prohibits sale of unlabeled pre-packaged food, and deceptive trade marks. The Food Products Registration Regulation imposes a penalty of fifty thousand naira for any contravention of its provision.18 Food Products (Advertisement Regulations also imposes a penalty of fifty thousand naira for any 15 Long title of this Act. 16 Section 5. 17 Section 25(3). 18 Section 7 Page | 61 EZE: A Survey of the Criminal Jurisprudence for Combating Food Adulteration in Nigeria and India contravention of its provision. It also provides for the prohibition of the offending person from carrying on the advertisement of food products in addition to the fine.19 Counterfeit and Unwholesome Processed Foods Act This Act did not proffer a definition of the term, ‘adulterated food’. It however defined ‘unwholesome processed food ‘to mean any food product which: (a) consists in whole or in part, of any filthy, putrid or decomposed substance; or (b)has been prepared, packaged or stored under insanitary conditions where it may have been contaminated with filth or whereby it may have been rendered injurious to health; or ©is packed in a container composed in whole or in part of any injurious or deleterious substance which may render the content injurious to health; or (d)bears or contains for the purposes of colouring only a colour other than one which is prescribed: or (e) contains any harmful or toxic substance which may render it injurious to health or has been mixed with some other substance so as to reduce its quality or strength. 20 It is obvious that this Act in its definition of ‘unwholesome processed food contemplated the adulteration of food as its basis for declaring a food item ‘unwholesome’. The long title of the Act however, in the use of the word ‘processed food’ appeared to have excluded raw and unprocessed food from the ambit of its definition of food adulteration. This is the major lacuna in this Act. For this Act to serve its purpose as a combative legislature against food adulteration, the word ‘processed’ must be deleted from the title of the Act. This is because adulteration of food in present day Nigeria extends to raw and unprocessed foods. The maximum punishment stipulated under this Act is a fine not exceeding the sum of N500,000 or imprisonment for a term of not less than five years or more than fifteen years or to both such fine and imprisonment. 21 Food and Drugs Act 22 This Act as the name suggests aims at the regulation of the quality of food products that are manufactured in Nigeria. The Food and Drugs Act defined ‘food’ to include any article manufactured, processed, packaged, sold or advertised for use as food or drink for human consumption, chewing gum, or any ingredient that may be mixed with food for any purpose whatever, and excludes Live animals, birds of fish; articles or substance used as drugs.23This definition should be interpreted to 19 Section 19.Also Food Grad (Table or Cooking) Salt Regulations. (1993}No. 15. S1. 14 of 1996 20 Section 12 21 Section 3(1)(a) 22 Cap F32 Laws of the Federation of Nigeria 2004 23 Section 21 Page | 62 AFJCLJ 4 (2019) include all kinds of food. This will not however be the situation if the words ‘sold or advertised’ are read to be dependent on the preceding words of ‘manufactured’, ‘processed’ or ‘packaged’. The latter interpretation will confine the meaning of food used in the Act to processed foods only, The Act provides that no person shall sell, import, manufacture or store any article of food that is adulterated.24 Regrettably, this Act did not define the meaning of adulteration in relation to food.25Other words closely related to ‘adulterate’ like harmful, poisonous. food which is unfit for human consumption and the phrase ‘unsanitary conditions’ were defined in relation to food, by the Act.26 These invariably refer to adulterated food. The maximum punishment stipulated under this Act a fine of not less than fifty thousand naira or imprisonment for a term not exceeding two years or to both such fine and imprisonment. Foods Drugs and Related Products (Registration, Etc) Act This Act provides for the An Act to regulate the manufacture, importation, exportation, advertisement, sale or distribution of processed food, drugs and related products in Nigeria. It is apposite to mention that food product registration is a veritable tool in combating adulterated food. This is because registration divulges the minutest detail of a food which adulteration will cover in a bid to deceive. Unfortunately, the Act specifically limited its application to food processing industries as distinct from raw foods and other unprocessed foods. Also, it did not define ‘food’ nor ‘food adulteration’. The Act prescribes a maximum punishment of a term not exceeding two years or a fine not exceeding fifty naira for any contravention of the provision of the Act.27 Where the contravention was at the instance of a corporate body, it shall be a fine not exceeding N100, 000.28 Standard Organization of Nigeria (SON) Act This Act was made to establish the Standards Organization of Nigeria to standardize methods and products in Nigerian industries and to provide for other matters connected thereto.29 The Act established the Standard Organization of Nigeria Act (SON) as a body corporate.30 The Organization was vested with the responsibility of preparing standards for products and processes and for ensuring compliance with the Federal Governments Policies on standards and quality with regards to both locally manufactured and imported goods in Nigeria.31 The maximum punishment prescribed under this Act is a term of imprisonment not exceeding one hundred thousand naira or to imprisonment for a 24 Section 1 (2) 25 Section 21 of the Food and Drugs Act Cap F32 Laws of Federation of Nigeria 2004 as amended. 26 ibid 27 Section 6.(1)(a) 28 Section 6(1)(b). 29 The Long Title to the Act 30 Section 1(1) of the Act 31 Section 5 of the Act. Page | 63 EZE: A Survey of the Criminal Jurisprudence for Combating Food Adulteration in Nigeria and India term not exceeding five years.32Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other official of the body corporate, or any person purporting to act in any such capacity, he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished.33 Consumer Protection Council Act The Act established the Consumer Protection Council as a body corporate, capable of suing and being sued in its corporate name.34 In the exercise of the said function the Council shall be guided by considerations that are consistent with the public health and safety standards in relation to products in the Nigerian markets. 36It shall be the duty of the manufacturer or distributor of a product, on becoming aware after such a product has been placed on the market, of any unforeseen hazard arising from the use of such product, to notify immediately the general public of such risk or danger and cause to be withdrawn from the market such product. 37The maximum punishment prescribed under the Act is a term of imprisonment not less than five years or to a fine of N= 50,000 or to imprisonment of five years or to both such fine and imprisonment.38 Criminal Code and Penal Code The Criminal Code39 and the Penal Code40 contain enabling provisions which in their application tend to combat food adulteration in Nigeria. These provisions are aimed at death or bodily injury so as to protect the right to life of persons. Under the Criminal Code, offences in relation to food adulteration constitute offences against public health.41It is discernible from the foregoing that the Criminal Code does not take into account whether a food substance is beneficial to the body nutritionally, but whether its administration or consumption is harmful to the individual or the public at large. Under the Code, it is immaterial whether the food in question is nutritive or beneficial to health, in so far as its administration or consumption is not prejudicial to health and is not likely to cause bodily injury or endanger life or to be a threat to public health. The ultimate objective under the Criminal Code, it seems, is the protection of life and health of the people. 32 Section 15 33 Section 20 34 Section 1(1) 36 Section 3(a-f). 37 Section 9(1) 38 Sections 10, 11 and 12 of the Act 39 Section 243 of the Criminal Code, Cap.C38 LFN 1990 40 Cap P3, LFN 2004 41 Section 243(2) ibid Page | 64 AFJCLJ 4 (2019) 4. A Survey of Legal Framework for Combating Food Adulteration in India The legal framework for combating food adulteration in India as in the case of Nigeria is not contained in one single enactment. They are scattered in different laws. However, one unique feature of the Indian legal framework is that it sets out to combat food adulteration directly using some specific laws. Prevention of Food Adulteration (PFA) Act 1954 This is the first most striking legislation directed at combating food adulteration in India.42The Act embodies six other subsidiary legislations, namely; Food Produce Order,43Meat Food Produce Order,44 the Vegetable Oils Packaging Production(Control) Order,45the Edible Oils Packaging (Production)Order46The Solvent Extracted Oil (The Oiled Meal and Edible Flour Control Order,47and Milk and Milk Produce Oder.49 This Act has been repealed and replaced by the Food Safety Standards Act.50 This repeal may not be unconnected with changing needs.51 Food Safety Standards Act 2006 The Food Safety Standards Act and the Rules and Regulations made thereunder, consolidated laws relating to food in India.52The Act was established to bring uniformity and a single reference point for all matters relating to food safety and food standards. The Act made a shift from the multi- departmental and multi-level control to a consolidated system of food control system. The Act is enforced by two statutory authorities- Food Safety and Standards Authority of India (FSSAI) at the centre and State Food Safety Authority (SFSA) at the State level. 53 This was because adulteration of foodstuff was included in the concurrent list in the Constitution of India. The primary objective of the food authority is to lay down science based standards54 for articles of food and to regulate their manufacture, storage, distribution, sale and import of food in order to ensure availability of safe and 42 The Prevention of Food Adulteration (PFA)1954. 43 1955 44 1973. 45 1947 46 1998 47 1967 49 1992 50 2006 51 2006 52 Section 4 53 Section 29 54 Section 43 of the Act gives out the responsibility to the Food Authority to notify food laboratories and research institutions accredited by the National Accreditation Board for Testing and Calibration Laboratories or any other accreditation agency for the analysis of food samples. Page | 65 EZE: A Survey of the Criminal Jurisprudence for Combating Food Adulteration in Nigeria and India wholesome food for human consumption.55 The Act made elaborate provisions for the regulation of imported food.56 It clearly prohibits the importation of unsafe, misbranded, substandard food or food containing extraneous matter in contravention of any other provision of the Act or the rules and regulations made thereunder.57 It is indeed paradoxical that the Indian legislatures are only bothered about imports foods products whereas no singular provision was made for preventing adulteration of food for export. The Act made provisions for the general principles of food safety to be followed by the various authorities while implementing the provisions of the Act.58These provisions aimed at achieving an appropriate level of protection of human life and health and the protection of consumers’ interests.59Food businesses are required to register and get licensee from the Food Standard Authority.60The Act also made provisions with respect to the adjudication of the matters related to food safety and standards.62 Food Safety Appellate Tribunal hears appeals from the decisions of the Adjudicating officer.63 The Act prescribed a time limitation of one year for any court to take cognizance of an offence under this Act.64 The said time limit for the prosecution runs from the date of the commission of the offence. 65However, the Committee of Safety may for reason to be recorded in writing extend this time to three years.66 Interestingly, the Act imposes/ special responsibility for food safety on the manufacturers, packers, wholesalers, distributors and sellers.67 The maximum penalty stipulated under the Act is ten lakhs and a term of imprisonment not less than seven years but which may extend to imprisonment for life.68Apart from penalty and punishment, the person contravening the provisions of the Act may also be held liable to pay compensation to the victim or the legal representative of the victim if such contravention has led to death or injury.69 Indian Penal Code Apart from these laws and regulations, there are provisions under the Indian Penal Code which deal with food adulteration. Chapter XIV of the Indian Code lays down provisions dealing with ‘offences 55 Section 16 56 Section 25 57 ibid 58 Section 18 of the FSSA 59 Section 31, Food Safety and Standards Act, 2006. 60[4] Section 18, Food Safety and Standards Act, 2006. 61FSSAI annual reports. 62 section 68 63 section 70. 64 Section 77 65 ibid. 66 proviso to sect 77 67 Section 27 68 Section59 69 Section 65 Page | 66 AFJCLJ 4 (2019) affecting the public health, safety, convenience, decency, and morals’. It provides that adulteration or sale of such food or drink is an offence punishable with an imprisonment which may extend to six months or fine or both.70However, some states like Uttar Pradesh and West Bengal considered it insufficient punishment and made amendments in the provision with respect to punishment in the year 1970. The state amendment has made the offence punishable with imprisonment for life along with the liability of fine. 71 5. Comparing Nigerian and Indian Positions First, there is no specific legislation dealing with food adulteration in Nigeria such as the Indian Food Standards Safety Act. Second, there is a time limitation of between one to three years for prosecuting food adulteration misconduct or crimes. In Nigeria, the general principle is that time does not run against the State. At first glance, this may appear to portend greater latitude for prosecuting food adulteration offenders in Nigeria. However, this is not truly the case because there are no specific laws targeted against food adulteration in Nigeria. Furthermore, the Indian legal framework provides for compensation to victims of food adulteration. This is not the case with Nigeria where compensation of victims of crimes are not in contemplation in extant laws. The Indian laws also make allowance for the federating units to extend the punishment for food adulteration up to life imprisonment. It is obvious that this posture will serve better deterrent purposes to the Indian criminal justice system. Conversely, the Nigerian legal framework provides for a maximum of five-year imprisonment for food adulteration offences. This will certainly reduce the deterrent value of punishment in the Nigerian laws. Again, there are no provisions for apprehending and prosecuting those selling adulterated food products on the internet in both the Nigerian and Indian criminal law jurisprudence. There are also no provisions for the tracing of of the origin of adulterated food sold in the food markets of both countries. Finally, the enforcement mechanism against food adulteration related offences are more efficient in their multi-sectored and multi-institutional perspectives. The Indian Act also imposed special responsibilities for food safety on the manufacturers, packers, wholesalers, distributors and sellers.72This is commendable as it extends responsibility for food safety to all possible food handlers in the food chain other than the manufacturers of the said foods. The Indian Act has a unique provision for the compensation of the dependants of a deceased where the unsafe food has resulted to loss of life. Such dependents are entitled to an award of compensation within thirty days of the occurrence of the losss.73 There is no such provision under extant Nigeria food laws. The maximum penalty stipulated under the food laws of Nigeria is of little or no deterrent effect. The punishment for food adulteration in Nigeria is five hundred thousand naira fine or imprisonment for a term of not less than five years. The Indian Act on the other hand provides for a fine of ten lakhs and a term of imprisonment of not less than seven years but which may be extended to imprisonment for 70 Sections 272 and 273 71 (Book –Rathan lal and Dheeraj lal The Indian Penal code 34th Edition 2014); Jatin Gandhi jan 18 2018 hundustan hindustantimes.com. FSSAI Proposes Life imp rs 10 lakh fine for food adulterators m. economnioctimes.com.June 26 /06/18 72 Section 27 73 Section 65 Page | 67 EZE: A Survey of the Criminal Jurisprudence for Combating Food Adulteration in Nigeria and India life.74The Nigerian criminal code and the Indian criminal code criminalized the act of food adulteration. Chapter XIV of the Indian Code lays down provisions dealing with ‘offences affecting the public health, safety, convenience, decency, and morals’. Adulteration or sale of such food or drink is an offence punishable with an imprisonment, which may extend to six months or fine or both.75 However, some states like Uttar Pradesh and West Bengal considered it insufficient punishment and made amendments in the provision with respect to punishment in the year 1970. The state amendment has made the offence punishable with imprisonment for life along with the liability of fine.76 6. Conclusion and Recommendations Nigeria and India are both commonwealth countries. However, India has come a long way ahead of Nigeria in their legal framework for the combating of food adulteration. This may be due to a fact that the Nigerian constitution did not include the right to save food in its justice able sections. In India, the right to safe food is a fundamental constitutional right. The legal framework for food adulteration in India is therefore designed to reflect its constitutional posture. This is not the case in Nigeria because none of the food laws gave a concise meaning of the term ‘food adulteration’. The operative laws of a country determine what constitutes ‘food adulteration and food’. Therefore, the extant laws should in any possible amendment proffer elaborate definition of food as well as adulteration. Such definition should also capture emerging trends in food trade, safety and production. This will extend more protection for food consumers and prevent food adulteration. These laws should clearly outline implementation strategies and the laws must provide for a better enforcement regime so that all instances of non-compliance can be easily identified and action taken promptly by the proper authority. Control of food adulteration is a multi-sectored responsibility. Many ministries and agencies are involved. The roles and responsibilities of the concerned ministries and agencies must be clear and should cover the whole food chain from farm-to-table. There should be prompt and overall coordination for food safety and food control at the national level. There should be clear delineation of roles and duties amongst the various food agencies. Conflict of roles exists amongst NAFDAC, SON and CPC in Nigeria with respect to issues like standardization certification. Nigeria should borrow a leaf from India in adopting a more proactive legal framework for the prevention and control of food adulteration in view of the danger posed to human health by food contamination and adulteration. For example, stiffer punishments should be meted out to food adulterators in Nigeria as is the case with India. It is however noteworthy that some adulterated food that find their way into the Nigeria food market are traced to India. In view of this, Nigeria should collaborate with India through bilateral treaties to ensure that food exported from India to Nigeria meet the Indian food safety requirements. 74 Section59 75 Section 272 and 273, 76 Rathan lal and Dheeraj lal op. cit. Page | 68 AFJCLJ 4 (2019) A CRITIQUE OF THE NIGERIAN ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015 AND CHALLENGES IN THE IMPLEMENTATION OF THE ACT* Abstract The passage into law of the Administration of Criminal Justice Act 2015, by the Good luck Jonathan Administration is viewed as a major breakthrough in the criminal justice regime in Nigeria. The law which repeals the Criminal Procedure Act1 which applied in the South and the Criminal Procedure (Northern States) Act2 and the Administration of Justice Commission Act3 which applied in the North, further merges the main provisions of the CPA, the Criminal Procedure (Northern States) Act and CPC into one principal Federal Enactment, which applies to all Federal Courts across the Federation as well as all courts of the Federal Capital Territory Abuja4, but it does not apply to a Court Martial5. To this end, the ACJA is to be uniformly applied throughout the nation where law enforcement agencies created by the Constitution of the Federal Republic of Nigeria 1999 (as amended) or other Federal legislation are empowered to operate. The provisions of the Act reveal that there is a conscious effort to reduce delays in the criminal process and to ensure the rights of the defendants. The Act goes a long way to put in place progressive measures which if properly implemented will greatly enhance the criminal justice system in Nigeria and enable enforcement and rehabilitation agencies effectively fight crime and rehabilitate offenders respectively. However, certain loopholes in the provisions of the Act such as failure of ACJA to make specific provisions relating to women and children as found in some International instruments, failure to make provision for the Criminal Procedure Law to be applicable in courts that are not federal courts having repealed and merged Criminal Procedure Act and Code and optional nature of electronic recording of confessional statements etc. as well as challenges that may affect the due implementation of the Act have been observed. Some of the challenges are: Funding, Institutional challenges as well as reluctance to depart from entrenched systems inter alia. These will be discussed in this paper and some Recommendations will be made. Some of the recommendations include: Demonstration of political will by the government by providing adequate funding for implementation of the Act and .readiness of all stakeholders to implement the Act inter alia. *Rose Ohiama UGBE, LLB, BL, LLM, PhD, Associate Professor and Formerly Ag Dean, Faculty of Law, University of Calabar; *Anne Uruegi AGI, LLB, BL, LLM, PhD Candidate, Lecturer, Faculty of Law, University of Calabar; and *Justine Bekehnabeshe UGBE, LLB, BL, LLM Candidate, Faculty of Law, University of Ibadan. 1 Cap C41 LFN 2004 2 Cap C42 LFN 2004 3 Cap A3 LFN 2004 4 ACJA 2015, s493 5 ibid s 2(2) Page | 69 UGBE, AGI & UGBE: A Critique of the Nigerian Administration of Criminal Justice Act 2015 and Challenges in the Implementation of the Act Keywords: Administration of Criminal Justice Act 2015, Challenges, Critique, Implementation, Nigeria 1. Introduction A careful reading and study of the Act which is made up of 495 sections divided into 49 parts, reveals several lofty provisions with regards to administration of criminal justice in Nigeria, which if implemented will transform the criminal justice system in Nigeria. However, a further careful reading of some of these provisions reveals certain loopholes in the Act which may render the Act ineffective. There also exist certain challenges which may impede the successful implementation of the provisions of the Act. This paper seeks to discuss some of such loopholes and challenges that may be a clog in the wheel of implementation of the Act. Loopholes Identified. After a careful perusal of the Act, the following are some of the loopholes identified: 2. Loopholes and Shortcomings in the Act Effect of Merging of the CPA and CPC into ACJA: The Administration of Criminal Justice Act 2015, in Section 493 and in its preamble, repealed the Criminal Procedure Act (CPA) and the Criminal Procedure (Northern States) Act (referred to as the CPC) which were the enactments principally regulating the criminal justice sector in Nigeria. It further stated that it provides for the administration of criminal justice in the courts of the Federal Capital Territory and other Federal Courts in Nigeria6. With this, the ACJA replaced the two Acts with itself thus making it the main Federal Act to uniformly apply in all Federal Courts (which include all the superior courts of record i.e. the Federal High Courts, the Court of Appeal and the Supreme Court) across the entire Federation. From the foregoing, two questions are relevant namely: First, with its abrogation of the CPA and CPC, what then happens to Area Courts, Upper Area Courts and Magistrate Courts as the Federal Government does not regulate these Courts, they not being Federal Courts? The second relates to the first. Which Criminal Procedure Law will apply there? These questions are pertinent in the light of the fact that apart from the FCT where Magistrate Courts are regulated by the Federal Government, Magistrate Courts were enacted by the Magistrates’ Courts’ Laws of the various states of the Federation, Area Courts by the Area Courts’ Laws of the various Northern states while the High Courts of the various States were specifically created by the Constitution of the Federal Republic of Nigeria 1999. Criminal Procedure in all these Courts was governed by the now repealed CPA and CPC. Having repealed these Acts, which Criminal Procedure 6 ACJA 2015, s2(1) Page | 70 AFJCLJ 4 (2019) law would these Courts then apply? The Act does not address this question in view of the fact that ACJA applies only to Federal Courts7. No Provision for Failure to Pay Compensation Section 319 of the Act further states that a Court may, within the proceedings or while passing judgment, order the convict to pay a sum of money as compensation to any person injured by the offence. This provision8 which will apply whether or not any other punishment or fine is imposed is to protect the rights of the victims of the crime. The Court is also empowered to order a convict to compensate a bonafide purchaser for value without notice of any defect in the title in any property in respect of which an offence has been committed, and he has been compelled to give it up9. The Court may also order a convict to pay a sum of money to defray expenses incurred on medical treatment of a victim injured by the convict in connection with the offence.10 While this provision is applauded as it spares deep thought for the victim of a crime and ensures that they too get justice, one is however constrained to ask how the Court will ensure that the convict pays the said compensation fee? What happens where there is failure or inability to pay compensation aforesaid? Will he be detained until he pays up? If yes, would this then not defeat one main purpose of the ACJA, to wit: the decongestion of prisons and ensuring that convicts are not detained in prison longer than necessary? However, detention of such an individual is mere speculation as it is not provided for in the Act and even though it is provided that payment of compensation may include any other punishment, it does not state what will happen to the convict if payment is not made. Section 106 of ACJA and Section 23 of the Police Act11 Section 106 of the Administration of Criminal Justice Act 2015 provides that, subject to the provisions of the powers of the Attorney General of the Federation to prosecute any matter, prosecution of cases shall only be undertaken12 by the Attorney General of the Federation or law officer in his ministry, a legal practitioner authorized by the Attorney General of the Federation or a legal practitioner 7See I. Maraizu, ‘A Critique of Administration of Criminal Justice Act (ACJA) 2015’ Page | 71 UGBE, AGI & UGBE: A Critique of the Nigerian Administration of Criminal Justice Act 2015 and Challenges in the Implementation of the Act authorized to prosecute by this Act or any other Act of the National Assembly. One is tempted to jump into the conclusion that by this provision, policemen and personnel of other agencies who are not lawyers but involved in arrest and prosecution of offenders can no longer prosecute offenders before any court of law. This may not be so. This is because there is in existence the provision of Section 23 of the Police Act which empowers any police officer to prosecute offenders in courts of law. Since the Administration of Criminal Justice Act 2015 failed to specifically repeal the said section 23, the Police right to prosecute offenders is still subsisting. The Act should be amended to either repeal Section 23 of the Police Act or rephrase its Section 106. A solution however may be the employment of more lawyers into the Police to prosecute matters in Federal courts. Duration for DPP’s Advice13 The Act also provides that the Director of Public Prosecution should issue legal advice brought to him within two weeks of receiving the case file. It is submitted that two weeks might be too short for quality legal advice, especially in a complicated legal matters that require not just acting on a file, but involve consultations. Besides, the issue mentioned above, there is no specific time with which the case file must be forwarded by the Police to the Director of Public Prosecutions (DPP). In other words, the Police can decide to keep the file as long as they deem fit, before sending it to the Director of Public Prosecutions for legal advice. Providing for a timeline for the DPP to issue legal advice on a file brought to him without providing for a time frame within which the case file must be forwarded by the Police to the DPP for the advice will not do much for the quick dispensation of justice. Dispensation of Judges to Continue to Sit over Pending Cases after Their Elevation to Superior Courts The Administration of Criminal Justice Act 2015, s396(7) provides that: Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge, only for the purpose of concluding any part heard criminal matter pending before him and shall conclude the same within a reasonable time, provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal. This is a challenge on the Constitution of Nigeria as the aforesaid section is contrary to the constitutional provisions on the appointment of Justices of the Court of Appeal. Under the Constitution of Nigeria 1999 (as amended), on appointment as a Judge or Justice of the Court of Appeal, such a person shall assume the duties of his office. For a Justice of the Court of Appeal to continue to sit as a Federal High Court or Federal Capital Territory High Judge under the law, after his 13 E. Okolo, Op cit, Note 13 Page | 72 AFJCLJ 4 (2019) appointment or elevation to the Court of Appeal under the guise of completing part heard matters, raises not only jurisdictional but also constitutional questions. Though the intention of the drafters of the law may be good, it violates all reasonable constitutional grounds in that respect. Section 255(1) & (2) of the Constitution of Nigeria 1999 (as amended) provides that: ‘There shall be a High Court of the Federal Capital Territory, Abuja. The High Court of the Federal Capital Territory shall consist of- (a) A Chief Judge of the High Court of the Federal Capital Territory, Abuja; and (b) such number of Judges of the High Court as may be prescribed by an Act of the National Assembly’. This same position is also replicated with respect to Federal High Court and its Judges. A similar provision is made under the constitutional provision on the High Court of a State. The question to ask in this case is, whether the Administration of Criminal Justice Act 2015, a Federal law made for Federal Courts, can increase the numbers of Judges of the same Federal Courts through the backdoor (whether temporally or not) in total disregard to the constitutional provisions, under the guise of it helping the avoidance of delay in the administration of criminal justice system. Death Sentence on Pregnant Women The provision of ACJA, s404 which provide for the execution of a pregnant woman found guilty of a capital offence after delivery and weaning of her baby should be revisited and made more in tune with the trend internationally where the death penalty is abolished. Criminal legislation in the past and in some States of the Federation provide that a death sentence shall not be passed on a woman who is pregnant and convicted of a capital offence, but her death sentence shall be substituted with imprisonment for life.14 This is more commendable and ACJA should emulate this. It is submitted here that the ACJA has, by sentencing a pregnant woman to death and staying execution till delivery and weaning of the baby, proved more retributive than all the other legislation as it has failed to consider the welfare of the child who will grow up without the love of a biological mother. Such a child may in fact grow up to see the law as evil, thus giving rise to a rebellious disposition. Furthermore, the execution of a woman after her baby is weaned negates the provision of restorative justice. The woman may become reformed and eligible for parole. Place of Incarceration of a Child Offender As regards a child offender, ACJA provides in s 467 (1) that ‘a defendant convicted of an offence triable summarily may be sentenced and ordered to serve the sentence at a Rehabilitation and Correctional Centre established by the Federal Government in lieu of imprisonment. It goes further to provide that a court may make an order directing that a child standing criminal trial be remanded at a 14Section 368 (2) of the Criminal Procedure Act, Sections 270 and 271(3) of the Criminal Procedure Code and Section 302 (2) of the Administration of Criminal Justice (Repeal and Reenactment) Law of Lagos State, 2011. Page | 73 UGBE, AGI & UGBE: A Critique of the Nigerian Administration of Criminal Justice Act 2015 and Challenges in the Implementation of the Act Rehabilitation and Correction Centre.15 Thus, it clearly provides that a Rehabilitation and Correctional Centre is the place of incarceration for conviction for an offence triable summarily and for a place of remand for a child offender standing trial for a capital offence but says nothing about the place of incarceration of such a child when a sentence of imprisonment for a capital offence is finally passed on the child. The only interpretation to be given therefore is that when convicted and sentenced, the child will be imprisoned at the regular prison with adult inmates and no more at the Rehabilitation Centre. This is because by the wordings of s467(1), the Centre is only for defendants convicted of an offence triable summarily. This paper submits that it would have been more restorative if the provision had clearly stated that a child offender found guilty of a capital offence would be sentenced and ordered to serve at the Rehabilitation and Correctional Centre until the pleasure of the President is known. This, it is submitted, will clarify issues, pacify the victims of the child’s offence, as well as rehabilitate, reintegrate, and restore the child to the society as a responsible individual. Electronic Recording of Confessional Statements and its Optional Nature16 The provision on electronic recording of statements of suspect is also an issue. ACJA, s15(4) captures it all. It states thus: ‘Where a suspect volunteers to make a confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on retrievable video means’. Considering the level of illiteracy in Nigeria, ignorance as to the rights of the suspect, technological development and the daily song of the Federal Government about paucity of funds, the provision and maintenance of the equipment would pose great challenge to the police because of the capital intensive nature of maintaining such equipment. In most cases, confessional statements are usually denied by the suspect, thereby leaving the court with no option than to conduct trial within trial. Also, as the recording of confessional statement by the police is discretionary and not mandatory, since the word ‘may is used. ACJA, s15(4) has therefore created a loophole which is susceptible to being exploited by not only the police but other government departments involved in recording statement of suspects. It is the opinion of this paper that the electronic recording of confessional statements ought to be compulsory to forestall claims of involuntariness of these confessions or outright denial of them. To this end, special funding ought to be provided to the Police for the purchase and maintenance of the recording equipment. Trial in Absentia Provision The Act provides in section 352 (4) that: Where the Court, in exercise of its discretion, has granted bail to the defendant and the defendant, in disregard for the court orders, fails to surrender to the order of court 15 Section 467(3), Administration of Criminal Justice Act, 2015 16 E. Okolo, Op cit at No. 13 Page | 74 AFJCLJ 4 (2019) or fails to attend court without reasonable explanation,17 the court shall continue with the trial in his absence and convict him unless the court sees reasons otherwise, provided that proceedings in the absence of the defendant shall take place after two adjournments or as the court may deem fit. The Act by the above provision provides for trial in the absence of the defendant where after he is granted bail, he jumps bail and fails to attend court without reasonable explanation. This is a welcome development and a defendant can no longer stall proceedings against him just by refusing to turn up for his trial. If he does not, the trial will continue and he will be convicted but sentencing will be kept in abeyance until he is arrested or submits to court.18 However, what happens where at trial, bail is refused for capital offence and the defendant escapes from detention. Should trial continue? Can this provision be invoked to defend continuation of trial in his absence? This is a weighty issue which has indeed come up in a case currently under trial and where the court refused to continue trial in their absence.19 The drafters of the law need to look into this and fix the lacuna as defendants may take advantage of it, engineer jail breaks and disappear into thin air while in detention before bail is granted to them. ` Failure of the Act to Define Infanticide ACJA in section 232 makes provision distinguishing between the offences of murder and infanticide. However, the Interpretation section (s 494) does not define infanticide, neither does it differentiates between infanticide and murder of a child. This paper posits that the Act should clearly define both terms so that citizens will have a clear understanding of what constitutes each offence. Payment of Expenses Of Witnesses The Act in ss 251 and 252 provide that, when a person attends court as a state witness or defence witness, he shall be entitled to payment of reasonable expenses. The Act is silent on who pays the prosecution witness but made special reference of payment for the defence witness to be paid by the registrar. The Act needs to clarify this. However, in actual fact, the State does not pay money either to the defence witnesses or the prosecution’s witnesses citing paucity of funds. There may be need to create a fund from which these expenses will be paid. 17 Emphasis added 18 ACJA 2015, s352(4) 19 Federal Republic of Nigeria V. Maxwell Ajukwu & 3 Ors. (Charge No: CR/292/15) before the FCT High Court 21 before Honourable Justice Oji. Page | 75 UGBE, AGI & UGBE: A Critique of the Nigerian Administration of Criminal Justice Act 2015 and Challenges in the Implementation of the Act Failure to Provide a Schedule of Fees in the Act Although the Act, s486 provides that ‘[S]ubject to the provisions of this Act, such fees as may be prescribed under this Act shall be paid in any proceedings before a Court’, there is no schedule of fees prescribed in the Act and the State is not required to pay fees or cost for delay. This has led to a high level of indolence by State Counsel. It is recommended that the Act should provide a prescribed schedule of fees for any infringement under the ACJA. With this, Counsel on both sides can be penalized for acts of indolence during trial. Recognizance In Respect Of A Child Under Section 166 ACJA in section 166 provides that: Where in any case the defendant in respect of whom the court makes an order requiring that a recognizance be entered into is a child, the child shall not execute the recognizance but the court shall require a parent, legal guardian or other fit person, with or without sureties, to enter into a recognizance that the child shall do what is required under the court’s order. The question then is: What happens where a recalcitrant child refuses to do that which is required under the court’s order? What happens to the parent or legal guardian who executed the recognizance? Will they be jailed or made to forfeit a sum? There are no clear provisions on this issue. There is need for such provisions to be made for clarity and avoidance of doubt. Validation of Inventory While section 10(1) of the Act provides that: ‘(1) A police officer making an arrest or to whom a private person hands over the suspect, shall immediately record information about the arrested suspect and an inventory of all items or property recovered from the suspect’, section 10(2) states that ‘(2) An inventory recorded under subsection (1) of this section shall be duly signed by the police officer and the arrested suspect, but the failure of the arrested suspect to sign the inventory shall not invalidate it’. Section 10(2) of the Act fails to address the implication of validating the inventory not signed by the arrested suspect, who may have refused to sign the inventory for reasons relating to failure to record all the properties recovered from the suspect or for any cogent reason. Gender Sensitivity Though the Act is gender sensitive, it still retains the use of male pronouns such as ‘he, ‘his’ & ‘himself’ in the description of a person. Inability of ACJA 2015 to Make Some Specific Provisions Protecting Women and Children as Found in Some International Instruments: While several innovations in the ACJA are being hailed as novel to Nigeria, it is important to point out that there are several provisions in international instruments with lofty provisions making for efficient administration of criminal justice which are conspicuously missing from ACJA 2015. Such provisions include: Page | 76 AFJCLJ 4 (2019) 1.) Provisions ensuring that children have access to legal aid under the same conditions as or more lenient20 conditions than adults,21 and in a manner that prevents repeat victimization and secondary victimization.22 2.) Provisions ensuring the right of the child to have counsel assigned to represent the child in his or her own name in proceedings where there is or could be a conflict of interest between the child and his or her parents or other parties involved; providing information on legal rights in a manner appropriate for the child’s age and maturity, in a language that the child can understand. 23 3.) Provisions relating to protection of the privacy and personal data of a child who is or who has been involved in judicial or non-judicial proceedings and other interventions.24 4.) Provisions for appropriate referrals between legal aid providers and other professionals like child welfare providers or indeed psychologists to gain an assessment of and understand the child’s legal, psychological, social, emotional, physical and cognitive situation and needs. ACJA, s376(10)&(11) simply provides for legal aid where the suspect requests for same without any specific provisions on the issue. 5.) Provision of legal aid even for witnesses25 and the taking of adequate measures to ensure that witnesses are promptly informed of their rights to information and entitlement to assistance and protection.26 6.) Provisions to ensure the right of women to access legal aid, including27 incorporating a gender perspective into all policies, laws, procedures, programmes and practices relating to legal aid to ensure gender equality and equal and fair access to justice; taking active steps to ensure that, where possible, female lawyers are available to represent female defendants, accused and victims. 7.) Provision for equity in access to legal aid and for special measures not just women and children but also groups with special needs, like the elderly, persons with disabilities, mental illnesses, persons living with HIV and other serious contagious diseases, drug users, asylum seekers, foreign citizens, internally displaced persons, etc.28 20 Emphasis added. 21 This is provided for in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems 2013 (New York). This Resolution was adopted by the General Assembly [on the Report of the Third Committee (A/67/458)]67/187. 22 Ibid, Guideline 7, Article 48. 23Ibid, Guideline 10, Article 53(a) – (h). 24Ibid, Article 54 25Ibid, Guideline 8(50). By Guideline 8 (51) of the Resolution, the circumstances in which it may be appropriate to provide legal aid to witnesses include, but are not limited to, situations in which: (a) The witness is at risk of incriminating himself or herself; (b) There is a risk to the safety and well-being of the witness resulting from his or her status as such; and (c) The witness is particularly vulnerable, including as a result of having special needs. 26 Ibid, Guideline 8(a). 27 Ibid, Guideline 9, Article 52 28 Ibid, Principle 10, Article 32 Page | 77 UGBE, AGI & UGBE: A Critique of the Nigerian Administration of Criminal Justice Act 2015 and Challenges in the Implementation of the Act 8.) Funding: Provisions making adequate and specific budget provisions for legal aid services that are commensurate with needs of the system.29 Some of these measures could include30 establishing a legal aid fund to finance legal aid schemes, sponsoring non-governmental organizations and other organizations and identifying fiscal mechanisms for channeling funds to legal aid, such as: (i) Allocating a commensurate percentage of the State’s criminal justice budget to legal aid services; (ii) Using funds recovered from criminal activities through seizures or fines to cover legal aid for victims; and (iii) Identifying and putting in place incentives for lawyers to work in rural areas and economically and socially disadvantaged areas (e.g., tax exemptions or reductions, student loan payment reductions). 9.) Provisions that all persons having contact with, or being responsible for, children in the criminal justice system should receive education and training in human rights, and in the principles, standards and norms of juvenile justice as an integral part of their training programmes.3132 Such persons include all law enforcement officials, judicial officers, legal practitioners, prison officers, social workers and other professionals working in institutions concerned with juvenile justice. 10.) Provision for establishment of a code of practice for proper management of cases involving child victims. Child victims should be treated with compassion and respect for their dignity.33 11.) Provisions for access to fair and adequate compensation for all child victims of violations of human rights, specifically torture and other cruel, inhuman or degrading treatment or punishment, including rape and sexual abuse, unlawful or arbitrary deprivation of liberty, unjustifiable detention and miscarriage of justice.34 12.) Provisions for videotaping of the child's testimony and presentation of the videotaped testimony in court as an official piece of evidence.35 13.) Provisions requiring that the treatment of children within justice systems is consistent with their dignity and worth.36 14.) Provisions addressing the specific needs of women offenders and prisoners as well as provisions for the development of non-custodial sanctions and to ensure gender-sensitive 29ibid, Guideline 12, Article 60. 30 ibid, Guideline 12, Article 61. 31 Article 24, Guidelines for Action on Children in the Criminal Justice System (Recommended by Economic and Social Council resolution 1997/30 of 21 July 1997 in Vienna), pursuant to Economic and Social Council resolution 1996/13 of 23 July 1996. 32 Ibid, By Article 44, such personnel should also receive training in dealing with cases where children are victims 33 Ibid, Paragraph 45 34 Ibid, Paragraph 48 35 Ibid, Paragraph 50 36 Article 40 of the 1989 United Nations Convention on the Rights of the Child (CRC) Page | 78 AFJCLJ 4 (2019) treatment in prisons; as well as provisions which addresses issues faced by children imprisoned with their parent.37 15.) Provisions for the promulgation and adoption of a Code of Conduct for Law Enforcement Officials. This Code will make Rules that ensure that performance of duties by law enforcement officials are carried out in a humane manner and respect the human rights of those who come into contact with them.38 The ACJA 2015 will do well to have such a Code for Police Officers and other like agencies if indeed its purpose of justice for all is to be achieved. The Nigeria Police could also enact such a Code of this nature for handling all suspects. If provisions of this nature are incorporated into the ACJA 2015, it will go a long way to aiding the speedy administration of justice. Having discussed certain loopholes in the Administration of criminal Justice Act 2015, it is necessary to look at some challenges that may impede its implementation. 3. Challenges that impede the Implementation of the Administration of Criminal Justice Act (ACJA) 2015 The ACJA 2015 is no doubt, a much needed intervention in the criminal justice sector in Nigeria. There is however some perceived challenges that may arise to impede the implementation of the Act. These identified challenges are discussed hereunder: Reluctance to depart from entrenched systems: Without doubt, the criminal justice system in Nigeria which ACJA seeks to change has been in operation for a hundred years. This change will however not be instant as practitioners will be reluctant to change from the system they are used to. To be effective therefore, the Police/other relevant agencies need to be tutored on the new modus operandi, suspects have to be enlightened on their rights and victims of their new-found recognition and entitlements. Lack of Human Resources: Human resources are required to ensure the effective implementation of the Act. This will include appointment of more probation officers to monitor people whose sentences have been suspended or reduced to probation, parole officers who are to monitor prisoners released on parole, community service centre supervisors to monitor convicts on community service and training of court staff on use and maintenance of electronic means of recording court proceedings, to mention but a few. All these are not yet in place and without them; the implementation of the Act will be a mirage. Funding: The importance of funding cannot be over emphasized; funds will be required for the training of personnel and the provision of community service centres, probation service centres, 37 The United Nations Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders (the ‘Bangkok Rules’) 2010 adopted by the UN General Assembly in 2010 38 See the United Nations Code of Conduct for Law Enforcement Officials 1979. The UN General Assembly by resolution 34/169 of 17 December 1979 adopted the Code of Conduct for Law Enforcement Officials. Page | 79 UGBE, AGI & UGBE: A Critique of the Nigerian Administration of Criminal Justice Act 2015 and Challenges in the Implementation of the Act rehabilitation centres for convicts on parole, provision for cost of informing families or next of kin of arrested persons of their arrest, provision of compensation for witnesses which now rests squarely on the shoulders of the courts according to Section 252 of the Act,39 provision of recording equipment for judges, so they do not write in long hand, amongst others. There is also need for adequate funding of the judiciary to guarantee its independence and autonomy. For effective implementation of the Act, attention must also be accorded to provision of adequate funds for the Police Force and the Prisons and funds are currently in short supply. Lack of Subsidiary Legislation: There are yet no subsidiary legislation that will aid in the implementation of the Act such as subsidiary legislation and guidelines for sentencing, for regulation and management of non-custodial sentences, for arresting officers, guidelines and procedure regulating paroles, guidelines for representation by Legal Aid Council, amongst others. These are needed. Institutional challenges: Certain institutions will need to be put in place for proper implementation of the provisions of the ACJA 2015. Some of them are: Rehabilitation facilities, Central Criminal Records Registry and Criminal Records Registry at each State Police Command, Administration of Criminal Justice Monitoring Committee, Community Service Centres, among others. Without these, there can be no successful implementation of the Act. Execution of the Law: It is common knowledge that most times, the problem is not with the law but with the execution of the law. Practice has shown that the Police and some judges are reluctant to execute the Act. If the law is not enforced by the Practitioners its implementation will be a mirage. Lack of Political Will: The political will by the ruling elite is also critical and fundamental to the implementation of the Act. Sadly, this will is lacking. 4. Conclusion and Recommendations Even though the Administration of Criminal Justice Act 2015 contains daring innovations which are expected to help promote quick dispensation of justice, some of the contents are inadequate when compared to certain international instruments while other provisions are in contrast with some constitutional provisions and established judicial pronouncements. There is therefore need for the draftsmen to take another look at the Administration of Criminal Justice Act 2015, with a view to addressing some shortcomings identified therein. To make for effective implementation of the provisions of the Act to achieve the desired results, governments, both at the national and State levels 39 ACJA 2015, s252 provides: ‘Where a person attends court as a witness to give evidence for the defence, the court may in its discretion on application, order payment by the Registrar to such witness of court such sums of money, as it may deem reasonable and sufficient to compensate the witness for the expenses he reasonably incurred in attending the court’. Page | 80 AFJCLJ 4 (2019) must work assiduously to provide the facilities/structures needed for the implementation of the Act. These facilities/structures include40: Establishment of a Central Criminal Records Registry (CCRR) nationally and a Criminal Records Registry in every State/FCT; Retrievable video or any audio visual recording equipment in all courts and in police stations for electronic recording of suspect’s confession; IT facilities to aid taking of evidence via video link; Register of arrests and detainees at all Police Stations nationwide; Electronic and Manual database of all records of arrest at Federal and State level.; Communication facilities for the Police to notify families of detained suspects; Police diaries and stationery to record oral complaints in all Police Stations; Adequate police vehicles to convey awaiting trial inmates (ATIs) to court for trial; Functional Community Service Centres in every Judicial Division; and Rehabilitation and Correctional Centers in every State and where possible in every local government. Having identified some loopholes in ACJA 2015 and some challenges that may hinder its successful implementation, the following recommendations are made: A sufficient demonstration of political will should be made by the government by ensuring the provision of adequate funding for the implementation of the Act as funding is critical to its successful implementation. All stakeholders have to be ready to implement the provisions of the Act by embracing new attitude and orientation towards it. The Act should be reviewed to entrench international best practices. Provisions of the Act that are optional should be made mandatory to ensure compliance. Human resources should be provided by employing relevant manpower to work in various areas of need. Provisions of the Act should be made clear to avoid ambiguity. There is need for new rehabilitation centres and renovation of old ones where available as well as other relevant institutions. Subsidiary legislation should be made to aid in the implementation of the Act. If the recommendations made herein are adhered to, the purpose of ACJA 2015 will be achieved to a large extent. 40 A. Otulana: ‘Implementation Strategy for the Administration of Criminal Justice Act 2015’, Presentation at the Stakeholders’ Workshop on Implementation Strategy for the Administration of Criminal Justice Act, 2015 Page | 81 UBANYIONWU: Electoral Violence: A Case Study of the Governorship and State Houses of Assembly Elections Held in Nigeria on 9th March, 2019 ELECTORAL VIOLENCE: A CASE STUDY OF THE GOVERNORSHIP AND STATE HOUSES OF ASSEMBLY ELECTIONS HELD IN NIGERIA ON 9TH MARCH, 2019 * Abstract The 9th March, 2019 Governorship and State Houses of Assembly elections in Nigeria have come and gone, but the electoral violence that characterized the said elections is still fresh in our minds. During the said elections, the member of the House of Representative from Lagelu/Akinyele (Oyo State) Temitope Olatoye was shot dead by suspected thugs. He was one of the 13 Nigerians that lost their lives in the violence sparked by the elections in some parts of the country. This development brings to the fore the issue of electoral violence on our journey to democracy. This paper examines the incidences, causes and effects of electoral violence and its corresponding effects to our democracy with particular reference to the Governorship and State Houses of Assembly elections held in Nigeria on 9th March, 2019. Keywords: Electoral Violence, Governorship and State Houses of Assembly Elections, 9th March 2019, Nigeria 1. Introduction Governorship and State Houses of Assembly elections in Nigeria were held on 9th March, 2019.1 During the said elections, a member of the House of Representatives from Lagelu/Akinyele (Oyo State) Temitope Olatoye was shot dead by suspected thugs amid the tension that followed the said elections. Temitope was one of the 13 Nigerians that lost their lives in the violence that characterized those elections in some parts of the country.2 From the foregoing, we can come to a conclusion that elections in Nigeria have degenerated from being a means for popular participation and peaceful change of government to an invitation to intense violence and political uncertainty in the country.3 While it may seem that Nigeria‟s democracy has steadily progressed on the road from nascent to fledging, there has emerged a disturbing concern over the conduct of elections in the country.4 The conduct of elections in Nigeria has at various intervals remained an invitation to political uncertainty for the country. This is not unconnected with the recurrent incidences of electoral violence prevalent * C. J. UBANYIONWU, PhD, Associate Professor of Law, Department of International Law and Jurisprudence, Faculty of Law, Anambra State University, Igbariam Campus, currently the Chairman, Nigerian Bar Association, Aguata Branch, Phone – 08036660646, E-mail- barcjuba @ yahoo.com. 1 With the exception of Ondo, Ekiti, Anambra, Osun and Edo States where governorship elections did not hold. 2 Bisi, Olaedele et al, Rep, Police Sergeant shot dead, 11 Others killed, Two beheaded, The Sunday Nation, Vol. 13, No. 4605, March 10, 2019 at p.4. 3 http://www. International peace and conflict.org/profiles/blogs/election… (accessed on 18 June 2012). 4 Ibid. Page | 82 AFJCLJ 4 (2019) in the country. Elections in Nigeria have been described as a do-or-die affair even by esteemed official quarters.5 As a result of this, series of violent clashes occur and sometimes results to loss of lives and property. For example, during the just concluded 2019 governorship and state houses of assembly elections, about 13 persons were confirmed killed.6 As electoral competitions become the preserve of violent individuals, the recurrence of electoral violence scares credible people from exercising their franchise and in engaging in partisan politics. This poses threat to democracy and development of the country. The degeneration of election to a violent warfare is not only peculiar to Nigeria. Other African countries like Cote d‟Ivoire, Democratic Republic of Congo, Kenya and Zimbabwe are also battling the consequences of election.7 In Cote d‟Ivoire, the dispute over the result of the 28 November, 2010 Presidential run-off election between former President Laurent Gbagbo and erstwhile Prime Minister, Allasane Quattara8 provoked a short - lived civil war in the country that ended with the capture and overthrow of Laurent Gbagbo in April, 2011 by opposition forces loyal to Allasane Quattara.9 Similarly, in the Democratic Republic of Congo, opposition leader, Etienne Tshiekedi and President Joseph Kabila lay claim to victory as opposition reject the result of elections which observes claim lacked credibility. In the ensuing controversy, Etienne Tshisekedi unilaterally declared himself president.10 In Russia, the parliamentary elections of December, 2011 generated intense national resentment that provoked popular demonstrations against the administration of Prime Minister Vladimir Putin. Protesters across Russia openly demanded the resignation of Vladimir Putin and cancellation of the election. Former Soviet leader, Mikhail Gorbachev called for the cancellation of the election result. This incident has been described by Al Jazeera as the administration‟s greatest challenge confronting the administration in 2011.11 Other countries like Pakistan, India and Iraq also have a history of election related violence.12 This article therefore examines the incidence, causes and effect of electoral violence and its corresponding effects to our democracy taking into account the 2019 governorship and state houses of assembly elections in Nigeria. 2. What is Election? Election is the corner stone of democracy.13 Election is a means through which people make choice of leadership.14 It is the process of electing one person or more for leadership positions in both public 5 http://www. International peace and conflict.org/profiles/blogs/election… (accessed on 18 June 2012). 6 Bisi, Oladedele et al, Rep, Police Sergeant shot dead, 11 Others killed, two beheaded, op cit, p.4. 7 http://www. International peace and conflict.org/profiles/blogs/election… (accessed on 18 June 2012). 8 Both of who declared themselves president. 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid. 13 T. Osipitan, „Problems of Proof under the Electoral Act 2002‟ in Judicial Excellence, Essays in Honour of Hon. Justice Anthony Iguh JSC CON, Enugu, Snaap Press Ltd, 2004. Page | 83 UBANYIONWU: Electoral Violence: A Case Study of the Governorship and State Houses of Assembly Elections Held in Nigeria on 9th March, 2019 and private establishment. Election offers a medium through which citizens in a polity choose their representatives and political leadership.15 It also allows a degree of communication between the rulers and the ruled and further provides a means of legitimizing the rights of the rulers to govern.16 In the contemporary world of today, elections have become the most acceptable means of changing leadership in any given political system. Representative government is often referred to as democracy where the authority of government is derived solely from the consent of the governed. The principal mechanism for translating that consent into governmental authority is the holding of free and fair elections.17 A free and fair election gives the assurance that those who emerge as rulers are the elected representatives of the people. Except in case where an aspirant is returned unopposed; there will usually be at least two contestants to elective posts. Rules and regulations are normally put in place for the conduct of free and fair elections. The Electoral Act18 is the law which currently regulates elections in Nigeria. Applying a broad interpretation, the Court of Appeal in Progressive Peoples Alliance (PPA) v. Sariki19 interpreted the word “election” as used in section 137(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to mean the “process of choosing by popular votes a candidate for a political office in a democratic system of government. It cannot refer exclusively to the polls. The casting of votes by the electorates on the day of the polls is just part of the electoral process.20 By the provision of the Electoral Act21 under Part IV, the word election is a generic term comprising inter alia submission of list of candidates and their affidavit by political parties, nomination of candidates, conduct of the polls etc. In this article, the term election will be used in a broad manner. 3. Free and Fair Election defined Free election is an election in which the political system and processes guarantee that each voter will be allowed to vote according to conscience. The concept of “free and fair” election is not a legal theory as such. Its significance is underscored by municipal and international legal instruments. The African Charter on Human and People‟s Right22 provides that every citizen shall have the right to participate freely in the government of his country either directly or through freely chosen representatives. Article 21(3)23 provides that the will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine election which shall be held by secret vote or by equivalent free voting procedures. From the above, it can be seen that free and fair elections 14 http://www. International peace and conflict.org/profiles/blogs/election… (accessed on 18 June 2012). 15 Ibid. 16 Ibid. 17 Www.Buzzle.com/articles/electoral-reform-in-Nigeria-html-28k (accessed on 18 December 2008). 18 Electoral Act 2010, Cap E6 Laws of the Federation of Nigeria, 2004 (as amended). 19 (2007) 17 NWLR (Pt 1064) 456. 20 Ibid per Ogunwumi JCA who read the lead judgment. 21 Electoral Act 2010, Cap E6 Laws of the Federation of Nigeria, 2004 (as amended). 22 Article 13(1), Cap A9 Laws of the Federation of Nigeria, which is part of our law as was held in Abacha v. Fawehinmi (2006) 6 NWLR (Pt 660) 228. 23 Universal Declaration of Human Rights. Page | 84 AFJCLJ 4 (2019) are those elections held without physical or psychological intimidation and in accordance with the provisions of fair electoral laws in force. They are those elections conducted so that the electorates have reasonable opportunity to vote, with each vote given same effect.24 4. What is Violence? Violence is the use of physical force, usually accompanied by fury, vehemence, or outrage, especially force unlawfully exercised with the intent to harm.25 It is an act against an individual or group, with the intent to cause injury or death.26 Violence arises from the pursuit of varying interests, goals and aspirations by individuals, and/or groups.27 It is a fact of life, especially in societies like Nigeria. 5. Electoral Violence defined Electoral violence is all forms of violence that emanate, at any stage, from differences in views, opinions and practices during the process of elections.28 It is the employment of force by political parties or their supporters to intimidate opponents and threats to a democratic regime and has often accounted for seizures of political power by the use of undemocratic means, such as force.29 Electoral violence has regularly been reported in Nigeria and manifest in the 3 electoral stages, namely: pre- election, during election and post-election in various forms.30 Electoral violence in Nigeria has two broad dimensions, physical and psychological.31 It ranges from acts of assault, arson, ballot box snatching and stuffing to murder/assassination. Between 1999 and 2007, electoral violence has reportedly claimed more than 11,000 lives in Nigeria.32 6. History of Electoral Violence in Nigeria The history of general elections33 in Nigeria since independence in 1960 has been characterized by widespread malpractices and violence. Attention of the writer will be focused on the elections conducted in Nigeria in 1999, 2003, 2007 and 2011 in analyzing electoral violence. 1999 General Elections The fourth republic in Nigeria started on 29th May, 1999. The military regime of General Abdulsalaam Abubakar was committed to a peaceful transition to democracy. Before then, there was growing fatigue of military rule at domestic and global arena and increasing international clamour for 24 B.A. Garner, (ed), Black’s Law Dictionary, 8th Ed, Thompson Group. USA, 2004, p.688. 25 Ibid at p. 1601. 26 http://aceproject.org/ero-en/regions/africa/NG/ electoral – violence – n … (accessed on 18 June 2012). 27 Ibid. 28 Ibid. 29 Ibid. 30 http://www.monitor.upeace.org/archive.cfm?id- article =67 (accessed on 18 June 2002). 31 Ibid. 32 Ibid. 33 General elections were conducted in post independent Nigeria in 1964, 1979, 1983, 1993, 1999, 2003, 2007, 2011, 2015 and 2019. Page | 85 UBANYIONWU: Electoral Violence: A Case Study of the Governorship and State Houses of Assembly Elections Held in Nigeria on 9th March, 2019 democratization in Nigeria and the wider world.34 These reasons partly accounted for the smoothness and swiftness of the General Abubakar‟s transition programme which climaxed in the 1999 general election and subsequent handover of power to civilians. Consequently, the election which was under military supervision was largely free of violence.35 2003 General Elections The next general elections of the fourth republic held in April, 2003 were marred by widespread rigging, voter intimidation and violence.36 Dozens of people were killed in pre-electoral violence in various parts of the country. Events that followed the political crisis in Anambra State involving Dr. Chris Ngige and Chief Chris Uba37 and the latter‟s subsequent confession exposed the apparent fraud that characterized the election in the country.38 Specifically, Uba confessed unequivocally that: „We the PDP did not win the 2003 elections in Anambra State. I have gone to church to confess. The election had no document. I called the result before midnight. I gave INEC money and asked them to announce the result‟.39 During the election, the sub-station of the Federal Radio Corporation of Nigeria in Markudi (Benue State) was burnt down.40 At Oji River in Enugu State, the office of the Independent National Electoral Commission (INEC) was burnt down following violent protest on alleged falsification of electoral results.41 In Niger Delta region, elections aggravated the political crisis in the Niger Delta. During the period, the level of violence there was the highest in the country.42 It was observed that politicians recruited and armed members of youth groups to intimidate opposition politicians and their supporters. Many of these armed youths have freed themselves from their former patrons and are now independent, well-armed actors with experience and knowledge of the terrain. Now, they engage in oil bunkering and other violent crimes like armed robbery and kidnapping.43 In Benue State, the Kwande crisis of March, 2004 was traced to the 2003 gubernatorial elections. Supporters of Paul Unongo, an indigene of Kwande and the flag bearer of the All Nigerian People‟s Party in the 2003 gubernatorial elections saw the March, 2004 local government election as an opportunity to regain strength and control of Kwande. Meanwhile the ruling PDP at the state and local government levels were determined to maintain power. The stage was therefore set for the test of relative power and influence and also a contest over pre-eminence and the political leadership of the Tiv ethnic group.44 The tensions was compounded by the invasion of unknown soldiers which led to 34 http://www.internationalpeaceandconflict.org/profiles/blogs/election... (accessed on 18 June 2012). 35 Ibid. 36 Ibid. 37 Both members of the Peoples Democratic Party – PDP at the time. 38Ibid. 39 Ibid. 40 C. J. Ubanyionwu, ‟Electoral Violence and future of Nigerian Democracy‟ The College of Law, Joseph Ayo Babalola University Law Journal, Ikeji - Arakeji, Vol 1, No. 1, 2014, pp. 48-56. 41 Ibid. 42 Ibid. 43 Ibid. 44 Ibid. See also Oga Ajene, „Partnership for conflict management and Peace – building: A field Experience from Kwande local Government of Benue State, Nigeria,‟ being paper presented at the Page | 86 AFJCLJ 4 (2019) the killing of 11 people and wounding of about 9 in Adikpo, the headquarters of Kwande local government area. The victims were mostly supporters of the ANPP. The bubble burst after the Benue State Independent Electoral Commission declined to release the result of the local government elections of March, 2004 in Kwande but opted instead to postpone the election which had already been held. The ensuing violence led to the death of not less than 12 people and destruction of property valued at about N293, 501, 288 Million Naira.45 In its report on the 2003 general elections, the Transition Monitoring Group (TMG) maintained that the desperation to capture power by members of the political class intensely heated up the political process. Political office holders utilized the power of incumbency to intimidate the opponents. This began with the stage managing of the registration of political parties to give advantage to political incumbent. It further observed that even pre-election campaign were characterized by political violence including the assassination of prominent political figures such as Chief Bola Ige, Harry Marshal, Victor Nwankwo and Chief Dikibo.46 2007 General Elections The 2007 general elections in Nigeria were also flawed and generated immense tensions in the polity.47 The elections were marred by pre and post election violence. I shall highlight some instances to illustrate the pointed being made: In Ekiti State, on the day of the election, at least two persons were killed in Ikere-Ekiti and Ise-Ekiti while eight others received gun shots in the violence that ensued in the course of voting. There was massive snatching of ballot boxes in virtually all local government areas.48 In Ondo State, about eight people were arrested while about five others were wounded during the Presidential and National Assembly elections held on 21/4/07.49 In Bauchi State, thugs virtually took over the street even before the announcement of the governorship result. Because of the deteriorating situation occasioned, curfew was imposed in the state.50 In Delta State, INEC office at Obiaruku was burnt down on the morning of the election. Election in the State was characterized by intimidation, arson, destruction of lives and properties in several parts of the state, accompanied by hijack of electoral materials. As a result of the violence in some parts of the State a dusk to dawn curfew was imposed on Ekpan and Effurun in Uvwie local government.51 Other States that were overtaken by violence as a result of the elections, especially after results were declared included Anambra, Enugu, Imo, Kano, Gombe and Rivers.52 Colloquium organized by the Strategic Partnership for Peace (PASPA) and the Network of African Peace Builders (NAPS) at Ecowas Secretariat, Abuja, 6-8 October, 2008. 45 Ibid. 46 Report of the Transition Monitoring Group on 2003 General Elections cited in Michael Oddih, „Electoral fraud and the democratic Process: Lessons from the 2003 Elections,: in Attahiru Jega and Okechukwu Ibeanu (eds.), Elections and the Future of Democracy in Nigeria, A publication of the Nigerian Political Science Association., 2007. 47 Inaugural speech of President Umar Musa Yar‟ Adua on 29 May, 2007 at Eagles Square Abuja. 48 C. J. Ubanyionwu, „Fight against political Corruption in Nigeria‟, Nnamdi Azikiwe University Journal of Public & Private Law, Vol. 4, 2011, pp. 244-256. 49Ibid. 50 Ibid. 51 Ibid. 52 Ibid. Page | 87 UBANYIONWU: Electoral Violence: A Case Study of the Governorship and State Houses of Assembly Elections Held in Nigeria on 9th March, 2019 2011 General Elections On the number of people arrested in their attempts to snatch ballot boxes, the chairman of INEC, Prof. Jega said that about 7 people were arrested in Nasarawa, apart from the one in Bayelsa State where a sitting Senator is involved in an attempt to snatch ballot boxes.53 At Oporoma, headquarter of Southern Ijaw local government area, it was gathered that ex-militant commander, Eris Paul (alias Ogun boss) and his boys were also said to have hijacked election material from INEC officials for some unnamed PDP candidate.54 At Odomi and Agbere communities in Sagbama local government area, the special adviser to the governor on security matters, Richard Kpodoh also allegedly hijacked election material to unknown destination while the senatorial result sheet was also carted away at Adagbabiri community in the same local government area by a group of youths.55 It was alleged that JTF impounded a car loaded with ammunition in the house of a House of Representatives aspirant in Kwale, Ndokwa West local government area of Delta State. The politician was said to be distributing guns to his boys when the military personnel invaded the house and shot sporadically to scare the residents who were said to have escaped leaving the car behind.56 7. Diagnosis of Electoral Violence during the March 9, 2019 Governorship and State Houses Elections in Nigeria As stated earlier, a member of the House of Representatives from Lagelu/Akinyele (Oyo State) Temitope Olatoye was shot dead by suspected thugs amid the tension that followed the said elections. Temitope was one of the 13 Nigerians that lost their lives in the violence that characterized those elections in some parts of the country.57 Other highlights of electoral violence during the March 9, 2019 governorship and State Houses of Assembly elections in Nigeria include-; Six (6) people were killed by gunmen in Rivers State with two (2) of them beheaded.58 A suspected ballot box snatcher was shot dead by soldiers as he was making away with the box from a polling unit in Ikot Udo Ossiom village, Ukanafun Council of Akwa Ibom State.59 An election observer was killed allegedly by a police stray bullet at Umuida community, Enugu Ezike, Igboeze North Local Government Area of Enugu State.60 In Ughelli South Local Government Area of Delta State, a gang of gunmen killed a man on a polling unit.61 Two (2) persons were killed at Oba-Akoko, headquarters of Akoko Southwest Local Government Area of Ondo State in an attempt by hoodlums to snatch a ballot box.62 In Ebony State, suspected thugs attacked the office of the INEC in Ezza North Local Government Area, setting it on fire. The hoodlums also burnt down Community Secondary School Okposi, 53 Oguwike Nwachukwu, „PDP loses in Sambo, Obasanjo, Bankole Units, Sunday Independent, April 10, 2011, p.2. 54 Ibid. 55 Ibid. 56 Ibid. 57 Bisi, Oladele et al, Rep, Police Sergeant shot dead, 11 Others killed, two beheaded, op cit, p.4. 58 Ibid. 59 Ibid. 60 Ibid. 61 Ibid. 62 Ibid. Page | 88 AFJCLJ 4 (2019) Umuoghara.63 In Delta State, suspected thugs hijacked voting materials while officials of some parties were injured in some parts of the State.64 In Kastina State, two security agents were killed while 20 electoral officials were abducted.65 Also, in Delta State, two persons were killed in ovade-Oghara Community, while armed thugs stormed a voting center at Okome Primary School in Oghara, Ethiope West Local Government Area, Delta State, chasing away voters and electoral officials.66 Masked hoodlums set ablaze electoral materials at Usagbe Primary School, Ogbido in Etsako West Local Government Area of Edo State.67 The hoodlums numbering about five were said to have emerged from the bush, shot sporadically to scare voters away from the polling unit.68 8. Legal framework for combating Electoral Violence in Nigeria In order to ensure that law and order is maintained, the Constitution69 created the Nigeria Police. Section 21 (1) of the said Constitution70 provides as follows: „There shall be a police force for Nigeria, which shall be styled the Nigeria police force and subject to the provision of this section, no other police force shall be established in the federation or any part thereof‟. The statutory duties and functions of the Nigerian police force are clearly defined under section 4.71 The duties are as follows:- protection of life and property, prevention and detection of crime, apprehension of offenders, preservation of law and order, and enforcement of all laws and regulations with which they are directly charged, as well as performance of such military duties within and without Nigeria as may be required of them. It should be noted that the ability of the police to discharge these onerous duties in our electoral process is still doubtful. The Electoral Act 201072 contains some provisions aimed towards curbing electoral violence in Nigeria. We shall briefly look at some of these provisions. It is an offence if a person while present at a political rally or procession or voting centre, has with him any offensive weapon or missile otherwise than in pursuance of a lawful duty.73 A person who contravenes the provision of this section is guilty of an offence and liable on conviction to a maximum fine of N2, 000,000.00 or imprisonment for a term of 2 years or both.74 It is not a defence that the offensive weapon or missiles was not used in criminal circumstances during the period.75 Certain conducts are clearly prohibited by the Electoral 63 Apathy, Killings mar governorship, State Assembly Polls, Sunday Vanguard, Vol. 24, No. 15940, March 10, 2019, p.3. 64 Ibid. 65 Ibid, at pp.3 and 5. 66 Ibid, at p.5. 67Ibid, at p.6. 68 Ibid. 69 The Constitution of the Federal Republic of Nigeria 1999 (as amended). 70 Ibid. 71 Section 4 of the Police Act Cap P19, Laws of the Federation of Nigeria 2004. 72 Electoral Act, 2010, Cap E 6 Laws of the Federation of Nigeria 2004 (as amended). 73 Ibid, Section 94 (2). 74 Ibid. 75 B. Nwakanma & N. Olehi, Laws Governing Elections and Election Petitions, , Edu-Edy Publications, Owerri, 2007, p. 216. Page | 89 UBANYIONWU: Electoral Violence: A Case Study of the Governorship and State Houses of Assembly Elections Held in Nigeria on 9th March, 2019 Act 2010 to ensure smooth political activities. Section 95 (1)76 provides that “no political campaign or slogan shall be tainted with abusive language directly or indirectly likely to injure religious, ethnic, tribal or sectional feelings.” Abusive, intemperate, slanderous or base language or insinuations or innuendoes designed or likely to provoke violent reaction or emotions shall not be employed or used in political campaigns.77 Place designated for religious worship, police station, and public offices shall not be used - (a) for political campaigns, rallies and processions; or (b) to promote, propagate or attack political parties, candidates or their programmes or ideologies.78 No political party or member of a political party shall retain, organize, train or equip any person or group of persons for the purpose of enabling them to be employed for the use or display of physical force or coercion in promoting any political objective or interests, or in such manner as to arouse reasonable apprehension that they are organized, trained or equipped for that purpose.79 For clarity section 95(6) of the Act provides that:- No political party, person or candidate shall keep or use private security organization, vanguard or any other group or individual by whatever name called for the purpose of providing security, assisting or aiding the political party or candidate in whatever manner during campaigns, rallies, processions or elections. Section 96(1) of the Electoral Act 2010 provides that no candidate, person or group of persons shall directly or indirectly threaten any person with the use of force or violence during any political campaign in order to compel that person or any other person to support or refrain from supporting a political party or candidate. Any person who contravenes this provision is guilty of an offence and liable on conviction to a maximum fine of N1, 000,000.00 or imprisonment for a term of 12 months. In the case of a political party, the punishment is a fine of N2, 000,000.00 in the first instance, and N500, 000.00 for any subsequent offence. It is an offence for any candidate, person or association to engage in campaign or broadcast based on religions, tribal, or sectional reason for the purpose of promoting or opposing a particular political party or the election of a particular candidate.80 Contravention of the provision of this section is an offence and on conviction shall be liable to a maximum fine of N1, 000,000.00 or imprisonment for 12 months or both. 9. Causes of Electoral Violence The main causes of electoral violence can be summarized thus:- Poverty/unemployment – Poverty is the state of being extremely poor. It is a situation whereby an individual cannot meet the basic needs of life. Such a person is more likely to participate in violence than a rich person.81 The 2002 killing and bombing in Kwara State of Nigeria was traced to this problem.82 76 Electoral Act, 2010, Cap E 6 Laws of the Federation of Nigeria 2004 (as amended). 77 Ibid; section 95 (2). 78 Ibid; section 95 (3). 79 Ibid; section 95 (5). 80Ibid, section 102. 81 http://www.monitor.upeace.org/archive.cfm?id- article =697 (accessed on 18 June 2012). 82 Ibid. Page | 90 AFJCLJ 4 (2019) Ineffectiveness of Security Forces / Culture of Impunity - The ineffectiveness of security outfits (especially the police) is another factor that encourages electoral violence. During the pre-election stage of the 2003 general elections, for example, a number of politicians were murdered.83 The police have been unable to get to the root of these killings. This failure seems to be creating a culture of impunity and motivation for recurrence of the crime. Weak Penalties – The Criminal or Penal Code as well as the Electoral Act spelt out crimes and the penalties or punishment for violators. Penalties or punishment are intended to achieve correction, retribution and deterrence. In Nigeria, there are no specific legislations against certain electoral offences. For example, the laws have no provision for the snatching of electoral boxes from polling booths which is a common crime during elections. Moreover, the penalties for acts associated with electoral violence like assault and arson, are generally weak. This has contributed to the culture of impunity and underscores the need to review the extant laws.84 Weak Governance and Corruption – Weak governance and corruption are some of the causes of violence in Nigeria, as they make people desperate enough to seek any means including crime and violence just to survive. Corruption is closely entwined with political violence in Nigeria. Public revenues are not only stolen, but are often used to pay for the services and weapons used for electoral violence.85 Lack of accountability and absence of social security could be adduced for the level of corruption. Small Arms Proliferation – Another contributory factor to electoral violence is the proliferation of small arms in the country. There were over one million illegal small arms reportedly in circulation in Nigeria as at 2004.86 These weapons perpetuate violent conflict and create new cycles of violence and crime.87 Electoral violence has also been linked to the proliferation of these arms.88 Immunity Clause – another cause of electoral violence is the retention of immunity clause in the Constitution.89 The immunity clause has made the president, governors and their deputies to be sacred cows that cannot be touched. They do all sort of things to remain in power because they are covered by immunity clause. I shall use the case of Chief Mrs. Anike Olowoporoku & Ors V. Ekiti State Electoral Commission & Ors90 to show case the extent governor Fayose could go to make sure that his party remained in power. One of the three police personnel who testified for the petitioner during the hearing of the petition gave vivid account of the role played by governor Fayose thus – 83 http://www.monitor.upeace.org/archive.cfm?id- article =697 (accessed on 18 June 2012). 84 Ibid. 85 Ibid. 86 Ibid. 87 Ibid. 88 Ibid. 89Constitution of the Federal Republic of Nigeria 1999 (as amended). 90 Unreported suit No. EPT/EKLG/27/2004 reported in the Daily Independent, Thursday, June 21, 2007, p.3. Page | 91 UBANYIONWU: Electoral Violence: A Case Study of the Governorship and State Houses of Assembly Elections Held in Nigeria on 9th March, 2019 Voting started 9 O‟ clock and around 9:30, governor Fayose and some mobile police came to me with his entourage. The governor greeted me, „well done‟ he said he wanted us to cooperate, and I asked how, he said he wanted to collect the ballot papers and put them in the box. I said no. He said if I refused he would carry the box away. I told him the DPO has instructed us to take care of the box and maintain peace. He ordered some persons following him to carry the box. I held the box and struggled for it with them. They pushed me down and collected my baton. Before I stood up, the ballot box had been taken away. They fired into the air as they were going. I hid somewhere till they left. I came out later and went to the station. I discovered there was commotion everywhere. They were singing as they were going in Yoruba which translated to “let everybody warn his ward as today will be tough.” Some vilians followed the governor in addition to mobile police without tags… 10. Effects of Electoral Violence It causes political instability. Political instability often arises due to inability of opposition and relevant actors in governance to resolve perceived or real grievance. Electoral violence, if not properly addressed, could ultimately lead to escalated violence. This will adversely affect the development of the country. Electoral violence breeds insecurity. The collapse of the 1st and 2nd republics is attributable to this, as can be seen from our illustrations in the course of this work. In addition to the insecurity, there are attendant costs like increased security votes and the resources spent on repairs of damaged infrastructure. A good example was the crisis in Anambra State which eventually led to the burning of government house etc and abduction of the State governor. These resources spent in rebuilding the state could have been better spent on human and social development and such trends adversely affect the social and economic wellbeing of the country.91 Another effect of electoral violence is that it has helped propagate the ongoing cycle of violence in the country. We are witnesses to what is happening in Nigeria presently where citizens are mercilessly killed on daily bases. Another good example is the Western Region crisis during the rescheduled regional elections late in 1965 which led to the collapse of the 1st Republic. Another effect of electoral violence is that it encourages voters‟ apathy in electoral process. In Akwa Ibom State, during the 2007 general elections, voters‟ apathy was high. A voter at one of the centres in Nsit Atai said of the election thus: „Well, whether I vote or do not vote, it just doesn‟t count because the result would be declared in favour of the highest bidder. So, if that is the case why should I wait for several hours here under the sun when it is obvious that my franchise has already been mortgaged?‟.92 Again, in Lagos State, low turn-out of voters characterized 9/3/19 Governorship and House of Assembly election as most people remained indoors. Explaining the reason for the low turn-out in Jakande Estate, Low Housing Estate Primary School, one of the voters said: I arrived my polling unit by 8: 30am to vote but the place is empty as you can see. I 91 http://www.monitor.upeace.org/archive.cfm?id- article =697 (accessed on 18 June 2012). 92 I. Ekponta , „A Violent – ridden election,‟ The Nation, Sunday, April 22, 2007, page 42. Page | 92 AFJCLJ 4 (2019) suspect that because of the violence that occurred in the last elections, many eligible voters lost interest in coming out this time around.93 11. Conclusion and Recommendations It must be noted that the support for democracy and enthusiasm about elections in Nigeria were high but people are now being discouraged by violence to exercise their franchise. If violence and electoral fraud were reduced, people would be more enthusiastic to go out and exercise their franchise and in doing so, our democracy would be strengthened. There is need for Nigerian political stakeholders to sanctify the electoral process so as to reduce voter‟s apathy occasioned by electoral violence so that democratic institutions in the country would be strengthened. This could be achieved through seminars, training and retraining of political stakeholders. Electoral violence and malpractices have been on the increase since independence. There is need for strict enforcement of the provision to the Constitution, Electoral Act and Criminal or Penal Code dealing with electoral violence and the prosecution of all those apprehended in the commission of these crimes. There is need to revisit the legislative proposal to create an Electoral Offences Commission along the lines suggested in the commission‟s report on electoral reforms. I am of the firm conviction that a body solely established to deal with the problem of prosecuting electoral offences will be more effective in terms of recruiting the requisite staff and concentrating on the discharge of its mandate. The Constitution of the Federal Republic of Nigeria 1999 (as amended) should be amended to remove totally the immunity clause enjoyed by the president, governors and their deputies so that all will be equal before the law. There is equally need so abolish the issue of second term. All political office holders should quite the stage after finishing their first term in office. This will go a long way in reducing do-or-die syndrome in our political process. Concerted efforts should be made to combat youth unemployment. It is time we look at the salaries and emoluments of political office holders. Their salaries and emoluments should be made to be unattractive so that the do-or-die syndrome obtainable in our polity would be reduced to the barest minimum. The agencies of government charged with mass education should rise up to their duties. A properly educated and informed public will not only see the ills of electoral violence and refrain from it, but will also help Nigerians take the right political positions about issues and policies. Constitutional courts should be established to interpret and handle election and constitutional matters to avoid the conflicting judgments emanating from our courts and tribunals. This, it is believed will curtail some excesses that in many instances generate electoral violence. It is my belief that with the implementation of the measures outlined above and appropriate funding and equipping of our security outfits, the nation will experience less of politically motivated violence. 93 Chinelo Obogo, Voter apathy mars guber/assembly polls in States, Sunday Sun, Vol.15, No. 829, March 10, 2019, p. 40. Page | 93 EZEANOKWASA: Child Pornography under the Cybercrimes Act 2015 of Nigeria: The Law and its Challenges CHILD PORNOGRAPHY UNDER THE CYBERCRIMES ACT 2015 OF NIGERIA: THE LAW AND ITS CHALLENGES* Abstract This paper examines the prescriptions of the Cybercrimes Act 2015 of Nigeria on cyber child pornography and the challenges facing them. The protection of children from sexual abuse and exploitation is a germane task for a State that is committed to guaranteeing human rights of children and promoting their welfare. The cyberspace, in spite of its many benefits to modern living, has become a strong purveyor of child pornography facilitated by its privacy, anonymity and pervasive availability. The need to protect children makes it imperative to prevent and punish the abuse of the cyberspace by using it for this unwholesome activity. It is for this that the Cybercrimes Act 2015 of Nigeria is a welcome legal initiative particularly as the extant Criminal Code and Penal Code do not provide adequately for cyber child pornography. The finding of this paper is that the prohibition of the offence is comprehensive and the punishment heavy. However, the desired result of preventing the offence would not be well achieved if challenges like cyber inadequacies of the Nigerian Police, lack of awareness of the offence of cyber child pornography and unemployment militating against the Act are not addressed. The methodology of the paper is doctrinal. Keywords: Nigeria, Cybercrimes, Child pornography, Prosecution, Unemployment, Challenges 1. Introduction Cybercrimes Act 2015 is a welcome development in Nigeria particularly as it seeks to confront inter alia the problem of cyber child pornography. It fills a yawning gap in Nigerian criminal law because the principal criminal codes in the country, the Criminal and Penal Codes do not have the cyberspace in view and so do not cover it adequately. Child pornography on the part of victims, a form of sexual abuse and exploitation, injures children in many dimensions, even leading to their death. It causes them depression and trauma, just to mention but a few. Harm to children is harm to their parents, family and the society at large. Cyber space, the global internet network, which has brought many benefits to modern living has paradoxically become also a source of concern for modern living due to the crimes perpetrated in it and particularly child pornography. This makes the Cybercrimes Act 2015 of Nigeria a welcome legislative initiative. This paper examines its prescriptions on child pornography and the key challenges to them. The finding of the paper is that the prohibition of the offence is comprehensive and the punishment heavy. However, the desired result of preventing the offence would not be well achieved if challenges like cyber inadequacies of the Nigerian Police, lack of awareness of the offence of cyber child pornography and unemployment militating against the Act are not addressed. The methodology of the paper is doctrinal. 2. Cyber Child-pornography and Its Problems Child pornography is an aspect of the phenomenon of pornography. Thus the idea of child pornography involves the concept of pornography. Etymologically pornography comes from two Greek words, porni (prostitute) and graphein (to write), and literally means to write about prostitutes. It involves writing or presentation of the life or activities of a prostitute. Over time pornography evolved to stand for a representation of sexual behaviour in books, pictures, statues, motion pictures, and other media with the sole purpose of causing sexual excitement.1 Thus the Duhaime's Law Dictionary defines pornography as ‘the portrayal of *Jude O. EZEANOKWASA, PhD (Law), JCD (Canon Law), LLB, BL, BTh (Theology), BPhil (Philosophy), Lecturer, Department of International Law & Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, P.M.B. 5025, Awka, Anambra State, Nigeria. E-mail: [email protected] Page | 94 AFJCLJ 4 (2019) sexual acts solely for the purpose of sexual arousal.’2 In City of Youngstown v DeLoreto in the United States of America (U.S.), the Court of Appeal of Ohio defined pornography as ‘the portrayal of erotic behavior designed to cause sexual excitement.’3 The court stated further that ‘it consists of words, acts, or representations that are calculated to stimulate sex feelings independent of the presence of another loved and chosen human being. It is divorced from reality in its sole purpose to stimulate erotic response. It is preoccupied with and concentrates on sex organs for the purpose of sexual stimulation. It emphasizes them and focuses on them in varying ways calculated to incite sexual desire’.4 Child pornography thus is that pornography in which children or representations of children are involved. A pertinent question that arises here is, who is a child? Many countries of the world consider as a child a person who has not attained 18 years of age.5 Studies have associated the use of pornography with attitudes and behaviours that are harmful to the individual, marriage and family.6 Recent studies in the U.S. identified pornography as one of the causes of high rate of mental problems in the higher education of the country which often result to suicide.7 The overall harmful effects of pornography on the society have been classified into: effects on the mind, body and soul; desensitizaion, habituation, and boredom; distorted perception of reality; sexually transmitted diseases and out of wedlock pregnancy; sexual addiction; and aggression and abuse.8 Since the above problems are associated with pornography in general it is presumed that what is on focus here is adult pornography. The magnitude of the harm changes exponentially if children are brought into the scene with child pornography. In this circumstance whether as people involved in the production and distribution of child pornography or users of it, they are victims. This is because they are immature, young, inexperienced and vulnerable, and should be protected by the society. It is 1JP Jenkens, ‘Pornography Sociology’ in Encyclopedia Britannica, Page | 95 EZEANOKWASA: Child Pornography under the Cybercrimes Act 2015 of Nigeria: The Law and its Challenges for this that the Cybercrimes Act 2015 came in to prevent and punish child pornography in the cyber space. 3. Cybercrimes Act 2015 and Child-Pornography The Cambridge Enlgish Dictionary defines the prefix cyber as ‘involving, using, or relating to computers, especially the internet.’9 The Merriam-Webster Dictionary gives a similar definition to it as ‘relating to, or involving computers or computer networks (such as the Internet).’10 The word cyber, whether as a prefix or adjective suggests activities done in the internet. Cybercrime therefore is a crime perpetrated in the internet. The Cybercrimes Act 2015 (hereinafter referred to as the ‘Act’) is Nigeria’s legal response to the growing incidence of crime in the cyber space and it is in furtherance of its obligations under international treaties on cyber-security. Including child pornography as one of the crimes prohibited and punished by the Act is a particular legal response to growing incidence of sexual abuse and exploitation of children and it is also in furtherance of its obligations under international legal instruments on the protection of children. Amongst these instruments are the United Nations Conventions on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The Act’s prohibition of child pornography is a remarkable achievement given that the prohibition is rooted in the acceptance of 18 years as the majority age for valid sexual consent and by extension an acceptance of the fact also that the sexual consent of a person cannot be supplied by another person. Cultural differences on the issue of the time a girl is mature for consensual sexual activities have all the time forestalled national legislative efforts at combating the problem of child marriage in the country.11 From this background the Act is a breakthrough as its provisions bind all Nigerians. 3.1. Child Pornography under the Cybercrimes Act The offence of child pornography is dealt with in section 23 of the Act. Section 23(5) defines ‘child’ or ‘minor’ to mean a person below 18 years of age. Child pornography, according to section 23(4), includes a pornographic material that visually depicts- (a) a minor engaged in sexually explicit conduct; (b) a person appearing to be a minor engaged in sexually explicit conduct; and (c) realistic images representing a minor engaged in sexually explicit conduct. By introducing the definition of child pornography with the word ‘includes’ it means that the listed conducts constituting child 9 ‘Cyber’, Page | 96 AFJCLJ 4 (2019) pornography are not exhaustive. It is submitted that this is improper drafting. It creates uncertainty in the definition of child pornography with the effect that somebody could be arraigned on the ground of an element of the definition of child pornography not specifically stated in section 23(4) of the Act. This would be unconstitutional because Section 36(12) of the 1999 Constitution prohibits punishing a person for an offence that is not clearly defined and the punishment therefor stated in a written law. The elements of the definition of child pornography are hereunder examined in some detail. A minor engaged in sexually explicit conduct The Act in section 58 defines ‘sexually explicit conduct’ to include at least the following real or simulated acts- (a) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, between children, or between an adult and a child, of the same or opposite sex; (b) bestiality; (c) masturbation; (d) sadistic or masochistic abuse in a sexual context; or (e) lascivious exhibition of the genitals or the pubic area of a child. It is not relevant whether the conduct depicted is real or simulated. It is important for this element of child pornography to be fulfilled the involvement of a child while the other party or parties may be adults. A person appearing to be a minor engaged in sexually explicit conduct This refers to a situation where the person engaging in sexually explicit conduct is actually an adult but in the conduct he or she acts like a child. Realistic images representing a minor engaged in sexually explicit conduct A realistic image is an image that represents a natural object or scene almost exactly. In this case the realistic image represents a minor enged in sexually explicit conduct. 3.2 The Offence of Child Pornography under the Cybercrimes Act Providing the offence of child pornography section 23(1) of the Act states: Any person who intentionally uses any computer system or network in or for- (a) producing child pornography; (b) offering or making available child pornography; (c) distributing or transmitting child pornography; (d) procuring child pornography for oneself or for another person; (e) possessing child pornography in a computer system or on a computer-data storage medium: commits an offence under this Act and shall be liable on conviction – (i) in the case of paragraphs (a), (b) and (c) to imprisonment for a term of 10 years or a fine of not more than N20,000,000.00 or to both fine and imprisonment; and (ii) in the case of paragraphs(d) and (e) of this subsection, to imprisonment for Page | 97 EZEANOKWASA: Child Pornography under the Cybercrimes Act 2015 of Nigeria: The Law and its Challenges a term of not more than 5 years or a fine of not more than N10,000,000.00 or to both such fine and imprisonment. The above provision contains both the offence and the punishment to it. Only human persons, and not legal persons like corporations, can commit the offence of child pornography. This follows from the fact that with the possibility of a convict being punished with both imprisonment and fine, a corporation can never be imprisoned even though it can be fined. We look at the offences individually. Producing Child Pornography To produce, according to English Oxford Dictionary, is to make or manufacture something from its components or raw materials.12 Its synonyms include to: manufacture, make, bring about and put together. In the context of cyber child pornography it means intentionally doing what is necessary for creating child pornography using any computer system or network. Production of child pornography can be done individually or collectively. No professional training is required before a production of child pornography can constitute an offence. In the U.S. one Carlos Arcia of Russellvile, 33 years old was sentenced to 22 years in prison by a federal judge for producing child pornography without any question as to his expertise.13 In the offence of producing child pornography just like in the other offences of child pornography, the act constituting the offence must be done intentionally, that is, with mens rea. In other word, offences of child pornography are no strict liability offences. Offering or Making Available Child Pornography To offer or make available child pornography means to present or proffer child pornography. For this offence to be committed it is not necessary for the offer or making available to be made to a particular person. It is sufficient that the offer is made to the public by placing the child pornography, for instance, online. Distributing or Transmitting Child Pornography To distribute means to give something out to several people, or to spread or supply something.14 Giving out or spreading or supplying something to several people can be personally done or through 12 ‘Produce’, Page | 98 AFJCLJ 4 (2019) others. To transmit means to Cause (something) to pass on from one person or place to another.15 Even though the two words are used alternatively in this offence there is a slight difference between them. While both imply passing something to other persons, in transmitting the sender necessarily does not personally pass the message or material but does so through a medium. In transmitting the sender causes the object sent to be passed from point A to B without personally getting to point B. In the context of the offence of child pornography it means that a person can be sued for intentionally distributing child pornography when in actual fact he transmitted it and vice versa. Procuring Child Pornography for Oneself or for Another Person To procure ordinarily means to buy. This provision makes it an offence for a person to intentionally buy child pornography either for himself or for another person. Possessing Child Pornography on a Computer-Data Storage Medium Possession is a technical term in law which has many shades of application. It’s basic meaning is given by the Black’s law dictionary as ‘that condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.’16 Possession has two elements; (a) the physical possession of a thing; (b) the animus possidenti, the intention to appropriate to oneself the exclusive use of the thing possessed.17 It does not necessarily coincide with ownership. A person can have the possession of a thing without being the owner of the thing possessed. Ownership comes with the right to the exclusive use or enjoyment of a thing.18 The difference then between ownership and possession is that while the owner has the right to the exclusive use of a thing, he may not in actual fact be in possession of the thing. On the other hand while a possessor is in physical possession of the thing couple with the required intention of appropriating to himself the exclusive use of the thing, he does not have the right to the exclusive use of it. What this means in the context of the offence of intentionally possessing child pornography is that the offence can be committed even when the possessor is neither the owner of child pornography nor the owner of the computer-data storage medium (plural –media) containing it. The Act does not define computer-data storage medium. It is any technology, including devices and materials, which used to place, keep and retrieve electronic data.19 They include hard drives, compact discs(CDs), flash drives, memory cards, etc. 15 Page | 99 EZEANOKWASA: Child Pornography under the Cybercrimes Act 2015 of Nigeria: The Law and its Challenges 3.3 Defence of Lack of Intention to an Offence of Child Pornography under the Cybercrimes Act The Cybercrimes Act is a national criminal legislation and so defences that generally apply in criminal law in Nigeria apply to the Act and especially to the crime of cyber child pornography. These defences include accident, mistake of fact, extraordinary emergencies, judicial officer, and execution of the law.20 However, the focus in this section is the defence of unintention particularly mentioned by the Act. Section 23(1) makes the possibility of a person being found guilty of any of the five species of the offence of child pornography dependent on the accused doing the prohibited act intentionally. Intentionality in criminal law is a matter of law and not just a matter of fact because some persons are deemed by law to be incapable of intending a crime. Generally criminal liability is not established by only the actus reus, i.e. the actual doing of the act that constitutes the offence, but also there must be the intention for it, mens rea, at the time the action was done. Thus if a person does the act that constitutes offence but does not have the requisite intention, he cannot be found guilty of the offence. This is the case with child pornography. Intention is often very difficult to prove objectively because it resides in the heart and no one can discern what is in a person’s heart. It is usually inferred from the facts of any given situation21 under the presumption that a man intends the natural consequence of his action unless there is evidence to the contrary.22 The following persons have their ability to have criminal intention determined by law. A Child under the Age of Seven Under the Nigerian law a child under the age of seven (an infant) is not criminally responsible for any act or omission under the ground of immaturity.23 He is held by law to be - incapax - incapable of having criminal intention. So, no matter the degree of personal maturity and responsibility of a child under seven, he cannot be found guilty of the offence of cyber child pornography even if caught in any of the species of the offence of cyber child pornography. A child of seven years and above but under 12 years There is a legal presumption that a child of seven years and above but under 12 years is incapable of committing an offence24 and so he cannot be charged for an offence. This presumption is however rebuttable, meaning that he can be held to be capable of committing a given offence if evidence establishes that he has the capacity to know that he ought not to do what he did. However, an exception to this rule concerns boys under the age of 12. Section 30 of the Criminal Code provides 20C. O. Okonkwo, Okonkwo and Naish on Criminal Law in Nigeria, 2nd ed, (Spectrum Law Publishing, 1990) pp. 97-155. 21 Ibid., p.54. 22 Nungu v R., (1953) 14 WACA 379, per Verity C.J. 23 Criminal Code Act, s. 30. Penal Code, s. 50(a). 24 Cf. Criminal Code Act, s. 30; Penal Code, s. 50(b) Page | 100 AFJCLJ 4 (2019) that a boy under 12 is incapable of having carnal knowledge. In other words, a boy under 12 years is held by law to lack the capacity to have carnal knowledge of a person. So, with requisite evidence a child that is seven years and above but under 12 can be held to have intentionally committed the offence of cyber child pornography. The capacity test is subjective. The test inquires if the child knew he was doing something wrong. This time and age children develop fast, it is not uncommon to find children within this age bracket who know that cyber child pornography is wrong. Be that as it may, even if a child within this age bracket is found to have committed the offence, the attitude of the court is always not to punish him like an adult but to seek for his welfare because he is still a minor. Precisely, section 204 of the Child’s Right Act25 prohibits a child being subjected to the criminal justice system and to criminal sanctions. A child 12 years and above but under 18 years From the absolute lack of criminal responsibility given to a child under seven by law, the absolute lack of criminal responsibility for a boy under 12 years with respect to having carnal knowledge of a person, and the qualified lack of criminal responsibility recognized for a child that is seven years and above but under 12 years, it follows that a child above 12 years but under 18 years is held to have criminal responsibility for his actions and omissions. But it is a qualified criminal responsibility since he cannot be tried under the ordinary criminal justice system that tries adults pursuant to the Child’s Rights Act. Nor can he, in accordance with section 204 of the Child’s Rights Act, be subjected to criminal sanctions. A child alleged to have committed an act which would constitute a criminal offence if he were an adult shall be subjected only to the child justice system and processes,26 which seeks not to punish but care for the well being of children.27 4. Challenges to the Cybercrimes Act in Curbing Cyber Child Pornography in Nigeria From the foregoing the law on cyber child pornography is a comprehensive legislation. It covers every phase of the offence of child pornography ranging from the production of it in a computer system or network to the mere possession of it in computer storage medium. The law puts in place also a heavy punishment regime for any conviction. Yet, this good effort of the legislature does not automatically translate to making the law an effective one on the control of cyber child pornography in the computers and android phones of people in Nigeria. Apart from the internal coherence of a piece of law, the question of its effectiveness or otherwise embraces inextricably the enforceability and enforcement of the law. For instance a legislation that the receiving community rejects becomes unenforceable regardless of the good vision and formal coherence of the legislation. An instance is the 25 No. 26 of 2003. 26 CRA, s. 204. 27 CRA, s. 2. Page | 101 EZEANOKWASA: Child Pornography under the Cybercrimes Act 2015 of Nigeria: The Law and its Challenges Osu-caste law of the 1950s in Nigeria which sought to abolish the osu-caste system in the then Eastern Nigeria by force of law. It was enacted by the legislature but was not accepted by the people. At the same time a law can be enforceable but still lacks enforcement. This occurs where the receiving community does not reject the legislation but it remains unenforced due, for instance, to the inefficiency or incompetence of the enforcement agency. The Cybercrimes Act is not rejected by Nigerians. What awaits it is effective enforcement and this will be done when the key challenges facing the Act are addressed. Porous Nature of the cyberspace The cyberspace is a global internet network that allows a person from the remotest part of one content to freely access information in the remotest part of another continent.28 The cyberspace is a virtual world that is not tangible unlike the physical world where you see things move around and know where they took off from and where they end. Due to the fact that access to information in it is global, free and virtual, regulating child pornography in it is saddled with many legal complexities. While child pornography may flood the computers and android phones in Nigeria, their producers may be outside the territorial boundaries of Nigeria. Under the doctrine of territorial sovereignty of a country every country is independent of the other and for that none can ordinarily enter another to make an arrest. Making such an arrest is not, in any case, impossibility, but the complex and cumbersome international legal protocol for it is not what a country would be disposed to go through any single time that it finds an outsider polluting the internet inside the country with child pornography. Even inside Nigeria the regulation of the production and distribution of child pornography is not any easier given the human rights issues involved on the one hand and the fact that there are techniques and means like the encryption technology by which criminal materials can be concealed in the internet without being detected. Lack of Adequately Trained Police for Cybercrimes Successful prosecution of a person accused of cyber child pornography is a matter that comes within the Nigerian criminal justice system in which the police has a key role to play as the agency entrusted with the task of investigating crimes. Unless crimes are investigated and investigated properly prosecution of an offender will be an effort in futility. In our adversarial criminal justice system the accused is presumed innocent until proven guilty by the prosecution and the standard of proof is 28 In line with this fact Stella A. Olubukola wrote that ‘the advent of computers and the internet has opened a vast array of possibilities for the young and the old in the international community to have access to the world from their homes, offices, cyber cafes and so on.’ Stella A. Olubukola, ‘Cybercrime and Poverty in Nigeria’, Canadian Social Science Vol. 13, No. 4, 2017, pp. 19-29. Page | 102 AFJCLJ 4 (2019) beyond reasonable doubt. Doing this in matters of cyber child pornography requires the investigating police officer to be technically well trained in cybernetics in order to produce the necessary evidence for the prosecution of the matter. This calls into question the preparedness of the Nigeria police in cybernetics in order to effectively enforce the law on cyber child pornography. The Nigeria Police is an institution under the Nigeria Constitution and the Police Act provides for its functions. While there is a Bill at the National Assembly for the repeal of the extant 1945 Police Act, until the Bill is passed, the extant Act governs the functioning of the Nigerian Police. One of the functions of police as specified in section 4 of the Police Act is ‘…detection of crime’. This is a general function of the police and therefore demands the training of police to be able to detect crime at any time and of any form. In this era of ICT (Information and Communication Technology) and particularly as Nigeria has gained notoriety on the issue of cybercrimes not excluding cyber child pornography, it is expected that the Nigerian policemen and women should be well trained for cyber policing. This expectation is betrayed if one takes a look at the 12 months training curriculum for a cadet officer as provided by article 55 (1) of the Nigerian Police Regulation.29 The curriculum includes: (a) six months basic training in law and foot drill; (b) two weeks attachment for training in practical police work at a police station; (c) one month leadership and citizenship training course at a recognized centre; (d) one month first aid lay lecturers course; (e) three months advanced training in law, foot drill, and the duties of his future substantive rank; (f) a final period of attachment to a police formation for further training in practical police work, of a duration to be determined by the Inspector – General. Nowhere in this curriculum is anything said about cybernetics and cyber forensics. This absence is not limited to the training of a Cadet Officer. It is replicated in the training of Special Constabulary (special unit of the Nigerian Police) and their curriculum is restricted to physical training, foot drill, criminal law, criminal procedure, evidence, practical police work, musketry and revolver training, police discipline, and first aid.30 With this lack of training of the police in internet matters and forensics, the Latin adage, nemo dat quod non habet – no one gives what he does not have, applies in the ability of the police to investigate cyber child pornography in order punish the crime as provided by the Cybercrimes Act. 29Nigerian Police Regulation, 1968. 30 Special Constabulary Regulation 1966, article 14 (1) cited in I K E Oraegbunam, ‘The Nigeria Police and Problems of Cybercrime Investigation: Need for Adequate Training’, 18 Nigerian L.J. 1 (2015). Page | 103 EZEANOKWASA: Child Pornography under the Cybercrimes Act 2015 of Nigeria: The Law and its Challenges Lack of Awareness of the crime of Cyber child pornography Creating awareness of the crime of child pornography to the wider public is crucial to preventing the offence. The aim of the Act is not simply to prohibit and punish its violators of the law on child pornography but also to prevent, in the first place, the violation. The full title of the Act contains the idea of prevention. It is: Cybercrimes (Prohibition, Prevention, etc) Act, 2015. The reference to prevention in the title is not isolated, it is also contained in the long title of the Act: ‘An act to provide for the prohibition, prevention, detection, response, investigation and prosecution of cybercrimes; and for other related matters, 2015.’ It is equally contained in the objectives of the Act which include to: ‘(a) provide an effective and unified legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria’. For many reasons prevention of child pornography is more preferable to the State than the punitive objective of the Act. Prevention saves the State from having children that are sexually exploited through pornography. It saves the State of the costs of having to investigate the commission of the crime and having to keep convicted people in penitential institutions. Public enlightenment or awareness creation is a veritable tool for preventing social vices such as cyber child pornography. In his paper titled ‘Prevention of Sexual Assault in Nigeria’ Eze identified public enlightenment as one of the responsibilities that are imperative for preventing sexual assault in Nigeria. Citing Nwosu,31 he wrote,’ Public enlightenment has been shown to be a critical tool in changing behaviour, attitude, beliefs and value system of people.’32 He wrote further, ‘Therefore there should be intense public enlightenment and education at schools, social clubs, cultural group gatherings, churches, mosques and through the media, to first of all, demystify the myths about sexual assault.’33 On how to prevent sexual assault on campuses in the U.S. and support those who are impacted, Rich argues that it is critical that students, educators and the society engage in an open and honest discussion about sexual assault, sexual abuse and sexual violence.34 Like in Nigeria sexual abuse is also a crime in the U.S., however, Rich believes that prevention yields better results for both individuals and society and the way to go about it is open discussion, which is a variant of public enlightenment or awareness creation or even public education. Unfortunately in Nigeria public awareness about internet child pornography as a cybercrime is low. While writing this paper I surveyed internet literatures that named kinds of cybercrime in Nigeria. I surveyed the first seven articles and my finding is that none included child pornography as a kind of cybercrime. Only two 31 IE Nwosu, ‘Mobilizing people’s support for development: an analysis of public enlightenment campaigns in Africa’ Africa Media Review. 1986;1(1 ):48–65. 32 UO Eze, ‘Prevention of Sexual Assault in Nigeria’, Ann Ib Postgrad Med. 2013 Dec; 11(2): 65–70. 33 Ibid. 34 B Rich, ‘Sexual Abuse on Campus: Awareness and Prevention’, Page | 104 AFJCLJ 4 (2019) however mentioned pornography generally. All the seven articles focused on financial and social cybercrimes such as credit card crimes, cyber-stalking etc. What this means is that many Nigerian scholars and researchers are yet to appreciate child pornography as a cybercrime and so they do not talk write about it. From the perspective of creating awareness of the crime of cyber child pornography in order to prevent or curb it I discovered a worrisome behaviour from google. Perhaps this attitude may have been only in Nigeria. Once there is the phrase ‘child pornography’ in a google search what comes out is a statement that no match is found. This seeming blanket blocking out of information on child pornography by google may have been designed to prevent cyber child pornography. Unfortunately it indiscriminately frustrates legitimate studies and/or awareness of the subject in order to address the problem more meaningfully. Such a blanket blocking out could even promote clandestine interests in it. The point we are making is that awareness is needed on the ills and problems of cyber child pornography as a means of preventing it. Unemployment Cybercrime has been associated with unemployment. For Pollock, high unemployment causes cybercrime.35 On the part of Ekeji, cybercrime can be associated with high rate of unemployment, harsh economic conditions, and poor educational system.36 Shehu wrote: ‘With the high rate of unemployed computer literates among the over 20 million redundant Nigerian youths, it is very easy for them to engage in criminal activity in order to sustain their livelihood.’37 A corollary to unemployment is poverty because an unemployed person is necessarily poor. This however does not mean that a poor person is necessarily unemployed. Okebukola attributes cybercrimes in Nigeria to poverty.38 According to the Nigerian Bureau of Statistics, Nigeria’s unemployment rate increased from 18.8 per cent in the third quarter of 2017 to 23.1 per cent in the third quarter of 2018.39 Meanwhile youth unemployment in Nigeria came down to 36.5 percent in the third quarter of 2018 from 38 percent in the second quarter of 2018.40 Youth unemployment rate in Nigeria leveled at 23.63 35 D. Pollak, ‘High Unemployment Causes Cybercrime’, Page | 105 EZEANOKWASA: Child Pornography under the Cybercrimes Act 2015 of Nigeria: The Law and its Challenges percent from 2014 until 2018, reaching an all-time high of 38 percent in the second quarter of 2018 and a record low of 11.70 percent in the fourth quarter of 2014.41 All this statistics indicates that really there is high unemployment in Nigeria whether on the part of the general public or on the side of the youth. Associating cybercrimes to unemployment in Nigeria has tended to be mainly in relation to financial or economic cybercrimes like credit card frauds and the other financial malfeasance of the yahoo boys because many writers in Nigeria see cybercrimes only in this contexts. For instance Shehu reasoned that cybercriminals engage in their nefarious activities to earn a living. This notwithstanding unemployment is closely associated with cyber child pornography. Studies have found depression to be a significant factor for cyber pornography.42 In a survey study completed by Weaver et al. (2011), five-hundred and fifty-nine Seattle Tacoma (U.S.) internet-using adults were surveyed on their sexually explicit media use behavior (SEMB).43 The respondents were organized as either SEMB users or SEMB non-users. Participants in the study who reported as SEMB users had significantly higher reports of depressive symptoms that SEMB non-users. Unemployment is a recognized for depression. In a study in the U.S. on unemployment and depression among emerging adults in 12 States, the result is that almost 12% of emerging adults were depressed and about 23% of them were unemployed.44 The study also found that the odds of depression were about 3 times higher for unemployed than employed emerging adults. These are not isolated findings. The finding of a research in U.S. by Gallup on how unemployment and depression fit together is that: ‘About one in five Americans who have been unemployed for a year or more say they currently have or are being treated for depression -- almost double the rate among those who have been unemployed for five weeks or 41 Ibid. 42B Scott, ‘Aggression and Depression Factors in Pornography Use of College Aged Individuals’ Page | 106 AFJCLJ 4 (2019) less.’45 The point in all this is that unemployment drives people to cyber-pornography. This it does by driving them into depression. It does not seem that people who are given to pornography distinguish between adult and child pornography. 5. Conclusion and Recommendations The Act is comprehensive in prohibiting and punishing the offence of cyber child pornography. It prohibits every phase in the life of child pornography, from its production to the mere fact of possessing it in a computer-data storage medium. The punishment is also heavy in both terms of imprisonment and fines. This notwithstanding, the core interest of the legislation is not in punishing offenders than in protecting child from sexual abuse, molestation and exploitation. It is for this that part of the objectives of the Act is to prevent cyber child pornography. This is more wholesome in addressing cyber child pornography. To do this and do it effectively factors that aid and abet cyber child pornography such as unemployment and lack of awareness about cyber child pornography and its deleterious effects should be addressed by government. The police whose duty it is to investigate the commission of the offence should be well trained in cyber technology in order for offenders to be successfully prosecuted. 45S Adams, ‘How Unemployment And Depression Fit Together’, Page | 107 UWAEZUOKE: The Pacta Sunt Servanda Solace for Persons Detained Indefinitely in Nigeria on Suspicion of Committing Capital Offences THE PACTA SUNT SERVANDA SOLACE FOR PERSONS DETAINED INDEFINITELY IN NIGERIA ON SUSPICION OF COMMITTING CAPITAL OFFENCES* Abstract Nigerian Constitution still has room for detention of persons reasonably suspected of committing capital offences for an indefinite period of time. A number of reasons are often proffered for this position. These reasons can be broadly categorized into State security and public order. These have strong base in the concept of sovereignty. However, from practice we know that there is no state that can claim absolute sovereignty in domestic and international matters. A concrete evidence of this restriction is the principle of Pacta sunt servanda that requires states to observe, in good faith, treaties they had ratified. Nigeria has ratified at least a treaty whose provisions run contrary to the constitutional provision permitting persons suspected of committing capital offences to be detained indefinitely. We contend that Nigeria, in compliance with this treaty, has to amend the provisions of her constitution, particularly on this issue, because of the doctrine of Pacta sunt servanda. Keywords: Pacta Sunt Servanda, Persons Detained Indefinitely in Nigeria, Capital Offences, Solace, Suspicion 1. Introduction: (Dis) Respect and (Non) conformity to international obligations by a State can, surprisingly, play a crucial in determining the length of time a person spends in incarceration before trial within a state. This is true for persons arrested on reasonable suspicion of committing capital offences in Nigeria. Such persons labour under a disability as enshrined in the Constitution which elaborated on this disability1. There are apparently some meta-constitutional reasons for this disability which include overriding concern for state security 2 and public order. The usual arguments in this regard span the possibility of committing additional crime thereby infringing on the rights of others if released and also the possibility of their release being detrimental to the ability of the State to carry out its investigations.3 We, however, argue that the inclusion of the provision placing persons arrested under reasonable suspicion of committing a capital offence under a disability under the Constitution is contrary to Nigeria’s international law obligations particularly relating to the International Covenant on Civil and Political Rights. We advocate a re-evaluation of the continued sustenance of this provision in the Nigerian Constitution. We examined the provisions of the Constitution on this issue. *Chukwunonso Nathan UWAEZUOKE, Senior Lecturer, Faculty of Law, Chukwuemeka Odumegwu Ojukwu (formerly Anambra State) University, Igbariam Campus. Email: [email protected]. Telephone: 08036764064. 1Section 35 (7) (a) of the Constitution. 2 Also referred to as national security 3 See for instance www.britannica.com/topic/preventive-detention (accessed 15/3/2017) Page | 108 AFJCLJ 4 (2019) We also critically analyzed the argument in support of this practice and then set forth of our position on this issue. Our position formed the basis of conclusions we arrived in this discourse. 2. Constitutional Provisions and Possible Implications on Issue of Pre-Trial Detention of Persons Reasonably Suspected of Committing Capital Offence Constitutional Provisions Section 35 (7) (a) of the 1999 Constitution of Nigeria4 provides for arrest and detention based on reasonable suspicion that a person committed a capital offence. For better appreciation, it might be necessary to reproduce the section in full: (7) Nothing in this section shall be construed (a) in relation to subsection (4) of this section as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence and Subsection (4) of section 35 provides: Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if not tried within a period of- (a) Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or (b) Three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may brought before him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. Subsection (5) clarified the expression ‘reasonable time’ to mean: (a) In the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and (b) In any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable Page | 109 UWAEZUOKE: The Pacta Sunt Servanda Solace for Persons Detained Indefinitely in Nigeria on Suspicion of Committing Capital Offences Further subsection 1 (c) of section 35 provide; Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law: (c) For the purpose of bringing him before a court in the execution of the order of a court or upon reasonable suspicion of having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence5 Views of the Courts on Import of Section 35 (4) and (5) of the Nigerian Constitution The apparent import of section 35 (7) of the Constitution therefore is that subsections (4) and invariably section (5) do not apply in the case of persons arrested or detained upon reasonable suspicion of having committed capital offence. Those who are detained but not on reasonable suspicion of committing a capital offence enjoy certain privileges which apparently are not enjoyed by those arrested or detained on reasonable suspicion of having committed capital offence. First, section 35 (4) (a) and (b) appears to confer pre- trial benefits to suspects6who are not arrested or detained on suspicion of committing non-capital criminal offence. Some of these benefits have been explained by Nigerian courts. In Commissioner of Police v. Amalu7 Achi- Kanu J. after drawing a distinction between ‘suspects’ and ‘accused’ persons concluded that section 32 (4) applied only to ‘suspects’ and not ‘accused persons’ who, he felt, were regulated by the proviso to section 32 (1) of the 1979 Constitution. The apparent reason for the ‘suspects’ enjoying the benefits in section 32 (4) was made clearer by Idoko J in Onu Obekpa v. Commissioner of Police,8 thus, As it appears the spirit behind the provisions in section 32 (4) (a) and (b) of the Constitution9 is to keep an accused person10 out of incarceration until found guilty through the process of court trial. It is a conditional privilege which he is entitled to under the Constitution. The reason for such privilege is obvious. It allows those who might be wrongly accused to escape punishment which any period of 5Italics supplied. The italicized clause fall into the category often referred to as ‘Preventive Detention’. Preventive Detention is a variant of the genre of detention enshrined in section 35 (7) (a) of the Nigerian Constitution. Both involve detention of persons not convicted by any court of law. 6This category of persons immediately becomes ‘accused persons’ when arraigned before a court. This distinction was highlighted by Achi-Kanu J, although in our view in less distinct manner, in the case of C.O.P v. Amalu (1984) 5 N.C.L.R p. 443. 7 (1984) 5 N.C.L.R p. 443. Also see footnote 8. 8(1981) 2 N.C.L.R 420. 91979 Constitution. The provision in this section is the same with that of section 35 (4) of the 1999 Constitution. 10Idoko J used this term not in the restrictive sense Achi-Kanu used it. It appears that from his perspective, this term cover both those Achi-Kanu termed ‘suspects’ and ‘accused persons’ Page | 110 AFJCLJ 4 (2019) imprisonment would inflict while awaiting trial: the stay out of prison guarantees easy accessibility to counsel and witnesses and ensures unhampered opportunity for preparation of the defence. Of much further advantage in this regard is this fact that unless the right to bail or to freedom before conviction is preserved, protected and allowed the presumption of innocence constitutionally guaranteed to every individual accused of a criminal offence would lose its meaning and force11 Also, section 35 (5) of the 1999 Constitution12 has been pronounced by the courts. In Augustine Eda v. The Commissioner of Police, Bendel State13 the appellant, Mr. Augustine Eda, was arrested and detained by the police on suspicion that he was involved in stealing some property belonging to Dumez International Social Club Organisation, Benin City of which he was the General Secretary. The appellant was detained by the police from Friday, August 22, 1980 to Tuesday, August 26, 1981 when he was taken on bail by one Etim Okon Okpor. After his release from police detention, the appellant sued the police claiming compensation for unlawful detention and public apology from the respondent for breach of his constitutional right under section 32 (1)(c), (4) and 5 (a) of the 1979 Constitution14. The learned trial judge, after taking evidence, on the request of counsel to both parties raised a number of questions which were referred to the Court of Appeal under section 259 (2) of the 1979 Constitution15. One of the questions was whether or not if a person arrested and detained by the police is able to procure a surety to take him on bail it is a breach of section 32 (5) of the 1979 Constitution and therefore unconstitutional to retain him in custody in any event without bringing him before a court of competent jurisdiction within the period stated in section 32 (5) of the 1979 Constitution16. In his leading judgment, Omo JCA, answered this question thus17, Whenever the police have performed their duty of offering bail to a person arrested or detained, the responsibility for getting a surety or satisfying the conditions prescribed for his bail immediately devolves upon that person and any further period he remains in custody is brought upon himself by that person for which the police are not liable as such further period cannot be rightly regarded as unlawful detention by the police, who, by the offer of bail have, as matter of law (to wit ‘…procedure permitted by law’) already released him from their custody subject to certain conditions being fulfilled by that person…of course, it 11 (1981) 2 N.C.L.R pp. 420 – 422. 12 Section 32 (5) of the 1979 Constitution. 13 (1982) 3 N.C.L.R p. 219 14 Same with sections 35 (1)(c), (4) and 5 (a) of the 1999 Constitution. 15 Now section 295 (2) of the 1999 Constitution. 16 (1982) 3 N.C.L.R 219 at 222. 17 S.J. Ete JCA, A.G.O. Agbaje JCA, R.O. Okagbue JCA, and U. Mohammed JCA all concurring. Page | 111 UWAEZUOKE: The Pacta Sunt Servanda Solace for Persons Detained Indefinitely in Nigeria on Suspicion of Committing Capital Offences need not be doubted that how that person gets a surety or satisfies the conditions for his bail are his responsibility only18 He then went on to clarify, I must add in order to make this answer complete in relation to the question, that the police are obliged to take a person arrested or detained to a court of competent jurisdiction within a radius of 40 kilometers as in this case, Benin City, from the place where he was arrested within one day and what is more important, that the police can only bring any person in custody before a Court of Law during normal sitting hours on working days of the week19 In Chigbu v. Economic and Financial Crimes Commission (EFCC) & Ors20 the applicant was arrested by EFCC officers on 30th April 2010 and later charged to court of applicant was arrested and detained by the 1st respondent between 30th April to 14th May, 2011 based on the allegations contained in the petition. There was nothing showing that the applicant was granted bail or charged to any competent court within this period of about 14 days that he was detained. The 1st respondent argued that the arrest and detention was legal, as upon the arrest of applicant, he was taken to Magistrate Court Life Camp, Abuja on 5th May 2010 where he was ordered to be remanded in EFCC custody until 20th May, 2010 to enable 1st respondent conclude its investigation. The applicant argued that he was never taken to any court when he was arrested and that the remand warrant was never issued by the said Chief Magistrate because he was not in charge of the Life Camp Magistrate on the 5th of May when it was allegedly and purportedly signed and that even on the said date of 5th May, 2011, courts or judiciary staff were on strike. In response the presiding Judge, Justice A.I. Kutigi posited, Now, the remand order Exhibit EFCC7 was only issued on 5th May, 2010 to last till 20th May, 2010. It is clear that a challenge of the period of the detention covered by this remand order as stated earlier is not a subject of review here. This however, is not the end of the matter because the applicant was arrested on 30th April, 2011 and the remand order was only obtained on the 5th May, 2011 about 4 or 5 days later. There is absolutely no explanation by the 1st respondent for these days before the remand order was obtained. Indeed the affidavit of 1st respondent appear to have glossed over this material point or issue, as there is nothing before me as to why applicant was not charged or granted bail before the remand order was obtained21. 18 (1982) 3 N.C.L.R p. 219 at 228. 19 Ibid. 20 FCT/HC/M/5678/10 (Unreported) 21Ibid, p.11 Page | 112 AFJCLJ 4 (2019) After recapping the provisions of section 35 (4) & (5) of the 1999 Constitution, the learned trial judge continued, In subsection 5(a), the reasonable time contemplated by the constitution is stated to be a ‘period of one day’ and there is no discretion under this ambit of subsection 5(a) unlike under subsection 5(b) which provides a period of two days or such longer period as the court may consider reasonable in the circumstances. From the unchallenged facts in this case, I hold that under subsection 5(a) that applicant should have been arraigned before a court of law within a day of his been arrested because I take judicial notice of the fact that there are courts of competent jurisdiction in F.C.T. Abuja within a radius of forty kilometers from respondents office in Abuja where applicant was detained. The argument by 4th respondent that applicant ought to have mentioned the court within the forty kilometers radius for him to enjoy the benefit lacks value. I don’t see any necessity or requirement of stating the self evident22. 3. Justifications for Constitutional Position on Pre-Trial Detention of Persons Suspected of Committing Capital Offence under Nigerian Constitution Justification from the Provisions of Nigerian Constitution The Constitution offers no direct clue on the reason for the apparent dichotomy in the duration of detention of those arrested or detained apparently based on reasonable suspicion of committing capital offence and those arrested or detained but not based on reasonable suspicion related to capital offence. It is noteworthy that this dichotomy was introduced first in the 1979 Constitution of Nigeria23 but it was not part of the 1963 Constitution.24 This, notwithstanding, Nwabueze maintains that someone held upon reasonable suspicion o having committed a criminal offence is still entitled to be informed of the facts and grounds for his detention and that failure to do so invalidates the detention.25 Justification on other grounds Pre-trial indefinite detentions are not peculiar to Nigeria.26 There are pervading grounds for such indefinite incarcerations which most times bother on issues of ‘state security’ or ‘national security’ 22Ibid, p12. 23 Section 32 (7) of the 1979 Constitution. 24 Section 21 of the 1963 Constitution. 25 B.O. Nwabueze, The Presidential Constitution of Nigeria (C. Hurst & Company, 1982) p. 427. 26The recent global battle against terrorism has acerbated this practice in many climes. Page | 113 UWAEZUOKE: The Pacta Sunt Servanda Solace for Persons Detained Indefinitely in Nigeria on Suspicion of Committing Capital Offences and public order27. This term ‘national security’ means so many things and it has even been acknowledged that there is no single universally accepted definition of this term and variety of definitions provide an overview of the many usages of the concept.28 An apt definition in terms of the perspective of this discourse is offered by Upeka Premaratne who views national security as ‘Safeguarding the sovereignty, territorial integrity, citizenry and socioeconomic functionality of a nation from aggressor intent on undermining a particular valued aspect of a nation through violent or unjust means’29 Central to modern understanding of national security is the idea that to be truly secure, a nation needs other forms of security and not just military security.30 It has been posited that from academic debates, two elements of state security can be drawn out. The first bothers on military defence and the importance of territorial sovereignty while the other bothers on protection of democratic values.31 The interpretations of ‘democratic values’ by states tend to include what is termed political and economic ‘interest’32. On the other hand, Public order, used in the sense of crime, is said to mean those ‘crime which involve acts that interfere with the operations of society [in] the ability of people to function efficiently’33 Such crimes are distinguishable from political crime in the sense that in the case of public order crimes it is cumulatively the community that suffers, whereas in political crimes, the state perceives itself to be the victim and criminalizes the behaviour it considers threatening.34. Concrete expression of issues of public order35 as can be found in justification for pre- trial detention include, as mentioned earlier36, such issues as the possibility of their release being 27United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘Report on the Practice of Administrative Detention submitted by Mr. Louis Joinet, E/CN 4/Sub 2/1989/27 (6 July 1989) 3 cited in Claire Mackem, ‘Preventive Detention and the Right of Personal Liberty and Security under the International Covenant on Civil and Political Rights, 1966’ https://ilsa.org/jessup/jessup16/batch%202/MackenDEtention.pdf p. 2 (accessed 16/4/2017). Article 22 (4) –(7) of the Indian Constitution of 1950 lists the circumstances that will warrant Preventive Detention to include State Security, Maintenance of Pubic order, Maintenance of supplies and essential services and defence and Foreign affairs or security of India (blog.ipleader,in/Preventive-detention-far-justified (accessed on 17/4/2017) 28 en.m.wikipedia.org/wiki/National_security (accessed on 15/4/2017) 29‘Reconciling the Irreconcilable: The Use of Reasonable Consequentialism for the Conundrum of National Security and Fundamental Rights’, ibid. 30Ibid. 31Rightsni.org/2013/05/national-security/ (accessed on 15/4/2017) 32 Ibid. 33 En.m.wikipedia.org/wiki/Public-order_crime (accessed 17/4/2017) 34 Ibid 35 And sometimes national security 36 Fn 5. Page | 114 AFJCLJ 4 (2019) detrimental to the ability of the State to carry out its investigations and also the possibility of the arrested person committing a further crime if released.37 4. Our Position on Constitutional Provision on Pre-Trial Detention of Persons Suspected of Committing Capital Offence under the Constitution Response to the Justification of the Constitutional Position on Pre-Trial Detention of Persons Suspected of committing Capital Offence under the Constitution The two planks38 supporting the argument on this issue essentially rest on the concept of state sovereignty. But as has been observed, the term ‘sovereignty’ has become ‘misunderstood and misused’.39 It is contended that historically sovereignty was viewed as a method of facilitating and maintaining peace and was born at the Peace of Westphalia.40 The event at Westphalia culminated in the belief that state sovereignty is about non-intervention in the internal affairs of states and also is the best policy to promote or, at the very least, maintain international peace.41 However, it has been contended that this not so due to the original meaning of the word ‘Sovereignty’, which is simply superiority without any connotation of absoluteness or illimitability42 and that the fact is that modern sovereigns have never had total license or absolute authority over everything.43 And also that even from 164844, sovereigns have been restricted in what they could legitimately do even to their own nationals in their own realms and also under international law.45 On these bases, it is argued that what modern sovereigns have is Supremacy46 which in effect enables the state to control the implementation of things like international human right norms within its jurisdiction.47 In this regard, it is apparent that cooperation of a state is necessary in order to implement international human rights laws within her territory. It will not be in the interest of a state to refuse to do so as refusal to 37These grounds are also used by Nigerian courts in determining whether or not to grant an accused person bail during trial. 38State security and Public order 39Jack Donnelly, ‘State Sovereignty and Human Rights’ mysite,du.edu/~jdonnell/papers/hrsov%20v4a.htm (accessed on 17/4/2017) 40Brad Ledgerwood ‘The Antagonistic Relationship between Sovereignty and Human Rights’ atlismta.org/online-journals/human-security/the-antagonistic-relationship-between-sovereignty-and-human- rights (accessed on 17/4/2017) 41Ibid 42Jack Donnelly, Fn 39. 43 Ibid 44Treaty of Westphalia 45 Footnote 39. 46Ibid. Donnelly, here, contends that ‘Supremacy’ means that one is subject to no higher authority, not that one’s authority is absolute and unlimited’ 47Ibid Page | 115 UWAEZUOKE: The Pacta Sunt Servanda Solace for Persons Detained Indefinitely in Nigeria on Suspicion of Committing Capital Offences cooperate will be viewed as a violation of the state’s obligation in international law. In view of this, security and public order48 will not be considered valid reasons for the failure of a state to implement an international law obligation49 within her territorial jurisdiction. Our Position The provisions of section 35 of the Nigerian Constitution and indeed the entire Chapter 4 on Fundamental Rights are said to be inspired by the Universal Declaration of Human Rights of 194850 although historically it was included as result of recommendations of Nigerian Minorities Commission, headed by Sir Henry Willink in 1957.51 It is suggested that many rights enshrined in the Universal Declaration of Human Rights, though a non-binding treaty in international law, has acquired the status of jus cogens.52 It has even been asserted that the entire UDHR has acquired the status of jus cogens in international law.53 However it is contended that there is no universal acceptance of which human right norms constitute Jus cogens. 54 Jus cogens are, simply put, a fundamental principle of international law that is accepted by the international community of states as norms from which no derogation is permitted.55 In respect of the right to liberty, the UDHR simply states, ‘Everyone has the right to life, liberty and security of person’56. We are not told the meaning of ‘liberty’, however Nwabueze feels that there are two models57 of constitutional protection of individual liberty: the United States Bill of Rights model and the model of Bills of Rights derived from the UDHR 194858 and that the Nigerian Constitution, like that of other Commonwealth countries, follows this pattern.59 Nwabueze, then, contends that, based on Convention on Civil and Political Rights (1976), that the term ‘liberty’ in UDHR should construed in terms of liberty of the person and movement only.60 He 48 Or any other grounds the state may rely on. Indeed, 49 Whether in the form of jus cogens or treaties. 50 B.O. Nwabueze, Ideas and Facts in Constitution Making (Spectrum Books Ltd, 1993) p.104. 51E. Michael Joye and Kingsley Igweike, Introduction to the 1979 Nigerian Constitution, (MacMillan Press Ltd, 1982) p. 292. 52www.article12.org/wp-content/uploads/2014/12/INTRODUCTION-TO-INTERNATIONAL-HUMANS- RIGHTS-LAW.pdf (accessed on 21/4/2017). 53 Outlawbd.blogspot.com.ng/2011/11/universal-declaration-of-human-rights-.html (accessed on 21/4/2017) 54En.m.wikipedia.org/wiki/Premptory_norm (accessed 21/4/2017) 55Ibid 56 Article 3 of UDHR 57 Liberty is thought under this model to embrace all of a man’s rights and interest in ‘free society’. However the UDHR does not have same amplitude (Fn 52) 58 Footnote 52.p. 103 59 Footnote 52. 60Ibid, p. 104. Page | 116 AFJCLJ 4 (2019) finds support for this in Articles 9, 10 and 12 of that Convention.61 Apart from these, Nigeria has ratified the Convention.62 Article 26 of Vienna Convention on the Law of Treaties provides that every treaty in force is binding upon the parties to it and must be performed by them in good faith.63 The good faith basis of treaties implies that a party to the treaty cannot invoke provisions of its municipal or as justification for a failure to perform.64 The only compelling limit to Pacta sunt servanda is jus cogen.65 Article 9 of the Convention, provides, in part, 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested or detained on a criminal charge shall be brought promptly66 before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment67. 3. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. It is our view that section 35(7)(a) does not conform68 to the italicized portions of the Covenant. The word ‘promptly’69 clearly displays a departure from the position of indefiniteness as to time of regaining liberty in respect of persons arrested or detained on suspicion of committing capital offence 61Ibid. 62 On 29 July 1993. 63Also known as Pacta sunt servanda. See also H. Wehberg ‘Pacta Sunt Servanda’ (1959) 53(4) The American Journal of International Law 775 cited in en.m.wikipedia.org/wiki/Pacta_sunt_servanda (last accessed 21/4/2017) 64Ibid. 65Ibid 66Italics supplied 67Italics supplied 68In substance and import 69Italicized in Article 9(3). The adverb ‘Promptly’ suggests, among others, ‘immediately’, ‘instantly’, ‘quickly’,‘speedily’ and other similar words (available at www.thefreedictionary.com/promptly (accessed 22/4/2017) Page | 117 UWAEZUOKE: The Pacta Sunt Servanda Solace for Persons Detained Indefinitely in Nigeria on Suspicion of Committing Capital Offences under Nigerian Constitution. The other italicized portion of the reproduced fraction of the Covenant70 suggests, in our view, that a person arrested or detained on suspicion of committing a capital offence is still entitled by international standards71 to prompt release on bail.72 If Nigeria were to respect Pacta sunt servanda principle of international law in respect of this Covenant, then we should tailor our position especially section 35 (7) (a) of the Constitution to conform to international standard.73 5. Conclusions As we have demonstrated in this discourse, the case for the provision of section 35 (7) (a) still subsisting in our Constitution remains firmly anchored on pillars of state security or public order. Interestingly both pillars find firm root on the issue of state sovereignty. This concept is propped by the idea of the supremacy and dominance of the state over all entities within and outside its domain. While we concede that sovereignty implies supremacy of a state over all entities within and outside it, we note that modern sovereigns have never had total license or absolute authority over everything. One limitation on modern sovereigns includes the prescription of international law on various subjects. A principal principle of international law that limits sovereignty is the concept of Pacta sunt servanda which requires the states to observe the treaties they have ratified in international law in good faith. The provision of a key international document on human rights74 which Nigeria has ratified is at variance with the provisions of section 35 (7) (a) of the 1999 Constitution. Nigeria having ratified ICCPR is bound under the principle of Pacta sunt Servanda to ensure that her municipal law75 do not contradict the provisions of ICCPR. 70Article 9 (3). 71 Represented by the Covenant. 72 Subject to conditions that will ensure he appears for trial. 73Particularly in accordance with the import of Article 35 (7)(a) of the Covenant. 74International Covenant on Civil and Political Rights (ICCPR) 75In this instance section 37(7)(a)of the 1999 Constitution. Page | 118 AFJCLJ 4 (2019) THE ‘REASONABLE MAN’ IN THE LAW OF CRIME AS A ‘FADING’ LEGAL CONCEPT? AN OVERVIEW OF THE ROME STATUTE, THE NEW YORK PENAL CODE AND THE CODES OF STATES OF NIGERIA* Abstract The common law concept of the ‘reasonable man’ was a legal device meant to ascertain the honesty of belief in pleas of mistake among other defences in criminal law1. There are juristic opinions against the application of the concept2. Using courts’ decisions, statutory law, and juristic arguments in articles among others, this work finds out that though the tongues of statutes differ in their requirements for the defence of mistake among others, they find unity in courts’ decisions that are still rooted in the reasonable man concept. It is recommended that ‘reasonable man’, ‘reasonable grounds’ and ‘reasonable belief’ should be used as mere English words to avoid the rigors associated with the application of the common law concept. Keywords: Supernatural, witchcraft, unreasonable, reasonable man, juju, belief. 1. Introduction/Conceptual Frame Work The concept of the reasonable man in the law of crime has been a subject of a lot of contentions by jurists especially in the areas of the defences of mistake, private defence and provocation.3 This imaginary personality4 has mostly been used as an instrument to determine the justifiability or otherwise of defendants’ claims in defences of mistake. By this means, a judge sitting alone or a jury determines whether a defendant’s claim of honest belief had substance or not5. It is for this reason that codes of criminal conducts in some jurisdictions require that a defendant’s honest belief in a defence of mistake must be on ‘reasonable grounds’6. *Musa Y. SULEIMAN, PhD, legal researcher and Legal Practitioner , Kuje, Abuja: [email protected] 08029717918/08038431006 1Parker L.J. in R. v. King [1964] 1 Q.B. 285 at 293 maintained that: ‘Honest belief is not enough, honest belief must be on reasonable grounds.’ 2These shall be considered presently. 3 Glenville Williams sees the concept as fading in his comments on the decision of the court in Wilson v. Iyang [1951] 2 K.B. 799, [1951] 2 All E.R. 237, [1951] 2 T.L.R. 553; see Glanville Williams ‘Mistake in Criminal Law’ (1951)14 M.L.R. 485. 4 Bryan A. Garner et al, The Black’s Law Dictionary (8th edition Dallas: West Point Publishers, 1990) p. 1294 5It is for this reason that Hailsham L.J. held in D.P.P. v. Morgan [1975] 2 All E.R. 347at 356 that ‘...the fact that a belief cannot reasonably be held is a strong ground for saying that it was not in fact held honestly at all.’ 6 Criminal Codes of Southern States of Nigeria, s25. Parker L..J. (n1). Page | 119 SULEIMAN: The ‘Reasonable Man’ in the Law of Crime as a ‘Fading’ Legal Concept? An Overview of the Rome Statute, the New York Penal Code and the Codes of States of Nigeria 2. Who is the reasonable man? Stating the obvious in R. v. Mc Carthy7 Goddard L.J. remarked that: ‘No court has ever given nor do we think can ever give a definition of what constitutes a reasonable man.’ The current trend appears to be in favour of reasonable man being from the community of persons to which a defendant belongs8. In R. v. Lufazema9, Bolt J. queried the East African Court of Appeal for its choice of an English reasonable man in a Nyasaland (Malawian) case in A.G. Nyasaland v. Jackson10. According to Bolt J.: ‘Granted that the use of force in defence of person or property is governed by the principles of English Common Law, does that, however, necessitate going the further step of choosing the average man [reasonable man] in an English street?’ Such are the problems associated with any attempt to give a universally acceptable definition of the ‘reasonable man’ like any other concept of the art or social sciences. Perhaps, an elastic definition such as ‘An ordinary citizen, sometimes referred to as the man on the Clapham omnibus’11 may help alleviate this problem. It has been contended that the objective test/reasonable grounds test in the defence of mistake is a hoary error that has been repudiated12. The rule that honest belief must be on reasonable grounds13 is suggested to have found its replacement in the rule ‘honest belief is enough, it need not be on reasonable grounds’14. This view may appear to find support in the legislative activities of the state of New York15, the United Nations16 or the Penal Codes of Northern States of Nigeria, Sudan, India etc.17 who either do not provide for the application of the objective test at all or provide for the test of ‘good faith’ which has been defined to mean due care and diligence18. The replacement of the objective standard test rule with a subjective test rule claim is the driving force of this inquiry. 7 [1954] 2 Q.B. 105. 8In Lamba Kumbin v. Bauchi N.A. [1963] N.N.L.R. 49 at 51. In Wilson v. Iyang [supra], Young Husband v. Luftiq [1949] 2 All E.R. 72, [1949] 2K.B. 354, [1949] L.J.R. 1513. 9 [1966-1968] A.L.R. (Malawi) 355 at 362. 10 [1957] A.L.R. 488 11See Martin A. Elizabeth, (editor), Oxford Dictionary of Law (4th edn. New York: Oxford University Press, 1997) p.383. 12 Glenville Williams (n3). 13 Parker L.J. (n1). 14 (n3), see Justin Lewis, ‘The Outlook for a Devil in the Colonies’ (1958) Crim. L.R. 661. 15 New York Penal Code, s15.20 16 Rome Statute or the International Criminal Court Statute. 17 These shall be treated later. 18 Penal Code Act of the Federal Capital Territory, Abuja, s 37. Page | 120 AFJCLJ 4 (2019) 3. The ‘reasonable man’ in the Rome Statute The Rome Statute or the International Criminal Court Statute was adopted at a diplomatic conference in Rome on the 17th day of July, 199819, and it came into force on the 1st day of July, 200220. This statute came at a time that there was a global growing concern over fair treatment of humanity during wars especially that under the cover of fighting wars, war crimes21, crimes against humanity22, genocide23, etc. became the order of the day. In the words of the nations of the world: Mindful those during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognising that such grave crimes threatening the peace, security and wellbeing of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be insured by taking measures at the national level and by enhancing international cooperation, determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes ...24 (Sic). Such was the concern of the world for humanity during wars that led to the enactment of the Rome Statute. The Statute prescribes offences such as genocide25, crimes against humanity26, war crimes27 etc. One would appreciate the magnitude of the world concern if one views war crimes in retrospect. ‘These are the terrible crimes of mass murder, torture, rape and brutality, such as the Holocaust of World War II, the genocide of the Rwandan people and the abuses of Saddam Hussein’s regime ...’28 The above is part of the description of the concern of the world which led to the enactment of the Rome Statute and consequently, the establishment of the International Criminal Court29 or the War Crimes Tribunal. The concern of this piece is, however, not the crimes prescribed by the statute, but the defences provided in it that have ‘reasonableness’ as an ingredient. Article 32(1) of the Statute provides for the defence of mistake thus: ‘Article 32(1) ‘Mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime’. 19 Article 125(1). Dakas C.J. Dakas and Nankin Bagudu (editors), Human Rights: A compendium of International Instruments and Internet Resource Guide (Jos: Dales Press Ltd., 2004) p. 335. 20 http://treaties.un.org visited 19/12/2018 21 The Rome Statute, Article 8 (2) 22 (n16) Article 7 23 (n16) Article 6. 24 Dakas C.J. Dakas and Nankin Bagudu (n19). 25 (n19) p. 336 (n16) Article 6. 26 Ibid, (n19) Article 7. 27 Ibid at 337 (n19) Article 8. 28 Janice Anderson et al, War crimes and Atrocities, (Lancaster: Little, Brown Book Group, 2007) pp. 9 and 10. 29 (n16)Article 1. Page | 121 SULEIMAN: The ‘Reasonable Man’ in the Law of Crime as a ‘Fading’ Legal Concept? An Overview of the Rome Statute, the New York Penal Code and the Codes of States of Nigeria (Emphasis supplied). The striking difference between this provision and provisions of section 25 of the criminal codes of most of the states of Southern part of Nigeria is that the latter provisions require that the mistake must be ‘honest’ and be on ‘reasonable grounds’. On a cursory look, the objective standard test is not part of Article 32(1) of the Rome Statute. The requirement that a mistake must be such as negates mens rea shows undoubtedly that there are mistakes that cannot negate mens rea. The question that begs for an answer is, ‘what mistake would not negate mens rea as required by the statute?’ Subjectivists like Williams30 and Lewis31 would applaud a provision like this. Williams referred to the requirement of ‘reasonableness’ for a defence of mistake to be established in a criminal trial as a ‘hoary error’32. Be that as it may, the Rome Statute has brought us into confrontation with the problem of what yard stick could be used in determining whether or not a mistake is capable of nullifying mens rea in a criminal trial? Lewis has argued that an African who: ‘...puts forward this defence of mistake need not, therefore, be disturbed with the requirement of reasonableness ...The question the jury should be asked is whether they believe him...’33 The subjectivists’ sympathy for defendants that pleaded mistake during criminal trials in some cases is understood34. The yearning for justice drove them to lead the crusade of subjectivism as against the objective requirement of law in some jurisdictions. For all practical purposes, if a judge or jury believes the account of a defendant, there must be at least a reason for doing so. The reason in support of the judge’s or jury’s position stems from the available evidence before him. This is not dependent on whether a statute explicitly provides for the requirement of an objective standard for a defence of mistake or not. This reason forms the yardstick that determines the acceptability of the defence of mistake or not. No matter how sympathetic one may be as a subjectivist, he would not advocate for an automatic pass mark for a plea of mistake or some other defence by a defendant in a criminal trial just for the fact that the plea has been put forward. The plea must be sustainable by the evidence before a court. It is therefore not quite correct to say: ‘That the belief may be one personal to the individual asserting it, or one not shared by the community as a whole, seems to be established law. The fact that the community from whom... [the defendant comes from does not belief in what he believed] is immaterial’35. For instance, if a man aims at another man fifteen to twenty five meters away from him in the day time without any visual impairment and shot him to death. A plea that he mistook his victim for a pick or some other animal could be queried. Would it make any difference from the test of the reasonable man if the judge 30 Glenville Williams (n3). 31 Justin Lewis (n14). 32 Glenville Williams (n3) p.485. 33 Justin Lewis (n14) at 670. 34 Most of these jurists wrote at the time the common law concept of the reasonable man was applied in Nigeria like in other African countries. See Gadam v. The Queen [1954]14 WACA 442(Nigeria), Maanwole Konkomba v. R [1952] 14 W.A.C.A. 236 (Ghana), R. v. Juma [1974] E.A.L.R. 336, Yovan v. Uganda [1970] E.A.L.R.405 (Uganda) R. v. Kabamba Chintukwe [1949-54)]5 Z.L.R. 339 (Zambia). 35 Ibid at p. 668. Page | 122 AFJCLJ 4 (2019) reasons this way, ‘I don’t believe the defendant because no ordinary person would have honestly made the mistake he claims to have made giving the same circumstances’. This is another way of saying that such a mistaken belief is not founded on ‘reasonable grounds’. Strict subjectivism is not tenable in the administration of criminal justice. If reference is not made to the members of the community to which the defendant belongs to, then certainly the judge or jury saddled with the responsibility of deciding the acceptability of the defendant’s account becomes the out standard or the measurement rule. It is for all practical purposes illusionary to think that there would be a day in our criminal justice administration that the application of the objective test would be irrelevant. It must, however, be rightly applied as suggested by Chukkol36. It is high time that courts look at terms such as ‘reasonable man’ or ‘reasonable grounds’ as requirement in defences to criminal liability as English words more than they are wrongly seen as terms with common law of crime anointing. For instance, Article 31 Rule 1 (c) of the Rome Statute provides for the right of private defence in the following terms: Article 31(1) In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in the manner proportionate to the degree of danger to the person of the other person or property protected... (Emphasis supplied). From the explicit provisions of Article 31(1) (c) of the Statute, the objective test has been laid down. Would this then mean going all the way to a street in England looking for a reasonable man that a Rwandan standing trial under the statute and who raises private defence under Article 31(1) (c) of the Statute to apply in his case? By no means! The hard posture previously taken in favour of English common law of crime and its ‘reasonable man’ concept is the open door to the arguments of the subjectivists above. For instance, Okonkwo in his comments on the decision of the English court in the case of Wilson v. Iyang37 posited that: ‘In English law, it is on the way to being established that, provided the accused has an honest belief, the unreasonableness of that belief is immaterial in law though it may be evidence of dishonesty ...’38 (Emphasis supplied). 36 Chukkol Kharisu Suffianu, Defences to Criminal Liability in Nigerian Law: A Critical Appraisal (Zaria: ABU Press Ltd., 1985) p. 18. 37 [supra]. 38 Okonkwo and Naish: Criminal Law in Nigeria (2nd edn. Ibadan: Spectrum Law Publishers, 2000) p. 105. Page | 123 SULEIMAN: The ‘Reasonable Man’ in the Law of Crime as a ‘Fading’ Legal Concept? An Overview of the Rome Statute, the New York Penal Code and the Codes of States of Nigeria In another breath, though not in too dissimilar position from the position of Okonkwo, Amankwa argued that: ‘From the decision of the English Courts in Wilson v. Iyang, it is clear that ‘good faith’ and ‘reasonableness of mistake’ are different things, although there may well be cases where the presence of one is a fact from which the other may be inferred’.39 The position taken by the jurists above finds support in the dictum of Hailsham L.J. in D.P.P. v. Morgan40 where his Lordship maintained that: ‘...the fact that a belief cannot reasonably be held is a strong ground for saying that it was not in fact held honestly at all.’ The evidential value of reasonableness to make an honest believe acceptable to a court or jury is the ground for our contention that whether the objective test standard is provided for by a statute or not, it may find expression one way or the other in the decision of a court. For instance, in State of Orissa v. Ram Bahadur Thapa41, an Indian Court proceeding under section 79 of the Indian Penal Code that has no explicit mention of reasonable grounds held that: The benefit of section 79, I.P.C. is available to a person who by reason of mistake of fact in good faith believes himself to be justified by law in doing an act. In view of the clear evidence to the effect that the respondent thought that he was attacking ghosts, he would be entitled to the benefit of that section, unless from the facts and circumstances established in the case it can be reasonably held that he did not act in good faith.42 [Emphasis supplied]. In another Indian case of Waryam Singh v. Emperor43, Jai Lal J., considering the defence of mistake that is required to be founded on ‘good faith’, held that ‘... the question of good faith has to be determined in the light of all surrounding circumstances; these clearly lead to the inference that the convict had no reason to think that a human being would arrive on the scene at such a time and place and that he probably thought that a ghost had actually appeared’. (Emphasis supplied). His Lordship used the underlined words freely not minding the fact that section 79 of the Indian penal code has no mention of ‘reasonable grounds’ as a requirement for the defence of mistake at all. Commenting on the place of the objective test in Article 32(1) of the Rome Statute Hajdin opined that ‘even though Article 32(1) of the Rome Statute does not expressly state that the mistake must be reasonable, the likelihood of succeeding with this defence increases if the reasonableness of the mistake increases. A defendant claiming a mistake of fact has the burden of making it probable that he or she was honestly mistaken’44. (Emphasis supplied). This would appear to put to rest the argument that it is possible to 39 Amankwa Ofori, Criminal Law in Northern States of Nigeria (Zaria: Gaskiya Corporation Ltd., 1986) p. 161-162. 40 [1975] 2 All E.R. 347at 356. 41 [1960] A.I.R. (Orissa) 161. 42 Per Narasimham C.J. 43 [1926] A.I.R. (Lah.) 554 44 Nikola Hajdin, ‘Commentary on the Rome Statute, Part 2’ matrixnetwork.org visited 19/12/2018. Page | 124 AFJCLJ 4 (2019) put away the objective test standard in defences to criminal allegations in our criminal justice administration laws. The emphasis appears to have been on the effect of such a mistake on mens rea45 especially intention and knowledge. We do not hesitate to say that Article 32(1) of the Rome Statute requires more than a bare assertion of mistake by the defendant. It must be an assertion well founded that the mens rea required in the crime the defendant stands trial for could be said to have been displaced. 4. The ‘Reasonable Man’ under the New York Penal Code The New York Penal Code, 15.20(2) provides: A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offence, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of the state of federal court, or (d) an interpretation of the statute or law relating to the offence, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility of privilege of administering, enforcing, or interpreting such statutes or law. A case considered by the New York Court of appeal under this provision is People of New York State v. Marrero46. The defendant, a public officer working in a federal correction centre, bore upon his person an unlicensed pistol. He moved to quash his indictment on the grounds that as a peace officer he was exempted from punishment under the Firearms possession Statute. The term ‘peace officer’ as defined by sections 1.20 and 2.10 of the New York Criminal Procedure Law included any official or guard ‘of any penal correctional institution’. The defendant’s indictment was quashed for his mistaken understanding of these provisions but there was a successful appeal against the order thus his trial and subsequent conviction and an appeal against the conviction. It was the appellant’s argument that his personal mistaken understanding of the statutory definition of a ‘peace officer’ in sections 1.20 and 2.10 of the New York Criminal Procedure Law was enough ground for his plea of mistake under section 15.20 of the New York Penal Code. The definition of a ‘peace officer’ under the law above did not include a federal public officer as the appellant claimed to have mistakenly believed. In a majority of three against two of their Lordships of the Court of Appeal of New York, his appeal failed. The majority adhered to the common law principle of ingnorantia legis neminem excusat i.e. ‘ignorance of the law is not an excuse’. The wrong position of the majority law lords in this case is not the 45 (n16)Article 30. 4669 N.Y.2d 382 [1987]. Page | 125 SULEIMAN: The ‘Reasonable Man’ in the Law of Crime as a ‘Fading’ Legal Concept? An Overview of the Rome Statute, the New York Penal Code and the Codes of States of Nigeria primary concern of this piece47; it is that section 15.20 of the New York Code provides that for a defence of mistake of law to secure a pass mark there are conditions it must meet. Without saying more, these conditions constitute the reasonable grounds of a defence under that code. We have seen instances that courts used the term ‘reasonable grounds’ or ‘reasonable’ freely without such provisions in the codes under consideration48. The Court of Appeal in the New York case of People v. Gudz49 frowned at the importation of alien terms50 into the New York Penal Code that had no explicit provision for the ‘reasonable man’. It would really not make a difference if the terms are used as mere English words void of any common law leaning to show that the defendant’s honest believe account is well founded or not. 5. The ‘Reasonable Man’ under the Criminal Codes of States of Southern Nigeria The criminal codes of southern states of Nigeria have codified the notion of the ‘reasonable man’. The reason is traceable to our colonial relationship with Britain51. This code was applicable to Northern Nigeria before its extension to the Southern part of the country in 191652. Section 25 of the code that provides for the defence of mistake has the notion of the objective standard test codified. Section 25 of the code provides that ‘A person who does or omits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been as he believed to exist’. (Emphasis supplied). One of the fore most African judges that rightly criticized the importation of the English notion of the ‘reasonable man’ into the African criminal jurisprudence was Bolt J.53 in his objection to the East African Court of Appeal’s position that a ‘reasonable man’ in a Nyasaland (Malawian) case must be one from England 54. In Gadam v. The Queen55, the common law notion of the ‘reasonable man’ was applied and the defendant denied the possible defences provided by the criminal code. This was wrong. The mere provision of an objective standard by the code was no sufficient reason for applying the concept as it 47 It was a decision that was founded on public policy and not in accordance with the wordings and phraseology of the statute under consideration i.e. section 15.20 of the New York Penal Code. It was the majority law lord’s desire to curb endless pleas of mistake of law. 48 See for instance, Jai Lal J.’s dictum in Waryam Singh v. Emperor [supra], State of Orissa v. Ram Bahadur Thapa [supra]. 49 www.courts.state.ny.us./reporter/3dseries/2005 50 The reasonable man. 51 See Kharisu S. Chukkol, The Law of Crimes in Nigeria (Rvsd. edn. Zaria: Ahmadu Bello University Printing Press Ltd., 2010) p. 13-15. 52 Ibid. 53 (n9). 54 A.G. of Nyasaland v. Jackson [supra]. 55 [1954] W.A.C.A. 442. Page | 126 AFJCLJ 4 (2019) is applied in England. In State v. Tabigen56, the defunct Federal Supreme Court of Nigeria referred to the common law standard of reasonableness misapplied in the Ghanaian case of Maawole Konkomba v. R.57 with approval in the following terms: ‘... we do not intend to depart from that salutary rule’. As if in a continuing dialogue with the spirit of Bolt J. in R. v. Lufazema58, Chukkol validly argued that: ‘The doctrine of reasonableness, if correctly applied, can be meaningful.’59 The jurist’s comment was attracted by the decision of the West African Court of Appeal in Mohammed Gadam v. The Queen.60 The prisoner believed his sick wife to be the victim of the witchcraft of the deceased. Acting according to the beliefs of members of his community, he hit her with the handle of a hoe on the head to divest her of magical powers over his wife but unfortunately she died. He was convicted by the trial court on the grounds that his belief was unreasonable. Commenting further on this decision Chukkol maintained that: Is reasonableness to be judged with particular regard to what is a common belief among the community or should the standard be set by the elite minority? Certainly gross injustice will result if, having been subjugated and made to obey an essentially foreign law, the Nigerian peasant is bullied into forsaking his age-long beliefs, the reason being only that these beliefs are not shared by his British or his British-trained over lords!61 The ‘Reasonable man: Does he exist under the Penal Code’ Act of the Federal Capital Territory, Abuja? Section 45 of the Penal Code Act of the Federal Capital Territory, Abuja provides for the defence of mistake62. It is the same as the Penal Codes of states of northern Nigeria which they inherited from the defunct Northern Region as enacted by its legislature in 1959. The Abuja law provides in section 45: ‘Nothing is an offence which is done by any person who is justified by law, or who by reason of mistake of fact and not by reason of mistake of law in good faith believes himself to be justified by law in doing it’. There is no case where ‘good faith’ provided by section 45 of the Penal Code has been considered to mean the same thing as the objective standard laid down in section 25 of the Criminal Code. Chukkol maintains that the two mean different things63. Amankwa at a time 56 [1960] 5 F.S.C. 8, [1960] 1 N.S.C.C. 6 at 8 paragraph 25, per Brett F.J. 57 [1952] 14 W.A.C.A. 236. 58 [supra]. 59Kharisu S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Printing Press Ltd.1988)p. 50. 60 [1954] 14 W.A.C.A. 442. 61 Kharisu S. Chukkol (n51) p. 50. In R. v. Ifereonwe (unreported) cited by Chukkol (loc. cit), belief in witchcraft was found to be predominant in the defendant’s community but she was not allowed any defence founded on witchcraft for deterrence reasons. In Queen v. Tabigen (1960) 1 NSCC 6 at 8, the defunct Supreme Court held that belief in witchcraft had always been held unreasonable and saw no reason to depart from that salutary rule. 62 This has a slight difference in phraseology with the Shari’a Penal Code of Zamfara State, Nigeria. 63 See Kharisu S. Chukkol, ‘The Reasonable man: Does He Exist under the Penal Code?’ (1984& 1985) A.B.U. p. 44, The Law of Crimes in Nigeria (Revised edn. Zaria: A.B.U. Printing Press Ltd., 2010) pp. 88 and 89. Page | 127 SULEIMAN: The ‘Reasonable Man’ in the Law of Crime as a ‘Fading’ Legal Concept? An Overview of the Rome Statute, the New York Penal Code and the Codes of States of Nigeria saw the two as meaning the same thing64. Chukkol argues that had the defunct Northern Legislature meant ‘good faith’ to be an objective standard, nothing stopped it from ‘explicitly’ providing so65. He cited section 37 of the code that defines ‘good faith’ to mean ‘the exercise of due care and attention’ in support of his argument. He also cited section 52 of the Penal Code of Ghana that provides for ‘good faith’ and ‘reasonable grounds’ to lend weight to the view that the legislature never intended ‘good faith’ to mean the same thing with ‘reasonable grounds’ under the Criminal Code66. With respect to Chukkol, he overlooks the fact that at the time the Penal Code was promulgated, the overwhelming desire was for a code that could work for a culturally heterogeneous community like the then Northern Nigeria like in Sudan etc.67 Secondly, the juristic rigours in the controversy of who the ‘reasonable man’ is today were not in vogue in Nigeria at that time to put the law maker on the guard. Thirdly, decisions of courts in countries with similar provisions like the Penal Code do not support his view. In Sudan Government v. Abulla Nur68, Waryam Singh v. Emperor69 and Orissa v. Ram Bahadur Thapa70 the defendants acted reasonably in the circumstances they found themselves where their codes demanded a mistake to be in ‘good faith’ which is defined in the same terms as it is defined in section 37 of the Penal Code. In Thapa’s case, the defendant was a Nepalese who believed in ghosts and who found himself in an Indian community that believed in ghosts. In the night, in company of some other persons, the defendant and his company saw lights and images they believed to be ghosts. He ran to the scene and attacked the images which turned out to be human beings in that area that was believed to be ghosts infested. His defence of mistake was allowed under section 79 of the Indian Penal Code71. 6. Objectivism or Subjectivism: Between Reality and Fallacy Let us bring to bear the valid observation of Chukkol from the inception of this part; that is, if the notion of the ‘reasonable man’ is correctly applied it could be quite useful72. In Young Husband v. Lufftiq73, the defendant, a renowned professor of medicine, University of Berlin, without registration under the English Medical Practitioners Act, described himself as a medical doctor in England. His plea of mistake was allowed. In contrast to this, in Andrews v. Styrap74, the defendant was a druggist who described himself as medical doctor with a diploma he claimed to have obtained from an 64 Ofori Amankwa, Criminal Law in the Northern States of Nigeria (Zaria: Gaskiya Printing Corporation) p. 65 Kharisu S. Chukkol (n59) p. 44 at 47. 66 Ibid. 67 See Kharisu S. Chukkol (n51) p. 8-17. 68 [supra]. 69 [supra]. 70 [supra]. 71 This section is in pari materia with section 45 of the Penal Code of Abuja above quoted. 72Loc.cit. In R. v. Adekammi [1944] 17 N.L.R. 99 at 110 Francis J. held that in deciding who the reasonable man is in the defence of provocation, he must be someone from the community of the defendant. 73[1949] 2 ER 72, [1949] 2 K.B. 354, [1949] L.J.R. 1513. 74[1872] 26 L.T. 704. Page | 128 AFJCLJ 4 (2019) American institution. He had, in fact, never been to America. His conviction was sustained and his plea of mistake was rightly rejected. Similarly, in Steel v. Ormsby75, the defendant was a miner who was visiting sick persons and supplying them with drugs. He signed death and other certificates describing himself as a medical doctor. He had a certificate issued by a joint stock company as qualification. His plea of mistake to a charge of addressing himself as a doctor without registration under the Act was rightly rejected. In these cases, it is never wrong to say that the defendant in Young Husband v. Lufftiq76 had reasonable grounds for describing himself as a medical doctor while the defendants in the cases of Andrews v. Styrap77 and Steel v. Ormsby78 had no ‘reasonable grounds’ for believing that they were qualified to describe themselves as medical doctors at all. In situations that codes are silent on the requirement of ‘reasonableness’ we have seen that courts have in their judgments made reference to it as though it were a requirement. This all the more underscores the argument that ‘reasonable grounds’ be treated as mere English words. We have seen the contention that section 37 of the Penal Codes of states of northern Nigeria defines ‘good faith’ provided by section 45 as the exercise of ‘due care and attention’. It has been argued that if the ‘draftsman’79 of the Penal Code had meant ‘good faith’ to mean the same thing with ‘reasonable grounds’ ‘...there appears no valid reason why this was not clearly provided’.80 Valid as this argument would appear to be, we are reluctant to accept it as the consideration of cases decided in the penal code jurisdictions reveals more often than not that this argument is not tenable. For instance, in Sudan Government v. Abdulla Nur81, the defendant lived in a community where it was believed that a harmful ghost existed and was wandering and harming people. He met his victim one windy night and challenged what he perceived to be a ghost to identify ‘itself’ without receiving any reply. He struck ‘it’ with lethal consequences. His plea of mistake under section 44 of the Sudanese Penal Code82 to a murder charge was allowed in the circumstances of the case. Giving the right meaning of ‘reasonable man’ advanced by Chukkol especially on his comments on cases where such defences are hinged on belief in the supernatural83, there is no uphill task seeing that what he advocated to have been reasonable in those cases84 is nothing different from the decision 75 [1894] 10 T.L.R. 483. 76 [supra]. 77 [supra]. 78 [supra]. 79A statute is not an act of a draftsman but that of a law maker. 80 Kharisu S. Chukkol (n63) p. 44 at 47. He is in this school of thought with Professor M. Khalil. 81[1959] S.L.J.R. 1 82In pari materia with section 45 of the penal codes of northern states of Nigeria, 79 of the penal code of Pakistan and section 79 of the penal code of India. Note also that sections 37 and 52 of the Pakistan and Sudan Penal Codes respectively define ‘good faith’ in the same terms with section 37 of the northern states of Nigeria penal code. 83Alu Mamman v. The State [supra], R. v. Adekammi [supra], Gadam v. The Queen [supra]. 84 For instance, commenting on the decision of the court in Gadam v. The Queen [1954] 14 WACA 442, Kharisu S. Chukkol (n36) argued that: ‘The doctrine of reasonableness if correctly applied can be meaningful.’ Arguing that its application in the case was absurd when the court found that such belief was community wide held. Page | 129 SULEIMAN: The ‘Reasonable Man’ in the Law of Crime as a ‘Fading’ Legal Concept? An Overview of the Rome Statute, the New York Penal Code and the Codes of States of Nigeria of the Sudanese court in the above case. In contrast to Sudan Government v. Abdulla Nur85, we have Sudan Government v. Ismail El Nebi86. The defendant in the latter case had bought drinks for a woman who later turned down his sexual overtures. He struck her to death and claimed that he mistook her for a ‘baatiya’ (an evil spook). The court rightly rejected his defence of mistake for want of ‘good faith’. In Waryam Singh v. Emperor87, the defendant had lost children. To stop the reoccurrence of such deaths, he was advised to make his wife sit on the grave of the last child that was buried and take a bath. While he poured water on his wife on the fateful night, there appeared on the scene an object. He struck the intruder with a weapon with lethal consequences and reported to his community members that he had killed a ghost. His plea of mistake under section 79 of the Indian penal code was rightly sustained by the court as the belief was found to be prevalent in his community. Except a belief is honestly held, it cannot found the defence of mistake. It is equally true that it is not every mistaken belief that is honestly held88. The test of honesty being subjective, the judge must have a test rule to measure the honesty of a belief to avoid giving scoundrels pass marks. The test rule is found in the objective standard test which must always be seen as a flexible rule that takes its shape from the circumstances of each case and the circumstances of the defendant. The test standard must always be void of common law colourisation. 7. The Direct Lesson of the courts’ decisions in Wilson v. Iyang and Young Husband v. Luftig 1.6.1 The courts’ decisions in the above two cases have unique features. Firstly, the defendants were in a foreign land and strangers to the practices of their new environment. Secondly, by the circumstances of their cases none of them had reason to belief that he had no right to do what he did because of their qualifications and their placements in their countries of origin. The courts in the above cases took into consideration the peculiar circumstances of the defendants and base their decisions not on the personal equation rule but chose to look them as a reflection on the mirror of where they come from. Someone from the defendant’s countries of origin given the same circumstances would not have acted differently. In People v. Moua89, the defendant had sex with the ‘victim’ whom he honestly believed to be consenting in accordance with Hmong marriage by capture ritual/culture. The defendant gave evidence that at the time he had sex with his wife by capture according to their culture, her resistance was the normal cultural response of a woman in the situation in assertion of her honour and virtue as a woman while it was his joy as a man to proceed in the act as a mark of his worth to be her husband according to their culture. The defendant was laid off the accusation of rape in the United States. Pleas of foreign nationals in courts of their host countries 85 [supra]. 86 (1965) SLJR 140. 87 [supra]. 88 Sudan Government v. El Nebi [supra]. 89(Fresno Super. Ct. Feb. 17, 1985) cited by Jinghui Vivien Wang, ‘Cultural Defense as Shield for Violence’ American Journal of Gender, Social Policy and the Law, 2018; http://www.jgspl.org/cultural- defense-shield-violence/ visited 23/11/2018. Page | 130 AFJCLJ 4 (2019) during criminal trials should not be ignored as suggesting the application of double standard or even discrimination against citizens in favour of foreigners. Such cultural factors displace the requisite mental elements of crimes in some cases. It is the understanding of this principle that guided Lord Kenyon C.J. in Fowler v. Paget90, when he remarked: ‘It is a principle of natural justice, and of our law, that actus non facit reum nisi mens sit rea, i.e. The intent and the act must both concur to constitute the crime...’ Putting it in another way, Reid L J in Sweet v. Parseley91 maintained that: ‘There has for centuries been the presumption that parliament did not intend to make criminals out of persons who were in no way to blame in what they did.’92 The decisions of the courts in the cases of both Wilson and Young Husband leave the direct lesson of avoiding the harsh consequences of treating a stranger as a citizen would have been treated in a foreign jurisdiction to avoid the probable negation of the fundamental principle of mens rea in crime. 8. Conclusion and Recommendations The application of the objective test has become dominant in courts despite decreasing legislative activities in criminal jurisdictions in favour of the application of the standard. Courts are gradually employing the use of the term as mere English words without giving it the common law force it used to command. This has become the practice in jurisdictions where the test is laid down in their codes and those that make no mention of the objective test at all. The factor that cannot be ignored is that a judge sitting over a criminal trial must always have reason to belief the evidence of a defendant or not. The evidence that convinces a judge to believe that a defendant was honest in his belief in the state of things at the time of his ‘misconduct’ forms the reasonable grounds of the defendant’s belief whether the court explicitly say so in its judgment or not. Courts should avoid any reference to the common law notion of the ‘reasonable man’ when considering the defences of defendants in African or none English criminal cases; and to treatment ‘reasonable’ or ‘reasonable grounds’ as English words. The legislatures of states of the northern part of Nigeria should amend their section 37 of the Penal Codes to give a definition of ‘good faith’ that is in tandem with the reality shown by decided cases. Cultural circumstances of defendants should be relevant factors to be considered by the criminal courts in the determination of the ‘reasonableness’ or otherwise of honest belief in the defence of mistake and other defences especially when foreign nationals stand trial. 90 [1798] 7 T.R. 509 at 514 91 [1969] 1 All ER 347. 92 Ibid at 351. Page | 131 AYENI: A Critical Examination of the Criminal Jurisdiction of the National Industrial Court of Nigeria A CRITICAL EXAMINATION OF THE CRIMINAL JURISDICTION OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA* Abstract This paper examines the criminal jurisdiction of the National Industrial Court of Nigeria (NICN) in the light of the Third Alteration Act 2010. Some of the questions raised and answered in the paper include whether the NICN has criminal jurisdiction? The paper also inquires whether the criminal jurisdiction of the NICN is exclusive or concurrent with other superior courts of record? What does the criminal jurisdiction of the NICN entail? In other words, over which crimes does the NICN have jurisdiction? And finally, is such jurisdiction really necessary or desirable? The paper argues that the conferment of criminal jurisdiction in labour-related matters on the NICN is a watershed in the annals of labour law development in Nigeria, if the jurisdiction is properly and effectively put into operation. Although some highly industrialized countries are yet to set up specialized courts for handling industrial disputes let alone conferring criminal jurisdiction on them, it is not anomalous if Nigeria blazes the trail in this area. Keywords: National Industrial Court of Nigeria, Criminal Jurisdiction, Critical Examination, Labour Law, The Constitution 1. Introduction The terrain of labour law is one which Nigerian scholars and jurists find quite attractive.1 This may be due to at least two reasons. First, the subject of labour law is naturally enchanting to scholars and jurists who mostly are affected one way or the other by labour law. Secondly, the deluge of interest in labour law may be explained in terms of the controversies frequently associated with labour legislations in Nigeria. It is however difficult to explain why every labour legislation, in Nigeria is always enmeshed in one form of controversy or the other. Under the National Industrial Court Act of 2006, it was the constitutionality of the superior court of record status and the exclusive jurisdiction * Victor Oluwasina AYENI, PhD, Lecturer, Adekunle Ajasin University, Akungba-Akoko, Ondo State. Email: [email protected]/ Phone: +2347066711568 1 See for instance, OD Ejere, ‘Further Reflections on the Constitutionality of the National Industrial Court Act, 2006’ (2007) 4 Labour Law Review, 59; OD Amucheazi and EA Oji, ‘The Status of the National Industrial Court under the 1999 Constitution’ (2008) 2(3) Labour Law Review, 1; CA Obiozor, ‘Settlement of Trade Disputes in Nigeria: Reflections on Section 1 (3)(a) of the National Industrial Court Act, 2006’ (2010) 4(3) Labour Law Review, 69; G Ojo, ‘Legal Anatomy of the National Industrial Court Act 2006: The Need for Legislative Re-Thinking’ (2008) 2(2) Labour Law Review, 1 – 24; NIE Worugji, et al, ‘The NIC Act (2006) and the Jurisdictional Conflict in Adjudicatory Settlement of Labour Disputes in Nigeria: An Unresolved Issue’ (2007) 1(2) Labour Law Review 25 – 42; AB Chiafor, ‘Reflections on the Constitutionality of the Superior Court of Record Status and Exclusive Jurisdiction Clauses of the NIC Act, 2006,’ (2007) 1(3) Labour Law Review1. Page | 132 AFJCLJ 4 (2019) clauses of the Act that generated massive controversy. Even the Constitution of the Federal Republic of Nigeria 1999 (Third alteration Act) 2010, which came into force barely 3years ago to remedy some of the shortcomings of the 2006 NIC Act is already having its fair share of academic hullabaloo.2 It is thus apposite to state from the start that the literature on the status and jurisdiction of the National Industrial Court under the 2006 NIC Act or the 2010 Third Alteration Act is quite massive.3 However, only very limited attention has been given to the criminal jurisdiction of the NICN, one of the ground- breaking provisions of the Constitution of the Federal Republic of Nigeria 1999 (Third alteration Act) 2010. While some highly industrialized countries are yet have specialized labour courts, most countries that have such courts limit their jurisdiction to civil matters that border on labour and industrial disputes. Against this milieu, this paper examines the criminal jurisdiction of the National Industrial Court of Nigeria, the nature of such jurisdiction, its desirability or otherwise and whether the jurisdiction is a constitutional watershed or another fly in the ointment?4 2. Nature of Jurisdiction under the Law Jurisdiction is the authority or competence of a court of law to deal with or decide matters that are being litigated before it.5 It is also the authority, which a court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision.6 The Black’s Law Dictionary defines jurisdiction as: ‘The power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties…the power of courts to inquire into facts apply the law, make decisions and declare judgment; the legal right by which judges exercise their authority.7 Jurisdiction can also be defined as the powers of courts to inquire into facts, apply the law, make decisions and declare judgment. Jurisdiction is said 2 See, for instance, KI Amadi, ‘Reflections on the Status of the National Industrial Court under The Constitution (Third Alteration) Act 2010’ (2011) 5 Labour Law Review, 1 – 12; B Atilola and M Dugeri, ‘National Industrial Court of Nigeria and the Proposed Alternative Dispute Resolution Centre: A Road Map’ (2012) 6 Labour Law Review 1; B Atilola and A Morocco-Clarke, ‘National Industrial Court and Jurisdiction over International Labour Treaties under the Third Alteration Act’ (2011) 5(4) Labour Law Review, 1 – 6; B Aturu, ‘The National Industrial Court Under The 1999 Constitution and The Resolution of Industrial Disputes’ (2012) 7 The Nigerian Business Law and Practice Journal, 82 – 91. 3 See notes 1 and 2 above. 4 Throughout this paper, the Court is referred to as National Industry Court of Nigeria (NICN) as established by section 254A of the Constitution (as amended). However, when referring to the court under the 2006 National Industrial Court Act or other prior labour legislations, the court is referred to simply as National Industrial Court (NIC). Both NICN and NIC are used interchangeably in some cases. 5 S.P.D.C. Ltd v Bukuma Fishermen Society Ltd (2001) FWLR (Part 70) pg 1507 at 1516; see also Black’s Law Dictionary, 7th edition. 6 Enugwu v. Okefi (2000) 3 NWLR (Pt. 650) 620 at 639, paras B-C. 7 Black’s Law Dictionary, 6th Edition, 1990, p 853; Federal Land Bank of Louisville v Crombie, 258 Ky. 383,80 S.W.2d 39,40. Page | 133 AYENI: A Critical Examination of the Criminal Jurisdiction of the National Industrial Court of Nigeria to exist when a court has cognizance of class of cases involved, proper parties are present, and point to be decided is within the powers of court.8 Jurisdiction is fundamental to adjudication. Any decision taken by a court without jurisdiction is incompetent, and is subject to being nullified on appeal.9 Once a court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is incurable in law.10 The matter ends there and the only procedural duty of the court is to strike out the case.11 In the words of Kayode Eso, JSC (as he then was) in Attorney-General of Lagos State v Dosunmu:12 ‘The sub-stratum of a court is no doubt jurisdiction. Without it, the labourer therein, that is both litigants and counsel on the one hand and the judges on the other hand, labour in vain.’13 Thus, the question of jurisdiction can be raised at any time, whether in the court of first instance or on appeal for the first time by a defendant. The Court may also raise the issue of jurisdiction suo motu even if none of the parties raises it.14 In Oloba v Akereja,15 it was held that: ‘It is the duty of the judge or Justice, where there are sufficient facts ex-facie on the records establishing a want of competence or jurisdiction in the Court to raise the issue suo motu if the parties fail to draw the Court’s attention to it.’16 In the much celebrated case of Madukolu v Nkemdilim,17 the Supreme Court set out the core components of jurisdiction or the basic requirements every court must satisfy before claiming jurisdiction over any suit litigated before it. In that case, the court stated: The law is indeed trite that a court is only competent to exercise jurisdiction in respect of any matter where- (1) It is properly constituted as regards the number and qualifications of its members of the bench, and no member is disqualified for one reason or another; and (2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) The case coming up before the court was initiated 8 YO Ali, ‘Jurisdiction of the Courts in Labour And Trade Union Matters’ Page | 134 AFJCLJ 4 (2019) by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.18 Jurisdiction of court is a function of law.19 Every court is set up by a law and that law usually defines its jurisdiction. Jurisdiction may be in relation to the subject matter which the court may entertain or the financial limit of such claim, so that if an action exceeds that limit, the court will be lacking in jurisdiction.20 Jurisdiction may also be by reference to the constitution or composition of the court or by reference to the geographical area of operation of the court, such that if the claim falls outside the geographical area, the court will be lacking in jurisdiction. Generally, jurisdiction is of different types. It may be original, appellate or merely supervisory jurisdiction. It may also be civil, criminal or sui generis. Civil jurisdiction refers to the power and authority of a court to hear and determine civil causes and matters.21 Civil matters, on the other hand, are causes, disputes or matters in court which result in the award of damages or declaration of rights, compensation and prerogative or equitable damages, among others.22 However, where the result of an action is a penalty such as capital punishment, a sentence of imprisonment, fine, caning or other similar penalties, then the jurisdiction to be assumed in respect of such action is criminal. In Nigeria, courts with criminal jurisdiction may be categorized into two. These are: courts with general criminal jurisdiction and courts with special criminal jurisdiction.23 A court such as the NICN is deemed to be of special criminal jurisdiction if such court exercises jurisdiction over a particular class of offenders or a particular types of offences.24 Courts of general criminal jurisdiction on the other hand are courts that have jurisdiction over different classes of offenders and in respect of different class of offences.25 3. Status of the NIC before the Third Alteration Act, 2010 The National Industrial Court of Nigeria (NICN) also referred to in this paper National Industrial Court (NIC) especially prior to 2010 is a child of necessity.26 It was established in responses to global 18 The reasoning in this case has been restated and adopted in many other subsequent cases. See for instance, see Nwankwo v Yar’adua (2010) 12 NWLR (Pt. 1209) p. 518, at p. 560, paras. E-H; Ndaeyo v Ogunnaya (1977) 1 SC 11; National Bank of Nigeria Ltd. v Shoyoye (1977) 5 SC 181; A-G., Federation v Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187. 19 AF Afolayan and PC Okorie, Modern Civil Procedure Law (Lagos: Dee-Sage Nigeria Ltd., 2007) pp 1-2. 20 As above. 21 AF Afolayan and PC Okorie (n. 19) 1. 22 As above. 23 B Osamor, Fundamentals of Criminal Procedure in Nigeria (Lagos: Dee-Sage Nigeria Ltd for Ella-B Ventures Nigeria, 2004) p. 1. 24 As above. 25 B Osamor (n. 23) p.1. 26 B Aturu, ‘The National Industrial Court Under the 1999 Constitution and the Resolution of Industrial Disputes’ (2012) 7 Nigerian Business Law and Practice Journal, 82 – 91. Page | 135 AYENI: A Critical Examination of the Criminal Jurisdiction of the National Industrial Court of Nigeria economic challenges, the influx into Nigeria by foreign investors and the need for labour competitiveness.27 The court was established for the first time on 1st January, 1976 by the Trade Dispute Decree No. 7 of 1976, which later became the Trade Disputes Act (TDA), 1990.28 It was established to serve as ‘the ultimate’ and final’ court for the settlement of trade disputes in Nigeria.29 The court however, did not become functional until 1978.30 For 25 years thereafter, NIC remained moribund. It sat only in Lagos and was clearly unheard of. Its decisions and pronouncements were hardly respected.31 After military regimes came to a halt in Nigeria in 1999 and almost all ouster decrees had been repealed, regular courts began to foray into labour disputes.32 The matter came to a head in 2004, when the Supreme Court held in the case of National Union of Electricity Employees v. Bureau of Public Enterprise33 that the NIC, as against the intendment of Decree no. 47 of 1992, could not be a superior court of record without an amendment of section 6(3) and (5) of the 1999 Constitution. Thus, in 2005, the National Assembly took a wise decision by passing the NIC Bill. This Bill came into force in 2006 as the National Industrial Court (NIC) Act 2006. The Act aims to ease and hasten the dispensation of justice in matters related to labor and trade unions; and also to re- establish the NIC as a superior court of record and provide for an enabling law that will regulate its functions, thus giving it its proper status as a court of law.34 The NIC Act, it was thought, would cure many of the inherent defects of old legal regime. Much as the NIC Act, 2006 has tried to resolve the controversies which bedeviled the adjudication of industrial disputes under the TDA, the Act has also brought with it its share of the hullabaloo. Fortunately, these challenges propelled the National Assembly to rise up to the challenge by exercising its powers under sections 4(2) and 9(1)&(2) of the Constitution of the Federal Republic of 27See also B Atilola, M Adetunji and M Dugeri, ‘Powers and jurisdiction of the National Industrial Court of Nigeria under the Third Alteration: A case for its retention as enacted in the Constitution’ Page | 136 AFJCLJ 4 (2019) Nigeria 1999 when it set in motion the processes of amending the 1999 Constitution to cure once and for all the problems confronting the NIC. The dusts raised and controversies surrounding the NIC Act of 2006 were laid to rest in 2011 when the President of the Federal Republic of Nigeria assented to the Constitution (Third Alteration) Bill, 2010 which amended the 1999 Constitution to include the NICN in the relevant sections of the Constitution such as sections 84(4), 240,243, 254, 287, 289, 292, 294, 295, 316 and 318, of Constitution; all of which were altered to reflect the firm standing of the National Industrial Court of Nigeria as a Court created directly by the Constitution like other superior courts of record in Nigeria.35 The Constitution (Third Alteration) Act 2010 (also hereinafter referred to as the Third Alteration Act) altered section 6(5) of the 1999 Constitution by inserting after the existing paragraph (c) a new paragraph ‘cc’ which entails the National Industrial Court of Nigeria.36 In the same manner, Section 84(4) of the Constitution is also altered by inserting immediately after the words ‘Judge of the Federal High Court’ in line 4, the word ‘President of the National Industrial Court, Judge of the National Industrial Court.’37 Section 240 of the 1999 Constitution is also altered by inserting immediately after the words ‘Federal High Court’ in line 3, the words ‘the National Industrial Court.’38 Also, the marginal note of section 243 of the 1999 Constitution is altered by inserting immediately after the words ‘Federal High Court’, the words ‘National Industrial Court.’39 Section 287(3) of the 1999 Constitution has also been altered by inserting the ‘National Industrial Court’ immediately after, ‘the Federal High Court’, in lines 1 and 4 respectively.40 4. Civil Jurisdiction of the NICN The Third Alteration Act provides for clarity and expansiveness of the jurisdiction of the National Industrial Court. In addition to the exclusive jurisdiction conferred on the NICN by Trade Dispute Act of 1976 (as amended) and section 7 of the 2006 NIC Act (all of which are now reproduced in section 6 of the Third Alteration Act and section 254C of the 1999 Constitution, as amended), the NICN has jurisdiction to the exclusion of other courts in civil matters and matters relating to or connected with any of the following: labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith;41 relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Workmen’s Compensation Act or any other Act 35 As above. 36 Section 2 of the Third Alteration Act. 37 Section 3 of the Third Alteration Act. 38 Section 4 of the Third Alteration Act. 39 Section 5(a) of the Third Alteration Act. 40 Section 7 of the Third Alteration Act. 41 Section 254(C), sub-section (1)(a) of the Constitution (as amended). Page | 137 AYENI: A Critical Examination of the Criminal Jurisdiction of the National Industrial Court of Nigeria or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;42 relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or an industrial action and matter connected therewith or related thereto;43 relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;44 relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from;45 relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;46 relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;47 relating to connected with or pertaining to the application or interpretation of international labour standards;48 connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;49 and such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly;50 and relating to or connected with the registration of collective agreements.51 5. Criminal jurisdiction of the NICN The scope of the criminal jurisdiction of the National Industrial Court is set out in the Third Alteration Act. First, while referring to the civil jurisdiction of the NICN, the Third Alteration Act inadvertently provides that ‘the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matter…. and such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly.’52 This implies that the National Assembly may confer on the NICN exclusive criminal jurisdiction or additional exclusive civil jurisdiction if the National Assembly considers it appropriate. More specifically, subsection 5 of section 254C of the 1999 Constitution (as amended) provides: ‘The 42 Section 254(C), sub-section (1)(b) of the Constitution (as amended). 43 Section 254(C), sub-section (1)(c) of the Constitution (as amended). 44 Section 254(C), sub-section (1)(d) of the Constitution (as amended). 45 Section 254(C), sub-section (1)(e) of the Constitution (as amended). 46 Section 254(C), sub-section (1)(f) of the Constitution (as amended). 47 Section 254(C), sub-section (1)(g) of the Constitution (as amended). 48 Section 254(C), sub-section (1)(c) of the Constitution (as amended). 49 Section 254(C), sub-section (1)(i) of the Constitution (as amended). 50 Section 254(C), sub-section (1)(l) of the Constitution (as amended). 51 Section 254(C), sub-section (1)(m) of the Constitution (as amended). 52 See section 254(C)(1)(l)(iii) of the Constitution as amended. [Emphasis mine] Page | 138 AFJCLJ 4 (2019) National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law.’53 There is at least two possible ways to construe the foregoing provision. First, it has been interpreted to mean that the criminal jurisdiction conferred on the NICN is only in respect of the criminal matters that may arise from any of the items or matters over which civil jurisdiction has been conferred on the NICN by the Constitution and not general criminal jurisdiction created by the Criminal Code or Penal Code.54 It does not confer jurisdiction on the NICN to hear and determine all criminal cases simply because they arose in the course of employment or place of work.55 For example, section 254C(1) (i) of the 1999 Constitution (as amended) confers on the NICN exclusive civil jurisdiction over issues of child labour, child abuse and human trafficking. By virtue of section 254C – (5) of the 1999 Constitution (as amended), the NICN, it can be argued, has criminal jurisdiction on any criminal cause or matter arising from issues of child labour, child abuse and human trafficking. Therefore, the NICN will have concurrent criminal jurisdiction with High Courts over offences committed under sections 21 and 22 of the Child Rights Act, which prohibits child marriage; section 24 of the Act, which prohibits subjecting a child to tattoos or marks; section 25, which prohibits the exposure of children to narcotics and activities relating thereto; and section 26, which prohibits the use of children in criminal activities.56 The second arm of the criminal jurisdiction conferred on the NICN by virtue of section 254C(5) of the Constitution (as amended) relates to offences created by relevant labour related statutes such as the Factories Act, Trade Disputes Act, Trade Unions Act, Workmen’s Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws. There are two justifications for arguing that the NICN has criminal jurisdiction over offences created by relevant labour related statutes. Section 254C(5) of the Constitution provides that the NICN shall have jurisdiction in criminal causes and matters arising from: (a) any cause or matter of which exclusive civil jurisdiction is conferred on the NICN by section 254C(1); and (b) any other Act of the National Assembly or by any other law. While (a) above provides NICN with a very wide and expansive criminal jurisdiction covering any offence stated in the labour statutes of which exclusive civil jurisdiction has been conferred on the NICN, (b) relates somewhat narrowly to Acts of the National Assembly or other laws expressly conferring criminal jurisdiction on the NICN. 53 See section 6 of the Third Alteration Act. [Emphasis mine] 54 B Atilola, M Adetunji and M Dugeri (n.27) p 38. 55 As above. 56 See B Atilola, M Adetunji and M Dugeri (n.27) for further arguments along this line. Page | 139 AYENI: A Critical Examination of the Criminal Jurisdiction of the National Industrial Court of Nigeria It is interesting to note that most of the labour related statutes do not expressly or directly confer criminal jurisdiction on the NICN. For instance, section 80(1) of the Labour Act Cap 198 Laws of the Federation of Nigeria 1990 provides: ‘A Magistrate's Court (or, in a state where a magistrate's court has no civil jurisdiction, a district court) shall have jurisdiction to hear complaints under section 81 of this Act.’ Similarly, section 50(1) of the Trade Unions Act57 confers on the Magistrate Court authority to assume criminal jurisdiction in respect of any offence under the Act committed by a trade union or an official of such union.58 Conversely, section 19 of the Trade Dispute Act 1990 established the National Industrial court and vests it with exclusive jurisdiction over all matters under the TDA relating to trade dispute.59 After a careful review of all labour related statutes and their provisions on jurisdiction, Yusuf Alli is of the view that the Industrial Arbitration Panel and the National Industrial Court enjoyed exclusive civil jurisdiction under most of the statutes while the Magistrate's court and courts of its equivalent jurisdiction are vested with criminal jurisdiction over labour offences.60 While only a very narrow criminal jurisdiction (if any) has been expressly conferred on the NICN by existing labour statutes, the first arm of section 254C(5) contemplates a situation where jurisdiction over all criminal causes and matters arising under the Factories Act, Trade Disputes Act, Trade Unions Act, Workmen’s Compensation Act and any other labour related statutes is vested on the NICN, concurrently with other courts that previously have criminal jurisdiction thereon. For the purpose of exercising its criminal jurisdiction under section 254C(5) of the Constitution (as amended), the President of the NICN may hear and determine or assign a single judge of the court to hear and determine such matters.61 While exercising its criminal jurisdiction, the NICN may apply the provisions of the Criminal Code, Penal Code, Criminal Procedure Code and the Evidence Act as the case may be.62 The NICN shall have all the powers of a High Court while sitting on a criminal case;63 and appeal shall lie from its decision to the Court of Appeal as of right.64 6. Challenges and prospects of the criminal jurisdiction of NICN Although the criminal jurisdiction of the NICN under the Constitution (Third Alteration) Act was given the force of law by presidential assent on 8th February, 2011, the very first official challenge to 57 Trade Unions Act, Cap 437, Laws of the Federation 1990. 58 The relevant magistrate court is the one having jurisdiction where the registered office of the union in question is situated. 59 See Trade Dispute Act 1990, section 20. The Trade Unions Act, 1990 was amended by the Trade Unions (Amendment) Decree (No. 4 of 1996) and also by the Trade Unions (Amendment) Decree No. 1 of 1999. 60 YO Ali (n.8). 61 Section 254E(2), 1999 Constitution (as amended). 62 Section 254F(2) 1999 Constitution (as amended). 63 Section 254(C)(6), 1999 Constitution (as amended). 64 Section 254(D)(1), 1999 Constitution (as amended). Page | 140 AFJCLJ 4 (2019) this jurisdiction came soon afterward in the form of the Constitution of the Federal Republic of Nigeria, 1999 (Fifth Alteration) Bill, 2012.65 The Constitution (Fifth Alteration) Bill 2012 proposes about 52 alterations to certain provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) relating to the Judicature.66 The alterations affect, among other things - (a) the appellate jurisdiction of the Supreme Court by providing that appeals from the Court of Appeal on interlocutory decisions and other matters shall be only by leave of the Supreme Court; (b) the traditional jurisdiction of the Federal High Court has been streamlined to preserve those core jurisdiction of the Federal High Court, particularly those that affect the Government of the Federation and its agencies. The new arrangement also creates another class of jurisdiction to be exercised concurrently by both the Federal High Court and the State High Court, respectively; (c) The membership of the National Judicial Council and the Federal Judicial Service Commission; and (d) the appointment, removal and pension rights of judicial officers.67 The relevant provision of the Constitution (Fifth Alteration) Bill 2012 for the purpose of this paper is section 20. Under section 20, the Bill proposes to amend section 254C of the Constitution (as amended by section 6 of the Constitution (Third Alteration) Act 2011. The ipsissimma verba of section 20 of the Bill is reproduced below: (1A) Notwithstanding the provisions of subsection 1 of this section, the National Industrial Court shall have and exercise concurrent jurisdiction with other High Courts in civil causes and matters: (a) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations, trade unionism and employer’s associations; (b) specified in subsections (a), (b), and (f) where they relate to contract of employment; and (c) by deleting subsection (5).68 The Sub-section (5) which the Bill seeks to delete is the very basis of the criminal jurisdiction of the National Industrial Court, which is the focus of this paper. The first point that needed to be made is that although section 254(C)(5) of the Constitution (as amended) is the sub-stratum of the NICN’s criminal jurisdiction, it is not the only provision that entrusts the NICN with Criminal Jurisdiction. Thus deleting only section 254C(5) of the Constitution does not change much. Further, the proposal to delete section 254C(5) is baseless for a number of other reasons. First, the criminal jurisdiction vested 65 See the Schedule to the Constitution of the Federal Republic of Nigeria (Third Alteration) Bill 2010 and the Constitution of the Federal Republic of Nigeria, 1999 (Fifth Alteration) Bill, 2012, Page | 141 AYENI: A Critical Examination of the Criminal Jurisdiction of the National Industrial Court of Nigeria on the NICN by virtue of section 254C(5) is concurrent with other Courts. For the avoidance of doubt, the ipsissimma verba of sections 254C(1) and 254C(5) is again reproduced below. Subsection 1 of section 254C provides thus: Notwithstanding the provisions of section 251, 257, 272 and anything contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters.69 Subsection 5 of section 254C provides thus: ‘The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law.’70 The phrase ‘to the exclusion of any other court’ used in relation to the civil jurisdiction of the NICN under section 254C (1) is clearly missing in section 254C (5), and there is no denying the fact that the intention of the legislature is to create a concurrent jurisdiction. The Latin maxim is ‘Expressio Unius Est Exclusio alterius: the express mention of one thing is the exclusion of the other. Thus, the provision of section 254C (5) of the 1999 Constitution (as amended) does not preclude other courts from exercising criminal jurisdiction. Secondly, section 254C (5) of the 1999 Constitution as amended vests on the NICN only very limited criminal jurisdiction. To be applicable, the action over which NICN seeks to assume criminal jurisdiction must relate to ‘any cause or matter of which civil jurisdiction is conferred on the National Industrial Court’ by section 254C (1) of the 1999 Constitution as amended, by other Act of the National Assembly or by any other law.71 Another reason to support the criminal jurisdiction of the NICN is because the provision is not a novelty, and Nigeria is not the first or the only country to have vested criminal jurisdiction on its industrial court. For instance, in Australia, especially in the Australian Capital Territory (ACT), industrial courts have criminal jurisdiction equivalent to that of magistrate’s courts.72 Also, section 7 of the Industrial Relations Act 1971 of Trinidad and Tobago provides:73 69 Emphasis mine. 70 Section 6 of the Constitution (Third Alteration Act) 2011. 71 Section 254C(5) of the 1999 Constitution as amended. 72 See the Australian Magistrate Court (Industrial Proceedings) Amendment Act 2013. See also CCH News, ‘ACT gets dedicated Industrial Court’ Page | 142 AFJCLJ 4 (2019) 7.(1) In addition to the powers inherent in it as a superior court of record, the Court shall have jurisdiction – (a) to hear and determine trade disputes; (b) to register collective agreement and to hear and determine matters relating to the registration of such agreements; (c) to enjoin a trade union or other organisation or workers or other persons or an employer from taking or continuing industrial action; (d) to hear and determine proceedings for industrial relations offences under this Act; (e) to hear and determine any other matter brought before it, pursuant to the provisions of this Act. Similarly, section 20 of the Industrial Court Act of Kenya 2011 provides that the Industrial Court established under that Act may act without undue regard to technicalities and shall not be strictly bound by rules of evidence except when presiding over criminal matters.74 Section 29 of the Kenyan Industrial Court Act also provides that the Chief Justice of Kenya may appoint certain magistrates to preside over cases involving employment and labour relations in respect of any area in Kenya,75 and these magistrates shall have jurisdiction and powers to handle among others disputes relating to offences defined in any Act of Parliament dealing with employment and labour relations.76 However, all appeals (including especially criminal appeals) from the magistrate’s courts on matters relating to employment and labour lie with the Industrial Court.77 It must be noted however that in some countries with specialized labour courts such as South Africa and Tanzania, labour courts have purely civil jurisdictions while jurisdiction over labour offences created under labour statutes are conferred on criminal courts or magistrate’s courts as the case may be.78 For instance, in Tanzania, the power to impose punishment for the offences created under the Employment and Labour Relations Act (2004) of Tanzania is vested in the District courts and the magistrate’s courts.79 The labour court has purely civil jurisdiction. The same is true of South Africa. In South Africa, criminal courts are responsible for trying offences under the Labour Relations Act of 1995.80 Also, the Basic Conditions of Employment Act (1997) of South Africa provides that the labour court shall have exclusive jurisdiction in respect of all matters in the Act, except in respect of offences.81 Section 93(1) of the South African Basic Conditions of Employment Act specifically confers on magistrates’ court jurisdiction to impose a penalty for any offence provided for in the Act. What is more? Some very highly industrialized 74 See section 20(1) of the Industrial Court Act No. 2 of Kenya 2011. 75 See section 29(1) of the Industrial Court Act of Kenya 2011. 76 See section 29(3) of the Industrial Court Act of Kenya 2011. 77 See section 29, sub-section (2)-(5) of the Industrial Court Act of Kenya 2011. 78 See Basic Employment Conditions Act 1997 and the Labour Relations Act of 1995 of South Africa. 79 See section 102 of the Employment and Labour Relations Act, 2004 of Tanzania. 80 See generally PC Wagener, ‘The concurrent jurisdiction of the Labour Court and the High Court’ LLM Dissertation, University of Port Elizabeth, South Africa, 2002, pp 1-139. 81 See section 77(1) of the Basic Conditions of Employment Act 1997 of South Africa. Page | 143 AYENI: A Critical Examination of the Criminal Jurisdiction of the National Industrial Court of Nigeria countries such as the United States of America are yet to have a specialised labour court let alone conferring criminal jurisdiction on them.82 7. Conclusion Specialization is the toast of the moment among progressive and fast-growing judiciaries across the world. The trend in labour and employment matters is to establish specialized courts to oversee labour or industrial disputes. Countries such as Gabon, Botswana, South Africa, Tanzania, Kenya, England and Wales, Germany, Italy, Northern Ireland, and Swaziland have specialized courts for settling labour and industrial disputes.83 It is frequently said that ‘if you cannot specialize the court, specialize the judge’.84 Specialization is a way of achieving excellence and thoroughness. The strong point of specialized courts such as the NICN is their informality, expertise, simplicity and timely and expeditious dispensation of cases. The Constitution of the Federal Republic of Nigeria 1999 (Third Alteration Act) 2010 was enacted to achieving these objectives. The Constitution (Third Alteration) Act 2010 was passed by both Chambers of the National Assembly.85 Also thirty-three of the thirty-six states Houses of Assembly unanimously passed resolutions approving the said constitutional alteration in accordance with section 9 (2) of the 1999 Constitution. The Act was consequently signed by the President, Federal Republic of Nigeria on 4th March, 2011.86 There is no doubt that the Constitution (Third Alteration) Act 2010 is a watershed in the annals of labour law development in Nigeria. The major thrust of the Act was to bring all causes and matters covered by International Labour Organisation (ILO) Conventions under the exclusive jurisdiction of the NICN. Now, the NICN is not just a superior court of record but a court with constitutionally guaranteed exclusive civil jurisdiction in labour matters. The most revolutionary provision of the Third Alteration Act and which is the main thrust of this paper is the new section 254C(5) of the Constitution which confers limited criminal jurisdiction on the NICN. It has been observed in this paper that the criminal jurisdiction conferred on the NICN by virtue of section 254C (5) of the Constitution is concurrent, and not exclusive. The paper also described the scope of the criminal jurisdiction In terms of criminal matters that may arise from any of the matters over which civil jurisdiction has been conferred on the NICN by the Constitution and also in terms of 82 The main problem therefore is what this paper term protiphobia or primuphobia, that is the fear of being first or the fear of taking the lead. 83 See DBE Slade, Tolley’s Employment Handbook, 24th Edition, 2010, LexisNexis, p. 458. 84 B Atilola, M Adetunji and M Dugeri (n.27) p. 24. 85 The Constitution (Third Alteration Act) 2010 was passed by the Senate 14 December, 2010 and by the House of Representatives on 15 December 2010. See the Schedule to the Constitution of the Federal Republic of Nigeria (Third Alteration) Bill 2010. 86 See the Schedule to the Constitution of the Federal Republic of Nigeria (Third Alteration) Bill 2010. Page | 144 AFJCLJ 4 (2019) offences created by other relevant labour related statutes such as the Factories Act, Trade Disputes Act, Trade Unions Act, Workmen’s Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws. On the question whether the criminal jurisdiction of the NICN is necessary or desirable, the paper highlighted the proposals contained in the Constitution of the Federal Republic of Nigeria, 1999 (Fifth Alteration) Bill, 2012, one of the most far-reaching effects of which is to expunge from the Constitution, the criminal jurisdiction of the NICN. This, it is submitted, is the clearest demonstration at the highest judicial echelon that the criminal jurisdiction conferred on the NICN is neither necessary nor desirable. It is however the position and submission of this paper that if the criminal jurisdiction vested on the NICN is properly put into operation, it will go a long way in contributing to the overall mandate of the National Industrial Court. While many of the provisions in the Constitution (Fifth Alteration) Bill 2012 are laudable, it is the position of this paper that the proposal to expunge the criminal jurisdiction of the National Industrial Court from the Constitution needs to be jettisoned or at least deferred. Rather than pursue a reversal to the pre-Third Alteration Act status quo, as is currently being canvassed in some quarters by proponents of the Fifth Alteration Act, it is better to give the new National Industrial Court of Nigeria time to nurture itself and develop its limited criminal jurisdiction. Any attempt at this stage to expunge the criminal jurisdiction of the NICN from the Constitution will be ‘premature, unnecessary; and an attempt to throw out of gear the already settled status, power, jurisdiction and reposition of the NICN’87 Time reveals everything. Only by giving the NICN time to nurture this jurisdiction can we truly tell whether the jurisdiction is indeed a constitutional watershed or yet another fly in the ointment. 87 See B Atilola, M Adetunji and M Dugeri (n.27) p 31. Page | 145 UGBOMA: The Imperative of Littoral States’ Cooperation in Tackling the Scourge of Sea Piracy in the Gulf of Guinea: A Case Study of the Fight against Piracy in the Malacca and Singapore Straits THE IMPERATIVE OF LITTORAL STATES’ COOPERATION IN TACKLING THE SCOURGE OF SEA PIRACY IN THE GULF OF GUINEA: A CASE STUDY OF THE FIGHT AGAINST PIRACY IN THE MALACCA AND SINGAPORE STRAITS*1 Abstract The importance of maritime security and safety can never be overemphasized especially when looked upon from the backdrop of the fact that a greater percentage of world commerce is carried out via maritime transport2. Yet, the maritime industry continues to record on an incremental level, cases of maritime mischief and depredation3. These cases of maritime crime, especially piracy have attracted international attention at different times to the Straits of Malacca and the Gulf of Guinea. While the cases of piracy in the Straits of Malacca and Singapore have been significantly reduced to an almost non-existent level as a result of the measures put in place by the littoral states in the region, the situation in the Gulf of Guinea grows from bad to worse4. This paper assessed the situations in the Straits of Malacca and Singapore and the Gulf of Guinea, made comparisons thereof and reviewed the legal mechanisms that have been put in place in the Straits of Malacca to see if such measures could be adapted and applied by littoral states- as a collective- or regional organisations in the Gulf of Guinea as a way of solving the challenges posed to international commerce by the threat of piracy in the region. In doing that, the paper looked at the geographical features and economic importance of the two water bodies and x-rayed the legal framework applied in the Malacca Straits. The paper made recommendations in relation to transplanting the model from Asia to Africa with the aim of putting an end to or reducing piracy in the Gulf of Guinea to the barest minimum. Keywords: Piracy, Gulf of Guinea, Straits of Malacca and Singapore, ReCAAP, Gulf of Guinea Commission 1. Introduction The most prominent contemporary source of the International law on piracy is in Articles 100-107 and 110 of the Law of the Sea Convention 1982. These provisions are on all fours with Articles 14-22 *Zino UGBOMA, LLB, BL, LLM, Lecturer, Faculty of Law, Baze University, Abuja. Email Address: [email protected]. Phone Number: 07030508042 2 The International Maritime Organisation reports that maritime transport is essential to the world‟s economy as over 90% of the world‟s trade is carried by sea and it is, by far, the most cost-effective way to move en masse goods and raw materials around the world. https://business.un.org/en/entities/13 Accessed 18/3/2019 3https://www.marineinsight.com/infographics-2/infographic-annual-maritime-crime-statistics-for-2015- dryad-maritime/ accessed 18 March 2019 4https://www.icc-ccs.org/index.php/1259-imb-piracy-report-2018-attacks-multiply-in-the-gulf-of-guinea Accessed 21 March 2019. Page | 146 AFJCLJ 4 (2019) Geneva Convention on the High Seas. This fact therefore lends credence to the postulation that the provisions relating to piracy in the LOSC 1982 are in fact a codification of Customary International Law because the States which are not signatories to the LOSC 1982 are inadvertently parties to the 1958 Geneva Convention The Law of the Sea Convention 1982 provides in Article 101, that piracy is; (a) Any illegal acts of violence or detention or any act of depredation committed for private ends by the crew or the passengers of a private ship or private aircraft and directed (i) On the high seas against another ship or aircraft or against persons or property on board such ship or aircraft (ii) Against a ship, aircraft, person or property in a place outside the jurisdiction of any State (b) Any act of voluntary participation in the operation of a ship or of an aircraft with the knowledge of facts making it a pirate ship or aircraft (c) Any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b)5. From the definition provided by the LOSC it can be seen that five elements are needed for an act to qualify as an act of piracy, namely that: The act must be acts of violence, detention and or depredation; these acts must be carried out for private ends; These acts must be perpetrated by crew or passengers of one ship against another ship; These acts must occur in the high seas or in waters outside the jurisdiction of any State. Academics have tended towards seeing the elements of the definition as too narrow and one writer points out that; The definition of piracy is rather narrow as it includes only actions on the high seas and only actions undertaken by one ship against another ship. So forms of violence conducted on the territorial seas as well as without the involvement of two ships such as the violent taking of control of a ship by members of crew or passengers even when the follow up consists of holding to ransom the ship and its crew and passengers are not included6. The fears of the above referenced writer is real as the position of the law in relation to vessel to vessel attacks may not be applicable where for example, armed men on an offshore platform seize a distressed vessel that has anchored on it, or where armed men attack an offshore installation7 or even a 5 These provisions namely Article 101-107 are on all fours with the Articles 14-22 Geneva Convention on the High Seas 6 T Treves. (2009) „Piracy, Law of the Sea and Use of Force. Developments off the Coast of Somalia‟- European Journal of International Law Vol. 20.2. 7 In 2008, Militants in speedboats attacked the Bonga Oil Facility which is Royal Dutch Shell‟s main offshore facility in Nigeria, cutting the country‟s oil output by a tenth and raising fears of a new campaign against deep-water installations. This could not be termed piracy on account of a dearth of legal instruments on piracy in municipal law and the shortcomings of the Law of the Sea Convention on Piracy. Page | 147 UGBOMA: The Imperative of Littoral States’ Cooperation in Tackling the Scourge of Sea Piracy in the Gulf of Guinea: A Case Study of the Fight against Piracy in the Malacca and Singapore Straits situation could also arise where a crew or passengers forcefully take control of a vessel and carry out acts of violence and robbery and it will not amount to piracy under the convention because it had occurred from within the ship. The incident aboard the Achille Lauro is a pointer to this shortcoming8. Furthermore, reference to acts of violence or detention or any act of depredation without further provisions of a threshold may leave room for doubts as to the extent of violence that will suffice for an act of piracy. Another shortcoming on this point is the fact that the definition does not cover attempts to commit piracy. So while there may be mens rea9 present in the acts of potential pirates, a failed attempt to commit acts of piracy will not qualify as piracy10. Beyond the above highlighted conceptual shortcomings of piracy as contained in the Law of the Sea Convention, two other very contentious issues emanating from the definition of piracy in the LOSC deserving special mention are; Whether the requirement that piracy be committed for private ends excludes politically motivated offences or other altruistic pursuits jeopardizing maritime safety11 and ; the consequence of limitation upon jurisdiction that the crime must occur on the high seas or outside the jurisdiction of any State12. The major challenge with this definition of piracy in international law as it relates to the subject matter is the fact that most of the piratical acts that occur in the Straits of Malacca and the Gulf of Guinea happen in the territorial seas of the littoral states. When such a situation occurs, they cannot be properly termed piracy in international law because they have fallen short of the geographical requirement in the definition of piracy as put forward by the Law of The Sea Convention. It is on account of this challenge that littoral states and supranational organisations are of necessity required to step into the saddle and provide legislation to effectively deal with the challenge of Piracy. The SUA Convention is one of such attempts13. Beyond the SUA Convention, the International Maritime https://uk.reuters.com/article/uk-nigeria-shell-attack/nigeria-attack-stops-shells-bonga-offshore-oil- idUKL1961289220080620 Accessed 2 April 2019 8 On October 7th 1985, four members of the Palestinian Liberation Front aboard the eponymous Italian Passenger ship hijacked the ship and demanded the release of Palestinian prisoners in foreign jails. Since the offenders operated from within the ship, their action fell short of being correctly classified as piracy 9 The mental element which together with the actus reus (physical element) constitute the commission of an offence 10 Yoshifunmi Tanaka reports that at UNCLOS 1 negotiations a proposal by the British delegation to include attempts in the definition of piracy was defeated. Y, Tanaka. International Law of the Sea. (Cambridge University Press (2001) Pg. 355. 11 In Nigeria, the Movement for the Emancipation of the Niger Delta ceaselessly embarked on a campaign of economic sabotage most of which was carried out in the Gulf of Guinea. 12 (n. 7) Pg. 4 13 Several acts of maritime mischief have escaped being termed piracy on account of the customary international law definition of the offence as contained in the Law of the Sea Convention which makes it compulsory that for the offence to be rightly termed piracy, it must have occurred in the high seas or in areas beyond the jurisdiction of any State; the attack must have proceeded from one vessel against the Page | 148 AFJCLJ 4 (2019) Organisation recognizing the fact that the definition of piracy under the Law of the Sea Convention does not effectively cater for the more prevalent forms of attacks against sea going vessels draws a distinction between attacks against ships on the high seas and attacks against ships in territorial waters. It tags the latter attacks as „armed robbery against ships‟ and defines it as; „(a) Any illegal acts of violence or detention or any act of depredation committed for private ends and directed against a ship or against persons or property on board such ship, in a place within a contracting party‟s jurisdiction over such offences: (b) Any act of voluntary participation in the operation of a ship with knowledge of facts making it a ship for armed robbery against ships; (c) Any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b).‟ This is to draw a clear line between international and domestic offences14 and to give littoral states the impetus to tackle attacks against vessels that occur within the territorial waters of such states. 2. Gulf of Guinea The Gulf of Guinea is in Africa and is located within the West and Central African coastline. It stretches to over six thousand nautical miles and runs through at least twenty different African States. Its location is economically strategic to many nations within and beyond Africa as a lot of resources are transported from Africa to other continents of the world on its routes. The resources transported through these waters include crude oil, refined petroleum products, liquefied natural gas, iron ore, etc. This has made the waters attractive to criminals especially pirates who capitalize on the huge flow of traffic and poor security to prey on vessels carrying all sorts of cargo. It has led to the unfortunate victim vessel and that the act must have been for private ends. In order to plug the loopholes in the LOSC and particularly as a response to the politically motivated hijackings of the „80s especially the Achille Lauro incident, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 was drafted and adopted. A brief relay of the background to the conventions birth will suffice at this point. In 1985, The Achille Lauro, an Italian flagged cruise ship which was sailing from Alexandra to Port Said was seized by some members of the Palestine Liberation Front, a faction of the Palestine Liberation Organisation. The hijackers killed one passenger, a physically challenged American. Some characterized the hijacking as piracy while others did not see it as such because of the perceived political motives of the hijackers and the fact that a second ship or vessel was not involved. The supposed gaps coupled with the stark reality of the incident gave the impetus for Italy supported by Austria and Egypt to propose a convention to address maritime terrorism. Essentially, the resulting SUA Convention eliminates the three restrictions contained in the LOSC. It is imperative to note however that unlike the LOSC which is reflective of customary international law and therefore has universal application, the SUA Convention is only binding on State parties to it. 14 D, Guilfoyle. Shipping Interdiction and Law of the Sea (Cambridge University Press 2011) Pg. 46 Page | 149 UGBOMA: The Imperative of Littoral States’ Cooperation in Tackling the Scourge of Sea Piracy in the Gulf of Guinea: A Case Study of the Fight against Piracy in the Malacca and Singapore Straits situation of the waters being subject to negative happenings and bad publicity as pirates, human traffickers, drug traffickers, illegal fishing and illegal oil bunkering have over the years made the waters unsafe. The International Maritime Organisation reports that „2017 saw an increase in incidents of armed robbery in the region from 2016. Although the numbers of seafarers affected were slightly down, there were three more successful kidnappings in 2017 than in 2016. One hundred seafarers were taken hostage, 90 of whom were held longer than one day and at least two of them were killed. Representing a significant increase in the level of violence. 2016‟s geographic patterns were seen again in 2017 with the overwhelming majority of attacks happening off the Niger Delta. No attacks were recorded south of the equator. In what may be a new trend, a series of attacks took place on anchored ships in ports along the western coast of Africa from Sierra Leone to Cape Verde15. It is as a result of challenges of this nature in the gulf of guinea, that the littoral states conceptualized the idea of a regional organisation that will oversee the management of issues of common interest to the states. Thus the Gulf of Guinea Commission was established by a treaty signed in Libreville Gabon on July 3 2001 by Angola, Congo, Gabon, Nigeria and Sao Tome and Principe16. Cameroun and Democratic Republic of Congo joined the Gulf of Guinea Commission in 2008 and membership is 15 Sourced from www.oceansbeyondpiracy.org/reports/sop/west-africa accessed 20 March 2019 16 Member states are Angola, Cameroun, Congo, DRC, Equatorial Guinea, Nigeria, Sao Tome and Precipice. Page | 150 AFJCLJ 4 (2019) open to other states in the Gulf of Guinea region for purposes of transforming the sub region into a zone of peace and security. Article 3 of the Gulf of Guinea Charter provides for the objectives of the commission and reference is made thereat to „to strengthen mutual confidence, peace and security conducive to the harmonious development of States. Beyond this reference, there appears to be no other direct or indirect reference to the security challenges faced in the region. The Additional Protocol to the Charter is specifically in reference to alternative dispute resolution and does not bear any direct focus on the security challenges in the Gulf of Guinea. Over the years the gulf of guinea despite the existence of the Gulf of Guinea Commission has been tagged as a location of high piracy attacks and that has continued on an incremental level. In 2018 the International Chamber of Commerce of the IMB reports that „piracy increased on the world‟s seas in 2018 with a marked rise in attacks against ships and crews around West Africa. The Gulf of Guinea remains increasingly dangerous for seafarers. Reports of attacks in waters between Ivory Coast and Democratic Republic of Congo more than doubled in 2018 accounting for all six hijackings worldwide, 13 of the 18 ships fired upon, 130 of the 141 hostages taken globally and 78 of 83 seafarers kidnapped for ransom. In the last three months of 2018, 41 kidnappings were recorded in waters off Nigeria alone. On 27 October 2018, 11 crew were kidnapped from a container vessel 70 nautical miles off bonny island, Nigeria. Two days later, Nigerian pirates in a speedboat hijacked a tanker underway 100 nautical miles off Pointe Noire Congo. Eight of the 18 crew were kidnapped. These are just two recent examples of how armed criminals are reaching further out to sea and targeting a wider variety of ships, bulk carriers, container vessels and general cargo vessels in addition to local attacks on tankers, oil industry support vessels and fishing vessels17„. This sad commentary therefore calls to question the effectiveness of the Commission in handling the security challenges in the region. The Nigerian government realizing that the challenges of criminality off its coast is caused by land based socio-economic factors has put in place intervention agencies like the Nigerian Maritime Administration and Safety Agency, Niger Delta Development Commission, and most recently a Ministry of the Niger Delta to help tackle the problems on land in the realization that such measure could positively affect security off its coast18. It has also granted amnesty to repentant militants in the Niger Delta region and designed several programs to help reintegrate them into society. The legislature is reportedly also working at enacting laws that deal with piracy in territorial 17https://www.icc-ccs.org/index.php/1259-imb-piracy-report-2018-attacks-multiply-in-the-gulf-of-guinea Accessed 21 March 2019. 18 The IMO reports that in 2017 there was only one incident where the Nigerian Navy was able to act swiftly and arrive at the scene of a pirate attack. The pirates were arrested while attacking the MT Maximus and were arraigned in 2017. They were however charged with related offenses on account of the dearth of piracy laws in the Nigerian legal system. Sourced from www.oceansbeyondpiracy.org/reports/sop/west- africa Accessed 20 March 2019 Page | 151 UGBOMA: The Imperative of Littoral States’ Cooperation in Tackling the Scourge of Sea Piracy in the Gulf of Guinea: A Case Study of the Fight against Piracy in the Malacca and Singapore Straits waters. This however has proven to be too little to have any significant effect in the entire gulf of guinea as the pirates traverse national maritime boundaries is their enterprise. 3. Straits of Malacca and Singapore19 The Straits of Malacca and Singapore are reported to be among the busiest sea lanes in the world with a traffic volume of around seventy thousand vessels a year. One third of the world‟s trade passes through it. In its wider reaches several hundred kilometers across large areas of the Malacca Straits are beyond territorial waters of littoral States but in its narrow southern end, much of it clearly falls within the territorial jurisdiction of Malaysia, Indonesia and Singapore. The fact that it is narrow and experiences dense traffic makes it very attractive for robbers operating in the sea.20 As much as it‟s peculiar physical features make it highly seductive to robbers, it also makes 19 “More than half of the world‟s merchant fleet capacity sails through the South China Sea each year and since the fastest way to China from Europe and the Middle East is by sea, a considerable amount of that traffic uses the Straits of Malacca and Singapore. As one of the busiest waterways in the world, 70,000 ships pass through the Strait of Malacca every year all of which must reduce their speed to 10knots due to the narrow sea lane making them vulnerable to pirate attacks. In the first quarter of 2006, there was an average of five attacks per week. Pirate attacks globally are estimated to cost as much as $16 billion in losses, of which a quarter is attributed to attacks in the Strait of Malacca alone”… J, Anderson. „A Sea of Change Reforming the International Regime to Prevent, Suppress and Prosecute Sea Piracy‟ (2013) JML&C Vol. 44 No 1 Pg. 64. Page | 152 AFJCLJ 4 (2019) it crucial for enhanced security as its narrow nature could enhance the possibility of a collision with other vessels or with rocks once there is a scuffle on board. Despite these obvious alluring features to criminals, the littoral states had pursued individual solution finding measures for a long time and persisted thereat even when it was apparent that such measures hardly ever yielded any significant result. One writer21 has identified a few obstacles to cooperation that existed among the States pertaining to the Straits in quelling piracy. He states that first, the areas governed by the traffic separation schemes are within the territorial waters of the three coastal States, and therefore any acts of violence and depredation here will remain a subject of the municipal criminal law matters of the Country in whose part of the strait the incident occurred. Furthermore, it may become impossible for the vessel to identify appropriately the exact waters in which the attack occurred. Also there exist unresolved maritime delimitation issues between the coastal States22. Another unfortunate barrier to effective policing of the Malacca Strait was the disposition of the States of Indonesia and Malaysia towards foreign assistance whereby the two countries perceive any assistance as some sort of infringement on their sovereignty. This issue changed significantly in 2004 as the ASEAN23 and the larger international community noted the massive increase in piratical attacks in the period of 1998- 2000, prompting Lloyds of London to declare the Straits of Malacca as a war risk area in 200524. This apparently had the effect of raising insurance premiums for shippers, distorting economic projections and generally negatively affecting the economy. It is against this backdrop that at the turn of the new century the countries bordering the Malacca straits realizing the futility of individual efforts decided to begin to work together towards having a collective solution to the challenge of piracy. One of the most effective efforts put together by the littoral states25, is the Malacca Strait Patrol26. 20 D, Guilfoyle. Shipping Interdiction and Law of the Sea (Cambridge University Press 2011) Pg. 54 21 R,C, Beckman, Issues of Public International Law Relating to Piracy and Armed Robbery against Ships in Malacca and Singapore Straits (1999) 3 Sing. J. Int'l & Comp. L. 512. www.heinonline.org Accessed 27 March 2019 22 D. Guilfoyle. Shipping Interdiction and Law of the Sea (Cambridge University Press 2011) Pg. 54 23 Association of South East Asian Nations 24 T. Lee & K McGahan (2015) Norm Subsidiarity and Institutional Cooperation: Explaining the Straits of Malacca Anti-Piracy Regime. The Pacific Review Vol. 28 (2015) Iss.4 529-552 DOI. Available at http://dx.doi.org/10.1080/09512748.2015.1012537 Accessed 8/03/2019. 25 Malaysia, Singapore, Indonesia and Thailand. Thailand joined with observer status in in 2005 and became a full member in 2008. 26 Additional information is sourced from the Singaporean Ministry of Defence website www.mindef.gov.sg accessed 8/3/2019. Page | 153 UGBOMA: The Imperative of Littoral States’ Cooperation in Tackling the Scourge of Sea Piracy in the Gulf of Guinea: A Case Study of the Fight against Piracy in the Malacca and Singapore Straits The Malacca Straits Patrol was formed in 2004 initially as a joint patrol initiative between Malaysia, Singapore and Indonesia27. It involved a year round patrol of the straits with the objective of discouraging sea robbers who capitalize on the geographical features of the strait to attack vessels and disappear into thin air. The MSP as it is called consists of a three prong structure namely; the Malacca Strait Sea Patrol (MSSP)28, The Eyes in the Sky (EIS)29, and the Intelligence Exchange Group (IEG)30. The MSP aims at coordinating security measures between and among the littoral states towards combating the scourge of piracy31. 4. Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia The major and most successful regional effort towards ensuring security in the Malacca and Singapore Straits is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, popularly called ReCAAP. The agreement which was finalized in 2004 but came into force in 2006 is the first multilateral treaty that could contribute to the effective implementation of the provisions of the Law of the Sea Convention relating to piracy and enhance international cooperation to prevent and suppress armed robbery against ships in the very region where such activities occurred most frequently. A glance at its member states will reveal that its membership transcends the ASEAN thus showing that the effects of piracy are felt far beyond the littoral states of the Malacca and Singapore straits.32It thus fills the gap left in the LOSC by its narrow definition of piracy reflecting traditional international law albeit at the regional level33 A major catalyst that led to the drawing up of the instrument was the 1999 hijacking of the MV Alondra Rainbow in the Malacca Straits. The vessel 27 Initially named MALSINDO but renamed MSP in 2006. 28 This was launched in 2004 and it brought together the navies of the littoral states together towards conducting joint sea patrols and sharing of information between ships and naval operation bases. 29 This involves the conduct of combined maritime air patrol over the straits to compliment the naval patrols. Such combined air surveillance will be manned by officers from the littoral states under the command of mission commander from the host country 30 This initiative supports the sea and air patrols and coordinates the information sharing platform called the Malacca Straits Patrol Information System. With this system in place, the sea and air patrol teams can easily pass information of an unfolding incident at all security apparatus on a real time basis. 31 Megan Anderson has written extensively on the subject matter in “The Malacca Strait Patrol: A Maritime Security Network Analysis” available at https://www.researchgate.net/publication/295907874_The_Malacca_Strait_Patrol_A_Maritime_Security_ Network_Analysis Accessed 24 February 2019 32 This multilateral agreement has twenty signatories. The signatories are; Australia, Bangladesh, Brunei, Cambodia, China, Denmark, India, Japan, South Korea, Laos, Myanmar, Netherlands, Norway, Philippines, Singapore, Sri Lanka, Thailand, United Kingdom, United States and Vietnam. 33 Moritaka Hayashi- Introductory Note to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia 44 ILM 826(2005). Sourced @ www.heinonline.org Accessed 24 February 2019. Page | 154 AFJCLJ 4 (2019) was owned by Japanese interests, flagged to Panama and crewed by Filipinos. The vessel was hijacked and taken over by pirates who bundled the crew into a small life boat and set them adrift for eleven days. The vessel was repainted and operating with a new name and the flag of Belize when it was arrested by the Indian navy. It was this incident which received high media attention that prompted the Japanese government to moot the idea of concrete cooperative measures between Asian Countries to combat the menace34 The purpose or aim of the agreement is to strengthen regional cooperation and coordination of all States affected within Asia to prevent and suppress effectively piracy and armed robbery against ships and to that end establishes a new regional mechanism for collecting and sharing relevant information through an Information Sharing Centre in Singapore35. The instrument expands the scope of its concern beyond piracy to include acts of armed robbery against ships. So the definition of piracy as contained in the LOSC is also contained verbatim in ReCAAP36. The instrument then defines armed robbery against ships in its Article 1(2)37.This definition of armed robbery against ships is in accordance with the definition put forward and adopted by the International Maritime Organisation in its Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships. The implication of Article 1(2) is that apart from criminalizing piracy in territorial waters as armed robbery, it also eliminates the two ship requirement as contained in the definition of piracy in the LOSC. This has the effect of making all piratical acts that hitherto did not fall within the definition as provided for in the LOSC to become captured by the treaty. The treaty makes it imperative for state parties to implement the agreement towards the end of combating piracy and armed robbery against ships38, it makes clear that the provisions of the treaty shall not prejudice the obligations of state parties under other international instruments especially the LOSC39, it provides further that nothing in the treaty shall affect the immunities of war ships and other non-commercial 34 The Japanese initiative according to Hayashi did not emerge in Isolation as the United Nations and the IMO had put great effort into selling the idea to countries and regional blocks that mutual cooperation was important. ibid@pg826 35The role of the Information Sharing Centre is to facilitate the swift exchange and transmission of information with the aim improving incident reportage; to conduct critical analysis on the piracy and armed robbery situation in the Asian region; to support capacity building efforts of contracting parties towards greater efficiency in tackling piracy and armed robbery at sea. 36 Article 1(2) 37For the purposes of this Agreement, “armed robbery against ships” means any of the following acts (a) Any illegal acts of violence or detention or any act of depredation committed for private ends and directed against a ship or against persons or property on board such ship, in a place within a contracting party‟s jurisdiction over such offences: (b) any act of voluntary participation in the operation of a ship with knowledge of facts making it a ship for armed robbery against ships; any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b). 38 ReCAAP Article 2(1), 3(1) (2) 39 Article 2(2) Page | 155 UGBOMA: The Imperative of Littoral States’ Cooperation in Tackling the Scourge of Sea Piracy in the Gulf of Guinea: A Case Study of the Fight against Piracy in the Malacca and Singapore Straits state owned vessels40, it provides that the treaty will not prejudice any party in relation to disputes as to sovereignty under the LOSC41. It provides further that the treaty does not empower any state party to exercise jurisdiction within the territory of another state contracting party42. This particular article and its provisions are necessitated by genuine or well-founded fears expressed by the contracting parties about sovereign rights being tampered with by the treaty. The agreement establishes an Information Sharing Center based in Singapore43. It creates for the Information Sharing Centre a Governing Council and Secretariat44. This governing council is made of one member from each of the state parties and meets once a year and its principal role is policy formulation45. The treaty provides that the Secretariat will be headed by an Executive Director who is responsible for the day to day running of the Secretariat46. The Centre is funded by host state financing, voluntary contributions of States Parties, International organisations and other voluntary contributions that may be accepted by the Governing Council47. Article 7 provides generally for the functions of the Centre and this includes to receive information and the management of such information in relation to incidents of piratical attacks, ensuring there is free flow of information, collations and analysis of data of piratical attacks and armed robbery, preparation of reports based on data received and the dissemination of same to state parties, to alert state parties of imminent threats of pirate attacks, etcetera. It allows parties to establish a focal point for communications with the Centre48 and requires state parties to compulsorily ensure a free flow of information between its Centre and other competent authorities. It also enables state parties to request law enforcement cooperation either directly from State parties or through the Centre49. Further to the above the treaty encourages state parties in whose territory a suspected pirate or armed robber is resident to endeavor to extradite him for trial50. The treaty makes provision for mutual legal assistance of state parties such that where a suspect is on trial, state parties with evidence are required to upon request provide such evidence that will aid the successful trial of the suspect51. It provides also for dispute settlement between state parties by stating that where any dispute arises such shall be resolved by negotiations in 40 Article 2(3) 41 Article 2(5) 42 Article 2(6) 43 Art 4(1) 44 Article 4(3) 45 Article 4(4) 46 Article 4(7)(8) 47 Article 6(1) 48 Article 9 49 Art.10 50 Article 12. 51 Article 13 Page | 156 AFJCLJ 4 (2019) accordance with the principles of international law52. In situations where a state party decides to withdraw from the treaty, that state party will be required to submit an instrument of withdrawal submitted to the depository who shall subsequently notify other state parties. The withdrawal will take effect after 180 days53. The instrument is however criticized on the ground that there is no provision for hot pursuit through the high seas, beyond the EEZ and into the territorial sea of any of the State parties. This is a major setback taking into consideration the fact that in the absence of fool proof information sharing, a rogue vessel engaged in piratical acts may escape into the territorial sea of one of the parties and vanish into thin air. Furthermore an area of possible dispute is open by Article 2(4) which emphasizes that no act guaranteed under the agreement shall prejudice any party‟s position regarding any dispute concerning territorial sovereignty or any issues relating to the law of the Sea. Thus foreign vessels in pursuit may apprehend in the EEZ or contiguous zone of another party and claim that the action does not prejudice any claims to law enforcement competence in those areas. Article2 (5) seems like a contradiction of Article 2(4) when it states to the effect that one party cannot undertake in the territory of another, actions which are exclusively reserved for the other party by its national law54. Another area of criticism is in Articles 12 and 13 which merely require State parties to put their best endeavors to extradite or prosecute suspects and provide legal assistance when a suspect is being tried by a state party. This is would have been more effective if State parties were not just encouraged to put in their best endeavors but required by more strident demands making it an obligation on State parties to extradite or prosecute. The success of the ReCAAP in combating the scourge of sea piracy and armed robbery is glaring especially when looked at against the backdrop of the security challenges faced in the region prior to its creation. Available reports show that from an all-time high of 2009, the numbers of attacks have decreased from 167 in 2010 to 157 in 2011 to 132 in 2012. ReCAAP ISC reports that a total of eight incidents (six actual and two attempted) were reported in the straits of Malacca and Singapore in 2018. This is improvement from 2017 where 9 incidents55 were reported56. When compared with the 52 Article 17 53 Article 20. 54 D. Guilfoyle. Shipping Interdiction and Law of the Sea (Cambridge University Press 2011) Pg. 59 55 The IMB gives a conflicting report here. It states that no incidents were recorded in the Malacca Straits in 2016 and 2017. The reason for such discrepancy in reportage is not far-fetched. These reports although are indicative of the prevailing circumstances of maritime security are not conclusive and this is because in compiling the information, the Maritime Safety Committee must rely on the information gotten from littoral States, shipping companies, insurance companies and nongovernmental organizations. Guilfoyle states that there is coastal State underreporting because some States may be unaware of all incidents that Page | 157 UGBOMA: The Imperative of Littoral States’ Cooperation in Tackling the Scourge of Sea Piracy in the Gulf of Guinea: A Case Study of the Fight against Piracy in the Malacca and Singapore Straits situation in the Gulf of Guinea off the Nigerian coast alone where in the same periods under review we have had 31 attacks or attempted attacks between January and June 201857. It therefore becomes apparent that the ReCAAP ISC model and its entire apparatus is desirable in the Gulf of Guinea if piracy and armed robbery against ships in the region must be effectively tackled. 5. Conclusion and Recommendations Taking into consideration the increasing number of incidents of piracy and armed robbery against ships in the Gulf of Guinea and the drastic reduction in the number of such incidences in the Straits of Malacca and Singapore, it is apparent that the system individual state efforts in quelling piracy in the Gulf of Guinea is disadvantageous and ineffective. In the circumstances, it is imperative that the littoral states in the Gulf of Guinea region convene with the purpose of revitalizing the Gulf of Guinea Commission with the mandate of fighting and quelling piracy in the Gulf of Guinea. This can be done by setting up a specialized agency within the commission akin to the ISC of ReCAAP. Such agency will be charged with the responsibility of collating data, analyzing data, receiving and sharing intelligence reports with and to littoral states centers of coordination and shipping companies. The littoral states may in addition to the central information point also establish an air surveillance/patrol over the Gulf of Guinea58. Now, although this will be a herculean task on account of the vast nature of the region, it is nevertheless desirable and achievable if adequate resources are committed to the project. One major challenge of the Gulf of Guinea Commission has been funding. Littoral states must therefore commit themselves genuinely to providing funds for the running of the organisation and its proposed specialized agency. In tackling these suggestions, a legal framework is indispensable. The littoral states under the auspices of the Commission must put heads together and draft and adopt a treaty like ReCAAP which will detail the modus operandi of the effort and list out obligations of member states. This will have the effect of binding states under the principle of pacta sunt servanda such that they will be under obligation to make their periodic contributions and carry out other responsibilities relevant towards achieving the objectives set out. occur while others may be reluctant to concede that there are any well-grounded concerns about the safety of maritime traffic off their coast- Also that ship-owners may be reluctant to report incidents for fear of losing clients or of increased insurance premiums or to avoid delays attendant to investigations E:/2018- Q2-IMB-Piracy-Report.pdf www.icc.ccs.org Accessed 20 March 2019 56www.recaap.org/resources/ck/files/reports/annual/ReCAAP%20ISC%20Annual%20Report%202018.pdf Accessed 20 March 2019 57 E:/2018-Q2-IMB-Piracy-Report.pdf www.icc.ccs.org Accessed 20 March 2019 58 This will be similar to the Eagle in the Sky (EIS) of the Malacca Straits Patrol. Page | 158 AFJCLJ 4 (2019) PSYCHOLEGAL RESEARCH AND CRIMINAL BEHAVIOUR: IMPLICATIONS FOR NIGERIA* Abstracts This study explores the contributions of psychological theories and empirical research to advancing our understanding of a diverse array of practices and processes within the criminal justice system. Underpinning this exploration is the basic premise that such understanding is crucial for the development of effective practices within the legal system. Psychological theories and research on the causes of crime, psychological approaches to understanding crime, contributions of forensic neuroscience, effects of interpersonal crime on victims, eyewitness evidence, interviewing vulnerable witness, detection of deception, offender profiling and crime linkage, intimate partner violence and stalking, terrorism, the trial process, safeguarding witnesses, identification evidence, the role of expert witness, dealing with offenders, crime and punishment, risk assessment and offender programmes, interventions with dangerous offenders, interventions for offenders with intellectual disabilities, interventions with mentally disordered offenders, offenders rehabilitation, psychology and the police, children as witnesses, the jury, false memories, facial appearance and criminality, cognitive interview, confession, competence and insanity, work place law, harassment, discrimination and fairness, death penalty etc, show that psychology have made significant contributions in these areas that have influenced the legal system particularly the court judgments. The problem of this work therefore is that the Nigerian legal system is not benefiting from these areas of psychological research and theories due to lack of knowledge of its development, study and practice. Hence, psychological theories and research findings relevant to law is not yet advanced and practised in the Nigeria legal system as done in some western jurisdictions. Keywords: Law, Psychology, Psycholegal, Research, Crime, Criminal Behaviour 1. Meaning of Psychology and Law Psychology is the scientific study of human mind and its functions, especially those affecting behavior in a given context. It also means the mental characteristics or attitude of a person or group. The word ‘psychology’ comes from the Greek word Psuche meaning ‘breath, spirit, soul’ and the Greek word Ligia meaning the ‘study of something’. 1 Psychology is the Science of behaviour and mind embracing all aspects of conscious and unconscious experience as well as thought. It is an academic disciple and *Jude U. OKOYE, PhD (Law), PhD (Ed), LLM, BL, Lecturer, Department of Commercial and Property Law, Nnamdi Azikiwe University, Awka, Nigeria. Phone Number: +2348034251150; and *Ikenga K.E. ORAEGBUNAM, PhD (Law), PhD (Phil.), PhD (Rel. & Soc.), MEd, BL, Reader and Head, Department of International Law & Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria. E-mail: [email protected]. Phone Number: +2348034711211. 1 LD Fernald psychology: Six perspectives (thousand Oaks, CA: Sage publications) Page | 159 OKOYE & ORAEGBUNAM: Psycholegal Research and Criminal Behaviour: Implications for Nigeria a social science which seeks to understand individuals and groups by establishing general principles and reaching specific cases.2 Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as ‘the Science of Justice’ and ‘the Art of Justice’. Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. A body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by controlling authority. Law is the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. The role of law in the ordering of human society cannot be over-emphasized. It is by law that offenders are brought to book and punished in view of deterrence and other purposes. It is also in accordance with the law that grievances should be ventilated and injuries suffered by the victims redressed. Law provides a framework of rules that determine the validity of private transactions and then leaves the individual with the option of arranging his private affairs the way he likes within the parameters of the law. Too, the regulation of administrative procedures and exercises, and formation of companies constitute a product of law. It is equally needless to mention that fiscal responsibilities and conferral of social benefits are more easily conducted by means of genuine legislations. 2. The Nature of Psycholegal Research Ogloff3 defines legal psychology as the scientific study of the effects of the law on people and the effect people have on the law. Legal psychology also includes the application of the study and practice of psychology to legal institutions and people who come into contact with the law. Psycholegal research involves applying psychology’s methodologies and knowledge to studying jurisprudence, substantive law, legal processes and law breaking4 Psychology and law became closer than they were to remain for the next two millennia in ancient Greece5. Research into and practice of legal psychology thus has a long tradition exemplified since the beginning of the 20th century by the work of such pioneer as Gross, Binet, Jung, Wertheimer and Munsterberg. Ogloff6, Bartol and Bartol 7 remind us a number of well-known psychology’s findings to law as early as the 1890s. More specifically, we should note Cattel’s8 article in science which was concerned with how accurately one 2 H Hockenbury Psychology (worth Publishers, 2010 3 JR Ogloff, ‘Two steps forward and one step backward the Law and Psychology Movements in the 20th Century’ (2000) 24(4) Law and Human Behaviour, 417-483. 4DP Farrington et al, ‘Introduction: doing psycholegal research’ In DP Farrington. K Hawkins and SMA Lloyd Bostock (ed), Psychology, Law and Legal Processes, xiii- ixvii (1979 b) 5 DP Haward, Foresenic Psychology (London, Batsford Academic and Educational 1981) 6 Ogloff, Op. Cit 7CR Bartol & AM Bartol, Psychology and Law: Theory Research and Application (London, Thomasson/widsworth, 2004b) 8 JM Cattel, ‘Measurement of the Accuracy of Recollections’(1895) 2 Science, 761-6 Page | 160 AFJCLJ 4 (2019) could recall information. Feud’s lectures to judges in Vienna on the merits of psychology for law in establishing facts; Watson’s view that judges could utilize psychological findings; the development in 1917 of the first modern polygraph by William Marston and in the same year, the use of Louis Terman of Psychological tests to screen law enforcement personnel; the employment in 1918 by the state of New Jersey of the first full time correctional psychologist and the first American psychologist to testify as an expert in a courtroom in the case State v. Driver9. Paynter’s and Burt’s 10 research into trademark name infringements which was presented in court; Hutchins and Slesinger’s 11, published work on psychology and evidence law; and finally the Russian Psychology Luria’s12 work on the affect in newly arrested criminals before being interrogated by police in order to differenciate the guilty from the innocent. In early part of the 20th century a lot of publications in law and psychology have been established.13 The psycholegal field has been expanding at an impressive rate since the mid-1960s, especially in North America since the early 1980s. In Europe and America, research and teaching in legal psychology have grown enormously since the mid-1970s14. More recently, the field of psychology and law has also been expanding both in Europe, especially in Netherlands15, pointed out that psycholegal researches have tackled some very crucial questions in society and inter-alia been instrumental in improving the ways eyewitnesses are interviewed by Law enforcement personnel; the adoption of a 9 88’ w.Va479, 107 S.E 189 (1921) 10 HE Burt, ‘Measurement of Confusion between similar trade names’ (1925) 19 Illiais Law Review 320- 42. 11 R M Hutchins & D Slesinger, ‘Some Observations on the Law of Evidence: Spontaneous Exclamations’ (1925) 28 Columbia Law Revise 432 is also RM Hutchins & D Slesinger, ‘Some observations on Law of Evidence-Consciousness of Guilt’ (1929 b) 77 University of Pennsy Lvania Law Review, 725-48. 12 AR Luria. The Nature of Human Conflicts. (W. Worttey Grantt (trans). New York: Liveright, 1932) 13 MR Brown, Legal Psychology: Psychology Applied to the Trial of cases to crime and its treatment, and to mental states and processes ( Indianapolis: Bobbs-Merrill. 1926): see also R M Hutchins & DSlesinger, ‘Legal Psycholog’ (1929 a) 36 Psychological Review 13-26; DG Mccarthy, Psychology for the Lawyer ( New York: Prentice Hall. 1929) and H Cairns , Law and the Social Sciences (London. Keganpaul, Trench Trubner 1935). 14 Research and Teaching In Legal Psychology: an outline of British Developments. Psychology, Crime and Law, 1, 159-64. 1994 15 PJ Vankoppen & S K Lockun, ‘Portraying perpetrators: the validity of Offender descriptions by Witness’.(1997) 21 Law and Human Behaviour, 66-85 see also PA Granhag & LA Stromwall, The Detection of Deception in Forensic contexts (eds Cambridge: Cambridge University Press 2004a); S L Sporer, Reality Monitoring and Detection of Deception in Forensic contexts (Cambridge: Cambridge University Press 2004); JF Sigurdson & GH Gudjonson, ‘Forensic Psychology in Iceland: a survey of members of the Icelandic Psychological Society’ (2004) 45 Scandiveman Journal of Psychology 325-9; F Losel D Bender & T Bliesener, Psychology and Law: International Perspectives. (ed), (New York: Walter de Gruyter 1992 a) and C Hancey, ‘Psychology and Legal Change: the impact of a decade’ (1993) 17 Law and Human behaviour, 371-98 Page | 161 OKOYE & ORAEGBUNAM: Psycholegal Research and Criminal Behaviour: Implications for Nigeria more critical approach to the issue of forensic hypnosis evidence in the courts; psychologists contributing to improving the legal status and rights of children and finally, generally making jury selection fairer. Despite the early publications in legal psychology mentioned above, and while most lawyers would be familiar with forensic psychology traditionally dominated by psychiatrist, it was not until 1960s and 1970s that lawyers in the United States came to acknowledge and appreciate psychology’s contribution to their work16. Since 1970s, a significant number of psycholegal textbooks have appeared in the United States17, in England18 and some have been written by legal psychologists on continental Europe. In addition, following Tapp’s 19 first review of Psychology and Law in the Annual Review of Psychology, relevant journals have been published.20. Psychological associations outside the UK also set up relevant divisions, for example, in the United States in 1981 and in Germany in 198421. In 1981, the American Psychological Association founded Psychology and Law as its forty-first Division22. A significant development in the United States was the inclusion in 1994 of law and psychology in the Annual Survey of American Law23. It was not until 2001, however that the American Psychological Association recognized Forensic Psychology as a specialty, despite the fact that the specialty guidelines for forensic psychologists was published in 1991 by the American Academy of Forensic Psychology and the American Psychology –Law society. Besides, a spate of international conferences on legal psychology has been held in the UK and on continental Europe. There now exist both undergraduate and postgraduate programmes in Legal Psychology24. Finally, a number of Universities on both sides of the Atlantic have recognized the 16 R Gordon, Forensic Psychology: A Guide for Lawyers and Mental Health Professionals. Tuscon, Arizon ( Lawyers and Judges Publishing Co. 1975.) 17 CR Bartol & AM Barto, Introduction to Forensic Psychology (New York Sage, 2004b) 18 JR Adler, Forensic Psychology: Concepts, Debates and Practice Cullomption ( Willan. 2004 19 JL Tapp, ‘Psychology and the Law: An overture. In M.L. Rosenzweig and L. W Porter (eds), Annual Review of Psychology’ 1976, vol. 27, Palo Alto: Annual Reviews. 20 Such as Law and Human Behaviour which was first published in 1977 as the official publication of the American Psychology-Law Society (APLS) founded in 1968 and is nowadays the Journal of the American Psychological Association’s Division of Psychology and Law other journal Behavioural Sciences and the Law; Expert Evidence; Law and Psychology Review; Criminal Behavioural and Mental Health. New Psycholegal journals have continued to be published. The first issue of Psychology, Crime and Law was published in 1994 and those of Legal and Criminological Psychology, and Psychology, Public Policy and Law in 1996 in the UK and United States respectively. 21 DP Farrington et al, The Psychology of Crime and risk Assessment ( London: Routledge. 2001) 22 F Losel (ed), ‘Psychology and Law’ (1992 a &b) Overturers Crescendos and Reprises In F Losel, D. Bender &T Bliesener 3-21 23J Monaham & EF Loftus, ‘The Psychology of Law’ (1982) 33 Annual Review of Psychology 441-75. 24 Ibid, p.3 Page | 162 AFJCLJ 4 (2019) importance of legal psychology by dedicating chairs to the subject in Psychology Departments and law schools25. It must not be forgotten, however, that while by the beginning of 1980s, one-quarter of graduate programmes in the United States offered at least one course and a number had begun to offer forensic minors and/or Phd/JD programmes, few psychology departments offered course in psychology and law prior to 1973. A search on the internet this year 2017 for forensic psychology graduate programmes in English-speaking common law countries will indicate numerous of such programmes in the United Kingdom (83 forensic Masters degree.) It is worthy to note that these developments in the field of psychology and law across modern democracies and legal systems is as a result of the realization of the importance and relevance of the two areas of study and the need to develop and expand them due to the huge benefits therein. Nigeria has nothing close to the developments in the two areas of study and have no formal system, structure and engineering of both. It is on this note that the background of this study is anchored to introduce formally and officially the study of psychology and law and adopting the principles, theories and research findings into the administration of our criminal justice system for a better and more efficient and result oriented criminal justice system. 3. Psychology and Criminal Behaviour Davies and Beach26 noted that common law has long recognized the important link between psychology and criminal behaviour. It is embodied in the legal principle of mens rea or ‘guilty mind’, meaning that an individual cannot be guilty of crime unless he or she carries out the act both willfully and intentionally. Goldstein et al27 relying on the early theories of criminal behaviour reflected in the work of the Italian criminologist Cesare Lombroso emphasized the heritability of criminal behaviour which drew on ideas from physiognomy (i.e. the idea that human traits are reflected in the structure of the face and body type) to argue that criminals were born to offend and that this was reflected in their particular facial characteristics and built, which he believed were present among habitual criminals and he suggested that he knew what a rapist or a murderer should look like. There is however little evidence that these stereotypes have any basis in fact. The application of psychological theories, starting with psychodynamic ideas of Sigmund Freud and his successors, has a significant influence on conceptions of many aspects of everyday life, including crime. The psychiatrist and psychoanalyst Bowlby28 argued that separation of mother and child during the second six months of life had permanent damaging consequences for a child’s later development and well-being (in terms of 25 RJ Freeman & R.Roesch (eds), Pscyholegal Education Training for Forum and function (1992) In D. K. Kagehiro &WS Laufer 567-76 26G Davie & A Beach, Forensic psychology: crime Justice, Law, Interventions (Bps Blackwell, Sussex Uk, 2012) 27AG Goldstein et al, ‘Facial Stereotypes of good guys and bad guys’ 22 A replication and extension Bulletin of the Pschonomic Society 549 – 552. 28J Bowlby, Attachment and loss: Separation, anxiety and anger (New-York Basic Book (1973) Page | 163 OKOYE & ORAEGBUNAM: Psycholegal Research and Criminal Behaviour: Implications for Nigeria attachment to others and self) and could in a number of cases lead the individual to become a criminal later in life. The behaviourist school has also had an important influence in criminological psychology in terms of both understanding and changing anti-social behaviour through treatment. Behaviourism places a general emphasis upon the role of learning in shaping all human behaviour, whether normal or abnormal through the mechanism of conditioning. In this context, there are two broadlines of thought: Pavlovian/Classical conditioning and Operant learning. This approach has largely mutated into Bandura’s Social Learning Theory29. Eysenck30 incorporated biological and social factors into his theory, bringing them together as factors that determined an individual’s personality. According to Eyseneck, an individual’s personality determines, in large part their ability to learn from (or condition to) other people in their social environment. Thus, personality plays a fundamental role in the process of the child’s socialization, with certain configurations of personality less likely to behave in a manner that is anti-social or criminal. According to Davies and Beach31, somebody who has probably had more of an influence in linking behaviour to crime is B.F Skinner. He advanced Pavlovian theory with the development of the notion of Operant learning. Put simply, Skinner suggested that an individual’s behaviour that produces consequences (social or material) that the person finds rewarding is likely to be repeated, in which case Skinner would say that the behaviour is being reinforced. If the behaviour produces consequences that the person finds aversive, then they are less likely to repeat that behavior in which case skinner would say that the behavior is being punished. Skinner’s notion of Operant conditioning was taken and applied to explain criminal behaviour32. Further, Skinner’s Operant learning was applied with some success in working with offenders to reduce the likelihood that they will subsequently re-offend. In the late 20th century, the emergency of cognitive psychology encouraged the integration of internal processes such as thoughts and emotions, into behaviourist learning theory. This integration is most clearly seen in the development of Social Learning Theory (SLT) by Banduara;33SLT gave rise to interventions that aimed to change internal processes (i.e. cognitions) as well as overt behavior giving rise to the term cognitive-behaviourial treatment (CBT) and associated methods of therapy. CBT interventions have become increasingly popular for use with criminal offenders34. For example, the 29A Bandura, Social Learning Theory (New-York Practice- Hall, 1977) 30 HJEyesenck, Crime and Personality (London: Reouttedge and Kegan Paul 1977) 31 G.Davies & A Beech, Forensic Psychology-Crime, Justice, Law, Interventions (Glasgow, John Wiley & sons Ltd; 2012) 32C Jeffery, ‘Criminal Behaviour and Learning Theory’ (1965) 56 Journal of Criminal Law, Criminology and Police Science, 294-300 33D Laws & WL Marshal,l ‘A brief history of Behavioual and cognitive behavioural approaches to sexual offenders: part 1 Early development. Sexual abuse’ (2003) 92 A Journal of Research and Treatment 75-92 see also M.A Millan (eds) Behavioural Approaches to correctional Management and rehabilitation. In C.R. Hollin Handbook of Offender Assessment and Treatment Chicgester: (John Wiley & Sons Inc. 2001) p. 139-154 34 KD Browne et al, Handbook of forensic psychology practice (Oxford: Wiley-Black Well; 2012) and A Bandura, Social foundations of thought and action: A social cognitive theory (Englewood Cliffs NJ pretence- Hall 1986) Page | 164 AFJCLJ 4 (2019) social psychologist Raymond Novaco35 emphasizes the central importance of anger in understanding some forms of violence. Hence the use of anger control treatments has become widespread with violent offenders. Similarly in sex offender treatment CBT is the mainstay of such interventions. A different line of development also took place in the UK in the form of crime prevention measures based on Rational Choice Theory. Cornish and Clarke36 proposed that crime results from rational choice to offend by the criminal with the prime motivation being personal gain, while avoiding detection when the opportunities arise. This theory led to measures known as situational crime or increasing police patrols to maximize the chances of crime detection. Poor upbringing is equally likely to lead to subsequent criminal behavior. For example, more than 60 years ago, Bowlby37 argued in forty-four Juvenile thieves, that in all cases he described in the book, the cause of the delinquency could be traced to such ‘maternal deprivation’. More recently, a number of authors have noted that a problematic upbringing (in terms of coercive parent-child interactions and the absence of positive and affectionate attachment bonds between parent and child, neglect, inconsistent parenting and severity of punishments) can lead to the development of disruptive aggressive and often violent behaviours. Recent findings in neuroscience area38, regarding brain scanning and other techniques that are looking at the structure and function of anti-social/psychopathic offenders; an understanding of how to assess the risk of such individuals for future offending and how to treat them is an important part of forensic psychology. It is important not to lose sight of the fact that around 70 percent of those in prison (both men and women) have mental health problems, in that there are many men, women and children in prison who need health care above all else. Studies have been conducted in variety of settings including prisons39 probation services40. The American Board of forensic Psychology broadly defines forensic psychology as the application of the science and profession of psychology to questions and issues relating to law and the legal system. In his book on the witness stand41, Munsterberg was critical of the legal profession in the United States for not appreciating the relevance of psychology to its works. However, Munsterberg was over selling psychology and his claims were not taken seriously by the legal profession. Psychology and 35 J L Ireland et al, Assessment Treatment and Management of violent and Sexual Offender (Cullompton, Devon: Willan 2009) 36D B Cornish & RVG Clarke, The Reasoning Criminal: Rational choice perspective on offending. New- York: Springer- Verlag. 1986 Offender (Cullompton, Devon: Willan 2009) 37J Bowlby, Forty-four Juvenile thieves (London: Baillieere Tindall and cox (1946) 38SA Specnce et al, A cognitive neurobiological account of deception: Evidence from functional neuroimaging. In S. Zeki & O. Goode ought (eds) Law and the Brand (Oxford: Oxford University Press. 2006) p. 169-182 and A R Vriji, et al, ‘Detecting Deception by Manipulating Cognitive Load’ (2006) 10 Tends in Cognitive Science 141-142 39AE Mac Eachron ‘Mentally Retarded Offender Prevalent And Characteristics’ (1979) 84 American Journal of Mental Deficiency 165-176. 40J Mason & G Murphy ‘Intellectual disability amongst people on probation: prevalence and outcome’ (2002) 46 Journal of intellectual disability research 230-238 41 H Munsterberg, On the witness Stand: Essays on Psychological Crime. New York: Clark Boardman Page | 165 OKOYE & ORAEGBUNAM: Psycholegal Research and Criminal Behaviour: Implications for Nigeria law suffered in its development from opposition with the discipline of psychology42 but also by a conservative backlash in law which limited the progressive scholars in the field. By 1960s as psychology matured as a discipline, social psychology blossomed in the United States and the experimental method came to be applied to problems not traditionally the concern of psychologists. Psychologists began turning their attention to understanding deception and its detection, jury decision- making, the accuracy of eyewitness testimony and sentencing decision-making as a human process. Most of the early psycholegal researchers with a strong interest in social psychology focused on juries in criminal cases. Those with affinity to clinical psychology concerned themselves with the insanity defence while cognitive psychologist examined eyewitness testimony. These same areas continue to be of interest to psycholegal research today, but the questions being asked are more intricate and the methods used to answer them are more sophisticated43. Carson and Bull44 urged legal psychologist to broaden their research interest to include more areas of law, including administrative law, antitrust, civil procedure, corporate law, environmental law, patent law and family law. The somewhat narrow focus of psycholegal research caused enough concern to Sax45. For him, it is important to remind such researchers that the law does not live by eyewitness testimony alone and urge them to explore under- represented areas of legal landscape. McConkey46 wrote that major industrialized societies have come to realize the wide ranging benefits of psychology. At the same time, legislators have increasingly been paying more attention to empirical findings by psychologists47. Carson48 argues that psychologist and lawyers do have a lot of common ground when human behaviours are the very purpose of both psychology and law. Both disciplines focus on the individual49. Yamey50 wrote that both psychology and the courts are concern with predicting, explaining and controlling behaviours while according to Saks and Hastie51 . ‘Every law and every institution is based on assumptions about human nature and the manner in which human behaviour is determined. Achieving justice is the concern of law and lawyers while he search for scientific truth is the concern of psychologists’52 . Ogloff53 gave a more 42 JRP Ogoff, ‘Two Steps Forward and One Step Backward: Law and Psychology Movement(s) in the 20th Century’ (2000) 24(4) Law and Human Behaviour. 457-83 43 SS. Diamond, Foreword. In D.K Kagehiro and W.S Laufer (eds) v-ix (1992) 44 D Carson & R. Bull ‘Psychology in Leal Contexts: Idealism and Realism. In R. Bull & D. Carson (eds) (1995a)’ Handbook of Psychology in Legal context. Chichester: Niley p 3-11 45 M J Saxs, ‘The Law does not live by Eyewitness Testimony alone’.(1986) 10 Law and Human Behaviour. 279-80 46 K M McConkey ‘The Social Sciences, The Lumalitiecs and Science and Technology in Economic Development: the Place of Psychology’ (1992) 14 (6) Bulled of Australian Psychological Society, 3- 6 47J Mc-Ewan. The Verdict of the Court: Passing Judgment in Law and Psychology. [Oxford : Hart publishing 2003] p 43 48LRC Harward, Forensic Psychology [London: Batsford Academic Educational 1981] p 15 49 Costanzo, M. Psychology Applied to Law. [Belmont, Wadsworth/Thomson 2004] 50 A D Yamey, The Psychology of Eyewitness Testimony, [New York: Free Press 1979] p.7 51 MJ Saks & R Hastie, Social Psychology in Court. [London: Van Nostrand 1978] p.1 52 Goldberg, S. Culture Clash: Law and Science in America. [New York NYY Press. 1994] Page | 166 AFJCLJ 4 (2019) realistic position to adopt on the relationship between psychology and law when he stated that to the extent that every law has as its purpose the control or regulation of human behaviour, every law is ripe for psychological study. Haward54 pointed out that the law lags behind contemporary social thinking while psychology tends to anticipate it. Also, while the law relies on assumptions about human behaviour and psychologist concern themselves with understanding and predicting behaviour, both psychology and law accept that human behaviour is not random. More specifically, research in psychology relates to various aspects of law in practice55. Admittedly, different psychologists have different ideas about what psychology should be about56 and law like happiness, poverty and good music is different things to different people57. The simple fact is that there are significant differences in approach between psychology and law. In fact, psychologist and lawyers are characterized by different objectives and the use of different reasoning58. This point is well illustrated by eight issues which according to Haney59 are a source of conflict between the two disciples- namely: i. The Law is authoritative, Psychology is empirical ii. The Law relies on adversarial process, Psychology relies on experimentation iii. The Law is prescriptive, Psychology is descriptive iv. The Law is idiographic, Psychology is homothetic v. The Law is emphasizes certainty, Psychology is probabilistic vi. The Law is reactive, Psychology is proactive vii. The Law is operational; Psychology is academic It can be seen that the two disciplines operate with different models of man. The Law, whether civil or criminal, generally assumes free will and emphasizes individual responsibility in contrast to the tendency by a number of psychological theories to highlight unconscious and uncontrollable forces operating to determine aspects of individuals’ behaviour60. In addition, the psychologists’ information 53 JRP Ogoloff, Jingaism, dogmatism and other evils in Legal Psychology: Lessons learned in the 20th Century. In R. Roesch etal Psychology in the Law Courts: International Advances in Knowledge [London and New York: Rutledge. 2001] p 13-14 54 Ibid p. 1 55SMA Llpyd-Bostock, Law in Practice: applications of Psychology to Legal Decision Making and Legal Skills. (London: Routledge/ British Psychological Society. 1988 p. 1) 56 D Legge, An Introduction to Psychological Science. [London: Methue 1975] p.5 57R Chisholm & G Nettheim Understanding Law: An Induction to Australia’s Legal System. [Sydney: Butterworths 1992 ] p.1 58 J McEwan. The Verdict of the Court: Passing Judgment in Law and Psychology [Oxford: Hart Publishing. 2003] p.1 59 C Haney, ‘Psychology and Legal Change: on the Limits of Factual Jurisprudence’ (1980 )4 Law and Human Behaviour, 147-99 60 M King, Psychology in and out of Court: A Critical Examination of Legal Psychology. [Oxford: Pergamon. 1986] p. 76 Page | 167 OKOYE & ORAEGBUNAM: Psycholegal Research and Criminal Behaviour: Implications for Nigeria is inherently statistical, the legal system’s task is clinical and diagnostic61. As Clifford62 has put it that the two disciplines appear to diverge at the level of value, basic premises, their models, their approaches, their criteria of explanation and their methods. In a submission to the Australian Science and Technology Council in the context of its investigation to the role of the social sciences and the humanities in the contribution of science and technology to economic development63. It is stated that: Psychology discovers, describes and explains human experience and behaviour through the logic and method of science. Psychological research and application is based in a logical, empirical and analytical approach, and that approach is brought to bear on an exceptionally wide range of issues. On the other hand, tradition is important to lawyers and as Farmington et al put it, law is a practical art, a system of rules, a means of social control concerned with the solving of practical problems. Psychology researchers (for example in eyewitness testimony and jury decision making) having utilized a variety of research methods including incident studies, field studies, archival studies and single case studies64. Many psychologists rely a great deal on the experimental method including field experiments, to test predictions and formulate theories that predict behaviours and are skeptical of lawyers reliance on commonsense generalizations about human behaviour based on armchair speculation however ratified by conceptual analysis65. A feature that unifies a lot of psychological research is its preference for subjecting assertions to systematic empirical research and where possible, testing them experimentally. This will often involve randomly allocating persons to different conditions who at the time are normally not told the aim of the experiment. McEwan66 noted that in this context that it is virtually impossible to duplicate exactly court proceedings in the laboratory. One basic reason for this is that often, such is the complexity of the evidence in a trial that lawyers have to continuously scrutinize their materials making trials long and boring. Long duration and boredom, examination in chief, cross-examination, and re-examination of witnesses is not a feature of experimental simulations of eyewitness testimony. Theoretical models of man espoused by experimental psychologist have involved man as a black box, a telephone switchboard and more recently, man as a computer. These models which are different from the lawyer’s notion of free will have been rejected by cognitive psychologist because they do not 61JM Doyle, Legal Issues in Eyewitness Evidence. In DC Raskin (ed) Psychological Methods in Criminal Investigation and Evidence [New York: Springer 1989(a) ] p. 125-47 62 BR Clifford, Psychology’s Premises, Methods and Values. In R Bull & D Carson (ed), Handbook of Psychology in Legal Contexts [Chichester: Wiley, 1995] p.15 63 Ibid p. 28 64 GM, Davies Influencing Public on Eye witnessing: problems and possibilities. In E Lossel, et al (eds) Psychology and Law: International Perspectives [New York: Walter de Gruyter. 1992 ] p 265-74 65 DP Farrington et al, Introduction doing Psychological Research. In DP Farmington et al, (eds) Psychology, Law and Legal Processes [London: Macmillan 1979a] p xii 66 Ibid p. 28 Page | 168 AFJCLJ 4 (2019) take into account man as a thinking, feeling, believing totality67 as someone who interacts with the environment in a dynamic way. For many psychologists, a great deal of information processing is done without people being aware of it. The lawyer on the other hand operates a model of man as a free conscious being who controls his/her actions and is responsible for them. More than two decades ago, King68 criticized legal psychologists’ strong reliance on experimental method arguing that there is a tendency to exaggerate its importance. That treating legal factors as things and applying to them experimental techniques and statistical methods gives rise to the problem of inaccessibility, external validity, generalizability and completeness. King also argued that exclusive reliance on experimental simulation also encourages legal psychologist to focus on inter-individual behaviours without taking into account the social context to which they belong. Highlighting the dangers inherent in studying eyewitness testimony under rather artificial conditions in the laboratory, Clifford and Bull69 reminded their reader that such research could lead psychologist to advance knowledge that is in fact the reverse of truth as in the case of the influence of physiological arousal on recall accuracy. Losel70 pointed out that psychologists have plethora of theories and perspectives while the main goal for law is uniformity and avoidance of disparity. Greer71 called the attention of his readers to the fact that many psychologist attempting to investigate questions of legal relevance on their own have a limited view of legal objectives and as a result in the case of eyewitness testimony for example, they fail to appreciate the intricacies and complexities of legal procedures for eliciting testimony. Ogloff72 wrote on the need for legal psychologists to have an in-depth understanding of the relevant law they are conducting research on. McEwan73 has drawn attention to the fact that often psychologists involved in psycholegal research do not consider the legal implications of their work while Bartol and Bartol74 go a step further and argues that psychologist should learn to do legal research. 67 BR Clifford & R. Bull, The Psychology of Person Identification. [London. Routledge & Keagan Paul. 1978] p. 5 68 M King, Psychology in and out of Court: A critical Examination of Legal Psychology. [Oxford: Pergaman. 1986] 69 BR Clifford & R Bull, The Psychology of Person Identification. [London Routtedge & Keagan Paul. 1978] 70 F Losel, Psychology and Law: Overtures crescendos and reprises. In DF Losel et al (eds) Psychology and Law: International Perspectives. [New York. Walter de Gruyth 1992] p. 15 71 DS Greer, ‘Anything but the truth: the reliability of Testimony in Criminal Trails.’(1971)11 British Journal of Criminology 131-54 72 JRP Ogloff, ‘Two Steps forward and one step backward: The Law and Psychology Movement in the 20th Century’ (2000)24(4) Law and Human Behaviour, 457-83 73 J McEwan, Breaking down the barriers. Paper presented at the 9th Annual Interdisciplinary Colloquium, University College, [London, 2005] p 11-12 74 CR Bartol & AM Bartol, Psychology and Law: Theory Research and Application [Thomas/ Wadsworth. 2004a] Page | 169 OKOYE & ORAEGBUNAM: Psycholegal Research and Criminal Behaviour: Implications for Nigeria Despite differences between psychology and law, the two disciplines are inextricably bound together by virtue of their common role as far as regulation of human behaviours and their responsibility for maintaining the social fabric in a civilized society as well as their use of common psychologal concepts are concerned. Finally on the relationship between law and psychology, Carson75 suggested that the way forward for psychology and law is primary through collaboration focused upon change. Carson and Bull76 were more specific about what the way forward for psychology and law should be when they advocated for ways in which psychology’s products can appropriately and always questioningly and critically aid and question legal processes and ways. 4. Way Out for Nigeria There is no gainsaying that the above developments in the link between psychology and law across modern democracies and legal system are as a result of the realization of the importance and relevance of the two areas of study and the need to develop and expand them due to the huge benefits therein. Nigeria has nothing close to the developments in the two areas of study and has no formal system, structure and engineering of both. There is real need for study of psychology and law and for adopting the principles, theories and research findings into the administration of law and justice in Nigeria. Psychology should be made a compulsory course in the faculties of law in Nigeria Universities in view of the strong influence that psychology is welding on law based on scientific research and acceptance by law of these finding in major legal jurisdictions of the world. To this effect, psychology and law no longer be a borrowed course but a core law course designed and taught by law faculty lecturers. Lecturers interested in the study of psychology and law especially the younger ones should be sponsored by faculties of law or the university abroad as there are many universities in the United States, Europe, Australia and other countries that have double doctorate programmes that award PhDs in psychology and JDs in law. There is need for the establishment of Psychology-Law interdisciplinary journals across faculties of law in Nigeria. More funds should be made available by all funding institutions within and outside the university to sponsor research in the development of psychology and law. There should be training and re-training in the form of seminars, workshops, conferences for judges, magistrates and other judicial officers and judges of other inferior courts of records on research findings and application of psychology and law. Relevance and application of psychological research and findings among law enforcement agencies especially the Nigeria Police for the benefit of the legal system should be made. 75 D Carson, Law Premises Method and Values. In R. Bulll and D. Carson (eds) Handbook of Psychology in Legal context [Chichester: Willy 1995] p 29-40) 76 D Carson & R Bull, Psychology and Law: Future Directions. In R. Bull and D. Carson, Handbook of Psychology in Legal Contexts [Chichester. Wiley 1995] p 3-11 Page | 170 OZUO: Normative Development of the Crime of Aggression: The Kampala Amendments to the Rome Statute or the Malabo Protocol? NORMATIVE DEVELOPMENT OF THE CRIME OF AGGRESSION: THE KAMPALA AMENDMENTS TO THE ROME STATUTE OR THE MALABO PROTOCOL?* Abstract At the 2010 Review Conference of the Rome Statute held in Kampala, Uganda, the international community adopted amendments on the crime of aggression to the Rome Statute (“the Kampala amendments”). However, African States, few years after the Kampala amendments, adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“the Malabo Protocol”) which, inter alia, criminalised aggression with a definition markedly different from that contained in the Kampala amendments, and conferred on the „African Court‟1 with jurisdiction over the crime of aggression.2 In other words, African States are faced with two different and somewhat competing statutes on the crime of aggression in need of ratification. To this end, this contribution seeks a comparative review of these two instruments in the light of „acceptable‟ norms of international criminal law in order to determine the ratification focus of African States. The contribution, in engaging with these instruments, finds that the crime of aggression as contained in the Kampala amendments to the Rome Statute leaves much to be desired. Keywords: Malabo Protocol; Kampala amendments, international criminal law; crime of aggression; and international norm. 1. Introduction It is envisaged that a comparative analysis of the crime of aggression – as defined in the Malabo Protocol, and the crime as found in the Kampala amendments to the Rome Statute – will encounter the perennial comparative legal studies question, „Why compare?‟3 Given that mainstream research projects usually involve domestic and foreign laws which are in themselves products of the culture of the peoples in these jurisdictions, it is not surprising that an answer to this poser must be clarified in order to avoid the dangers of cultural or legal imperialism.4 However, the task here is markedly different from mainstream comparative literature in that the analysis is between the provisions of „general‟ international criminal law on the one hand, and the provisions of regional international criminal law on the other – both laws being creations of States, and neither is peculiar to a *Izunna Isdore OZUO, LLM, BL, LLB, Barrister and Solicitor of the Supreme Court of Nigeria. The author can be contacted at +234 (0)7067579577 or via email at [email protected]. 1 African Court of Human and Peoples‟ Rights. Whenever the Malabo Protocol enters into force, the Court will be known as African Court of Justice and Human and People‟s Rights. 2 See Article 28A of the Malabo Protocol. 3Geoffrey Samuel „Comparative Law and Its Methodology‟ in Dawn Watkins and Mandy Burtons (eds) Research Methods in Law (Routledge 2013) 101. 4 Ibid 114. Page | 172 AFJCLJ 4 (2019) State/culture. Arguably, „international‟ and regional laws are or better still should be concerned with normative developments and standards in a particular field of law as both laws act to influence the conduct of the international community of States. This comparative analysis examines this normative notion of the role that regional and international criminal law ought to play in guiding the conduct of States. Concededly, as everything in both instruments cannot be compared, this work shall focus on two key issues relating to the normative values of the crime of aggression. The first is the extent to which the divergent definitions of the crime in both instruments conform to basic norms of international criminal law. In this instance, consideration shall be given to the clarity, precision, and specificity requirement of the principle of legality, which said principle of legality has been branded a pre-emptory norm of international criminal law.5 The second is the persons we hold responsible for the crime of aggression. It is reasonable to expect that accountability for the crime of aggression in this 21st century should not be the same as it was seventy years ago during the Nuremberg trials. Thus, there is a need to ascertain whether our laws, „international‟ or regional, still reflect 20th-century ideologies for the commission of the crime. In what follows is a discussion on these two issues. 2. Conformity with Basic International Norm I: Contours of the Crime Over the years, the definition of the crime of aggression has been clouded with uncertainty due to the evasive nature of one of its key constituents – war or act of aggression. At the Nuremberg trials, the crime then called „crime against peace‟ was vaguely defined. The London Charter talks about waging „war of aggression‟ without defining what „war of aggression‟ means.6 In modern terms, „war of aggression‟ has been replaced with „act of aggression‟ to conform to modern forms of armed conflict where formal declarations of war are almost non-existent. Since an act of aggression is an integral element of the crime of aggression, three possible developmental stages of the crime may be identified.7 The first stage is „normative ambiguity‟ – here, the criminalized acts of aggression are not certain and the concepts used in the definition of the crime are unclear and imprecise.8 The second and arguably, the desirable stage is the „normative development of the crime‟. In this sense, the criminalized acts are clear and precise and there is no doubt as to what acts of aggression that are covered. However, some terms used in the definition of the crime may not be clear, thus, leaving the judges with the discretion to determine the application of some of the definitional terms. The third stage is „strict normativity‟. In this respect, the prohibited acts are clear and the terms employed in the 5 Theodor Meron, War Crimes Law Comes of Age: Essays (OUP 1998) 244. 6 See Article 6(a) of the Charter of the International Military Tribunal. 7These three articulations here follow the delineation in the work of Daphne Richemond where she identified and discussed „normative ambiguity‟, normative development, and „strict normativity‟ of unilateral humanitarian intervention. See Daphne Richemond „Normativity in International Law: The Case of Unilateral Humanitarian Intervention‟ (2014) 6 (1) Yale Human Rights and Development Journal 45 – 80. 8 Ibid 47. Page | 173 OZUO: Normative Development of the Crime of Aggression: The Kampala Amendments to the Rome Statute or the Malabo Protocol? prohibition are very precise and unambiguous. Judges‟ discretion is almost non-existent when it comes to „strict normativity‟. „Normative ambiguity‟ is not generally desired in criminal law and by necessary extrapolation international criminal law. This is due to the norm embodied in criminal law via the principle of legality. Generally, the principle of legality encompasses the following formulations: specificity or clarity of an offence (nullum crimen sine lege stricta); rejection of retroactive legislations (nullum crimen sine proevia lege); ban on analogy (analogia legis); offence to be in a written law (nullum crimen sine lege scripta)9; and interpretation of an offence to be in favour of an accused person (favor rei or in dubio pro reo). Needless to say, the principle of legality has gained traction under international law as the principle can be located in several international treaties10 including the Rome Statute.11 Specifically, „normative ambiguity‟ contradicts the specificity articulation of the principle of legality.12 Specificity, as the name suggests, requires an offence or a rule of criminal law to be precise, clear and unambiguous. The principle is geared toward „ensuring that all those who may fall under the prohibitions of the law know in advance which specific behaviour is allowed and which conduct is instead proscribed‟.13 Specificity as one of the „solid pillars‟14 of the principle of legality guarantees that the addressees of a criminal statute are aware of the conduct expected of them and the attendant consequences for breach of the prescribed conduct.15 However, inasmuch as „strict normativity‟ of the crime of aggression is desired in international criminal law, „normative development‟ of the crime may not directly contradict the principle of legality in that the principle does not entail that a criminal statute must „explain in minute detail what conduct is expected‟ because rigidity or inflexible of a criminal statute is usually discouraged in order to take care of future developments.16 9 Gerhard Werle „General Principles of International Criminal Law‟ in Antonio Cassese et al (eds), The Oxford Companion to International Criminal Justice (OUP 2009) 55. 10International Covenant on Civil and Political Right 1966; Article 15(1); African Charter on Human and Peoples‟ Right 1981; Article 7(2) etc. 11Articles 22 and 24 of the Rome Statute. 12 The concern here is on the rule of specificity as the other four articulations of the principle of legality do not raise much of a problem. To be sure, the express codification of the crime of aggression in the Kampala amendments together with an understanding regarding the Court‟s temporal jurisdiction accord with the scripta lege and proevia lege formulations of the principle of legality. Further, the other two articulations i.e. analogia legis and favor rei are best left for the Court‟s application as they respectively enjoin the Court not to extend an offence by analogy and to interpret the law to favour the man in the dock. 13 Antonio Cassese „Nullum Crimen Sine Lege‟ in Antonio Cassese et al (eds), The Oxford Companion to International Criminal Justice (OUP 2009) 440. 14 Judgment, Delalić and others (IT-96-21-T) TC, 16 November 1998, para 402. 15Antonio Cassese „Nullum Crimen Sine Lege‟ in Antonio Cassese et al (eds), The Oxford Companion to International Criminal Justice (OUP 2009) 440. 16 Ilias Bantekas, International Criminal Law (4th edn, Hart Publishing Ltd 2010) 22. Page | 174 AFJCLJ 4 (2019) Prior to the Rome Statute, the rule of specificity was less visible in international criminal law as offences negotiated in multinational treaties were more general in their formulations.17 Thus, Bantekas noted that the Rome Statute „has gone many steps further in satisfying the specificity principle.‟18 Despite the obvious achievement of the Rome Statute in this regard, it can be said that the rule of specificity or prohibition against ambiguous legislations is not fully developed in international criminal law. Cassese points out that „international criminal rules still make up a body of law in need of legal precision and some major refinement at the level of definitions and general principles.‟19 The conclusion, therefore, is that the norms of international crimes, in this case the crime of aggression, demand more precise and clear provisions. Indeed, Milanovic argued that „international criminal law has become mature enough for nullum crimen sine lege to mean exactly that: no crime without law, a law that directly applies to and binds individuals and tells them with reasonable clarity how and how not to behave.‟20 In other words, the international community must reject the „normative ambiguity‟ of the crime, embrace its „normative development‟, and hope that one day, „strict normativity‟ of the crime would be attained. Now, how did the Kampala amendments and the Malabo Protocol fare? The new Article 8 bis (2) attempted a definition of an „act of aggression‟. For clarity, we have: (2) For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression. The amendments then went on to reproduce the list articulated in Article 3 of the said UNGA resolution 3314(XXIX). The above definition leaves much to be desired. Some phrases constitute an affront to the principle of legality. Why must an act of aggression be in accordance with the UNGA resolution which was drafted as a political guide for the Security Council? What is the meaning of the phrase, „in any other manner inconsistent with the Charter of the United Nations‟?21 Glennon argued that the definition is „extraordinarily broad, for in key respects the definition‟s scope and application are uncertain‟.22 He noted the uncertainty surrounding the reference to UNGA resolution 3314(XXIX). Can it be said that the list is exhaustive or open-ended as envisaged in the UNGA 17Ibid. 18 Ibid 21. 19 Antonio Cassese et al, Cassese‟s International Criminal Law (3rd edn, OUP 2013) 29. 20Marko Milanovic „Aggression and Legality: Custom in Kampala‟ (2010) 10 Journal of International Criminal Justice 165, 169. 21See Glennon‟s controversial interpretation of the phrase in Michael Glennon „The Blank Prose Crime of Aggression‟ (2010) 35 Yale Journal of International Law 71, 98, and Trahan strongly worded reply in Jennifer Trahan, „A Meaningful Definition of the Crime of Aggression: A Response to Michael Glennon‟ (2011 - 2012) 33 University of Pennsylvania Journal of International Law 908, 926. 22 Glennon, ibid 96. Page | 175 OZUO: Normative Development of the Crime of Aggression: The Kampala Amendments to the Rome Statute or the Malabo Protocol? resolution? In other words, can the Security Council add to the list in accordance with Article 423 of the UNGA resolution?24 It has been suggested that the delegates appeared to have settled for a list that is semi-open or semi-closed, that is, the “the list is not closed, but any other act would need to meet the other qualifiers in the definition, which effectively „closes‟ the list”.25 To Solera, the Security Council, „strictly speaking‟, can unilaterally modify the list in the definition as this modification would be in accordance with the UNGA resolution referred to in Art. 8 bis(2).26 On the contrary, and in view of the principle of legality, Ambos argued that the list „must be considered exhaustive‟ and not open or semi-open.27 Other commentators are content with the ICC having the final say on the ambiguities – open, semi-open, semi -closed, and closed list – created by the reference to the UNGA resolution.28 The argument that the list must be considered exhaustive is welcome but may be far from the true position. Had the framers intended the list to be exhaustive, they could have adopted the list without making reference to the resolution. The reference to the UNGA resolution 3314 (XXIX) is neither for fun nor to increase the word count of the amendments. Indeed, a community reading of the amendments reveals that the Security Council may determine further acts of aggression which falls outside the list and the ICC may be constrained to proceed on that basis. For instance, when the Prosecutor in accordance with Article 15 bis (6) approaches the Security Council to ascertain whether the Security Council has determined if an act of aggression has taken place, and the Security Council, further to the inquiry, determines that an act of aggression has taken place, but it is one that falls outside the list, will the Prosecutor still proceed? Here, there is a positive determination of an act of aggression by the Security Council and, of course, the Prosecutor, even before approaching the Security Council, must have reasonably concluded that there was a basis for investigating the crime of aggression. The necessary conclusion is that the Prosecutor is expected to proceed with the investigation, yet one of the bases for the investigation – positive Security Council determination - clearly falls outside the so-called listed acts of aggression. It follows, therefore, that a person may be investigated or even prosecuted for an act of aggression which is outside the acts listed in Art. 8 bis 23 The said Article 4 provides that that „[t]he acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provision of the Charter‟. 24Ibid 97; Andreas Paulus „Second Thoughts on the Crime of Aggression‟ (2010) 20(4) The European Journal of International Law 1117, 1120. 25„The Crime of Aggression: The New Amendments Explained Questions and Answers‟ (2011 – 2012) Proceedings of the American Branch of the International Law Association 121, 129. 26 Oscar Solera „The definition of the Crime of Aggression: Lessons Not-Learned‟ (2010) 42 (3) Case Western Reserve Journal of International Law 801, 810. He, however, noted that this modification would violate the principle of legality. See also Drew Kostic „Whose Crime is it anyway? The International Criminal Court and the Crime of Aggression‟ (2011 – 2012) 22 Duke Journal of Comparative and International Law 109 – 142. 27Kai Ambos „The Crime of Aggression After Kampala‟ (2010) 53 German Yearbook of International Law 463, 487. 28Noah Weisbord „Judging Aggression‟ (2012) 50(1) Columbia Journal of Transnational Law 82, 105; Trahan, no 21 above, 946. Page | 176 AFJCLJ 4 (2019) (2).29 This is clearly an assault on the principle of legality, and it is further complicated by the political nature of Security Council determinations. Having regard to the above, can it be said that the definition of aggression in Kampala amendments embraces the „normative development‟ of the crime or better still, the specificity requirement of the principle of legality? The answer is unfortunately in the negative. To be sure, the contention regarding the openness or otherwise of the list and the argument that the Court will have the final say are in themselves an indication that the definition is far from clear or precise. Indeed, the Kampala amendments are still within the realm of „normative ambiguity‟ of the crime of aggression and same violates a supposedly pre-emptory norm of international law. How can a crime that is in itself a violation of a norm of international law be the basis for a trial before the ICC? In the end, the findings of Glennon that the definition „does not provide sufficient notice to potential defendant as to what conduct is permitted and what is proscribed‟30, though criticised, may be unassailable. Curiously, the Malabo Protocol, after its definition of the crime of aggression, carefully avoided defining what constitutes „an act of aggression‟. However, the Protocol in its Art 28M (B) provides that: „The following shall constitute acts of aggression,31 regardless of a declaration of war by a State, group of States, organizations of States, or non-State actor(s) or by any foreign entity: …” The Protocol then listed, with modifications, the same acts of aggression found in the UNGA resolution. The idea of delineating the contours of „acts of aggression‟ in the Malabo Protocol is most commendable in that it leaves no one in doubt as to what constitutes an act of aggression. The Protocol does not suffer from the legality crisis as we have it in the Kampala amendments. The issue of whether the list is open or closed does not arise. A potential aggressor is well aware of what is prohibited and what is not. Again, it is quite interesting that the Protocol ignored the definition of aggression contained in the African Union Non-aggression and Common Defence Pact.32 One would have thought the Protocol would adopt or reference the definition of aggression in the Pact but the Protocol did not. Foreseeably, such a renvoi to the political definition in the African Non-aggression Pact may lead to ambiguities in the Protocol, and it is praiseworthy that the drafters did not commit such an error. Commenting on the Malabo Protocol, Sayapin observed that the list in the Protocol „is exhaustive and hence corresponds to the principle of legality, as understood in international criminal law‟.33 He went 29The dilemma is that non-prosecution of an aggressor because the positive determination by the Security Council falls outside the list is not so much desired. 30Glennon, no 21 above, 88. 31Emphasis supplied. 32See the definition of aggression in Art. 1 of the African Union Non-Aggression and Common Defence Pact. 33Sergrey Sayapin „The Crime of Aggression in the African Court of Justice and Human and People‟s Right‟ available at https://www.academia.edu/25874281/The_Crime_of_Aggression_in_the_African_Court_of_Justice_and_ Human_and_Peoples_Rights accessed on 31 July 2017. Page | 177 OZUO: Normative Development of the Crime of Aggression: The Kampala Amendments to the Rome Statute or the Malabo Protocol? on to note that the Protocol contains „innovate elements reflective of progressive development of international law‟ and its “provision on the crime of aggression could, potentially, become even more efficient than its „parent provision‟ in the Rome Statute”.34 Although the Malabo Protocol may be criticised for being limited, this criticism or any other criticism may not impugn the clarity and precision pursued in the Protocol regarding prohibited acts of aggression. In this sense, Africa may have moved closer to the expected standard required of international criminal law than the rest of the world. The Malabo Protocol, like any other statute, is not devoid of errors or misgivings. Indeed, the Malabo Protocol, just like its counterpart, the Rome Statute, contains some very unclear and questionable terms in the definition of the crime itself. The presence of controversial phrases - „manifest violation‟, „by its character, scale and gravity‟ „planning‟, and „preparation‟ – in the Malabo Protocol leaves much to be desired. Several scholars have questioned the meaning of those terms in the definition of the crime,35 and one would have expected more clarifications in the Protocol. The implication is that the Malabo Protocol has not embraced the „strict normativity‟ of the crime of aggression. However, there is a clear departure in the Protocol from „normative ambiguity‟ of the crime of aggression to its „normative development.‟ In any event, mindful of the chimerical nature of the „strict normativity‟ of the crime in international criminal law, one can only commend the framers of the Malabo Protocol for taking the crime to a desirable standard. 3. Conformity with Basic International Norm II: Perpetrators of the Crime of Aggression What appear to be the foundation of international criminal law are the immortal words of Sir Geoffrey Lawrence – „[c]rimes against international law are committed by men, not by abstract entities, and only by pushing individuals who commit such crimes can the provisions of international law be enforced‟.36 It is now beyond all doubt that individuals, regardless of their position and status in life, are the addressees of international criminal law. Thus, responsibility for international crimes is attached to men and women who are able to violate the norms or interests protected by such crimes. As regards aggression, Drumbl once asked: „[w]hat are the interests we hope to protect by criminalizing aggression?‟37 This question is particularly important as a successful answer to the question is a step towards understanding the persons we should hold responsible for the crime of aggression and, indeed, any other international crime. In other words, whoever is capable of violating the protected interest(s) ought to be held responsible for the crime in question. To Drumbl, the protected interests when it comes to the crime of aggression are stability, security, human right, and sovereignty.38 Similarly, the definition of acts of aggression in Kampala amendments and the Malabo 34Ibid. 35John D. Van der Vvyer „Prosecuting the Crime of Aggression in the International Criminal Court‟ (2010- 2011) 1 Nat‟l Sec. & Armed Conflict L. Rev 1 – 57; Oscar Solera, no 26 above; Glennon, no 21 above. 36„International Military Tribunal (Nuremberg) Judgment and Sentences 1 October 1946‟ (1947) 41 American Journal of International Law 172, 221. 37 Mark Drumbl „The Push to Criminalize Aggression: Something Lost Amid the Gains‟ (2009) 41(2) Case Western Journal of International Law 291, 306. 38Ibid. Page | 178 AFJCLJ 4 (2019) Protocol appears to protect the sovereignty, political independence, and integrity of a State. Without attempting to expand the list, suffice it to say, individuals capable of violating these interests should be tried and punished accordingly. Put differently, anybody capable of violating the norm or interest protected by the crime of aggression should not be left without liability of some sort. Regrettably, the accountability for the crime of aggression in the Kampala amendments is limited to „a person in a position effectively to exercise control over or direct the political or military action of a State‟ and the aggression must involve the „use of armed force by a State‟39 Further, the various modes of individual criminal responsibility articulated in Article 25 (3) of the Rome Statute does not „generally‟ apply to the crime.40 To say the least, the envisaged perpetrator of the crime in the amendments is unsatisfactory and counterproductive. Why restrict responsibility for the crime of aggression to those acts attributable to armed forces of a State? Is aggression exclusive to State actors? Does it mean that acts of aggression committed by non-State actors are not of concern to the international community? Is it right to establish that the crime can neither be aided nor abetted by persons not in control of the military or political action of the State? These and many more questions demand answers. One wonders whether this definition is part of the historic breakthrough often used to describe the Kampala amendments. There is no reason the amendments adopted for the consumption of the international community should be so regressive. Prior to the adoption of the amendments, many scholars raised concerns about the state-centric approach adopted in the negotiations. Questions were raised relating to the rationale for embracing the 1974 resolution which was designed to govern State responsibility rather than individual criminal responsibility. Here, Weisbord argued that the proposed definition was „riddled with anachronistic concepts that undermine its normative value today‟. He went on to note that the acts of aggression specified in the 1974 UNGA resolution, which was sheepishly adopted in the amendments, were the dominant form of armed conflict occurring at that time, which said forms of armed conflict are very different today.41At that time, Cassese lending his voice to the debate noted that: Since this body of law [international criminal law] is geared to penalizing individuals‟ misconduct, one cannot see what would stand in the way of extending criminal liability for aggression to individuals who do not belong to and do not act on behalf of a state. If the purpose of the relevant international rules is to protect world community from serious breaches of peace, one fails to see why individuals 39 Article 8 bis (1) & (2). 40 Article 25 (3) bis provides that „[i]n respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or direct the political or military action of a State‟. This provision serves to ensure that the crime remains a leadership crime. See Robert Heinsch „The Crime of Aggression After Kampala: Success or Burden for the Future? (2002) 2 (2) Goettingen Journal of International Law 713, 733 – 734. (743). 41 Noah Weisbord „Conceptualizing Aggression‟ (2009) 20(1) Duke Journal of Comparative and International Law 1, 22 – 27. Page | 179 OZUO: Normative Development of the Crime of Aggression: The Kampala Amendments to the Rome Statute or the Malabo Protocol? operating for non-state entities should be immune from criminal liability for aggressive conduct.42 There is almost a consensus among scholars that the crime of aggression in the amendments does not capture modern forms of warfare due to the definition‟s focus on the State.43 However, there are other commentators who do not believe that the conceptual understanding of the crime of aggression should be changed. The argument is that the activities of non-State actors are taken care of in other core crimes within the Court‟s jurisdiction like war crimes and crimes against humanity.44 Again, it is contended that such activities of non-State actors are „almost implausible without, at least, an implicit support or acquiescence from States harbouring the non-state actors perpetrating the attack‟.45 The implication is that the State wherein the non-State actors operated from would be pursued for committing aggression under paragraph 2(g) of Article 8 bis which establishes, as an act of aggression, „[t]he sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein‟. In this regard, the Court, in a bid to ascertain the responsibility of the State in question, may engage with the „effective control test‟ laid down by the International Court of Justice in the Nicaragua case46or the „overall control test‟47 of the International Criminal Tribunal for the former Yugoslavia.48 Whereas the former is narrower and does not fit well within the overall object of international criminal law, the latter is more inclusive.49 For what it‟s worth, this position fails to note that most activities of non-State actors now are beyond the comprehension of the States in which they operate. It is clearly unfair to suggest that an unlucky State battling to contain the actions of non-State actors within its territory should be subjected to investigation for aggression committed by that actor. What is clear is that the crime of aggression in the Kampala amendments has not developed to meet the challenges of the modern world. It may be suitable for the Nazi war criminals of the 1940s but it will definitely fail to function successfully for the actors in today‟s world. Further, if we are to accept the definition in the amendments today, then we ought to apologise to some Nazi war criminals who were convicted of the same crime on a lower threshold. To be sure, in the Nuremberg trials, persons who were able to „shape or influence‟ the policy of the government were held responsible for the 42Antonio Cassese „On Some Problematical Aspects of the Crime of Aggression‟ (2007) 20 Leiden Journal of International Law 841, 846. 43 Ambos, no 27 above, 488; Drumbl, no 37 above, 305. 44Sergey Sayapin, The Crime of Aggression in International Criminal Law: Historical Development, Comparative Analysis and Present State (TMC Asser Press 2014) 260. 45Ibid. 46Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports (1986) 14. 47See Judgment, Tadić, Appeals Chamber, 15 July 1999. 48Matthew Gillett „The Anatomy of an International Crime: Aggression at the International Criminal Court‟ (2013) 13 International Law Review 829, 840. 49Ibid. Page | 180 AFJCLJ 4 (2019) crime of aggression while our 21st century definition found in the Kampala amendments seeks to pigeonhole the crime to persons who are in a position to „control or direct‟ the political or military establishment of a State. The standards are not the same; the latter is much more restrictive than the former.50 In truth, one wonders whether we really what to criminalize aggression in the Kampala amendments or pay lip service to the crime. The intervention in Malabo Protocol deserves attention. The Protocol stipulates that the crime is committed by „a person in a position effectively to exercise control over or direct the political or military action of a state or organisation, whether connected to the state or not….51 The Protocol went further to establish that an act of aggression can be committed by „a State, Group of States, organisations of States, or non-State actor(s) or by any foreign entity‟.52 Notably, the extension of the crime to cover the activities of non-State actors is a progressive statement of the crime of aggression. It is forward-looking and best reflects 21st-century warfare in Africa and other parts of the world. The Protocol recognises that aggression remains aggression regardless of who commits it. Hence in its list, the word „armed forces‟ rather than „armed forces of a State‟ was employed.53 There are other expansions in terms of criminal liability in the Protocol. For instance, a State need not have effective control or overall control of a non-State actor that commits aggression. By virtue of Article 28M (B) (h)54 of the Protocol, any material support from that State to the non-State actor suffices to constitute an act of aggression. This stance is a clear departure from the existing position where materially supporting a non-State actor that acts with a considerable degree of autonomy does not suffice to input responsibility on a State actor.55 Furthermore, there is no limitation on the various modes of individual liability for the crime. In essence, a person who does not direct or have effective control of the military action of a State or non- State actor may be held responsible for the crime in so far as the person comes under the various modes articulated in Article 28N of the Protocol such as aiding or abetting the perpetrators of the crime. Therefore, the crime of aggression in the Malabo Protocol is not strictly a leadership crime. This is unlike the position obtainable in the Rome Statute where persons falling under the modes of 50 Kevin Heller „Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression‟ (2007) 18 (3) The European Journal of International Law 477 – 497. See also Drumbl‟s discussion on the trials of Takashi Sakai and Artur Greiser in Supreme National Tribunal of Poland and Chinese War Crimes Military Tribunal respectively. Drumbl, no 37 above, 299 – 304. 51 Article 28M (A) of the Protocol. 52Article 28M (B) of the Protocol. 53 Ambos in his commentary points out that it is „awkward‟ to use the term „armed forces‟ to refer to non- state actors as the term is traditional reserved for State forces. See Kai Ambos „Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and Crime of Aggression (Article 28M)‟ in Gerhard Werle and Vormbaum Moritz (eds), The African Criminal Court: A Commentary on the Malabo Protocol (Asser Press 2017) 51. 54 The Article establishes, as an act of aggression, „[t]he sending or materially supporting by or on behalf of a State of armed bands, groups, irregular or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. 55 Ambos, n 53 above, 52 – 53. Page | 181 OZUO: Normative Development of the Crime of Aggression: The Kampala Amendments to the Rome Statute or the Malabo Protocol? responsibility found in Article 25 of the Statute must be able to direct or have control over a State‟s military action. All in all, the Malabo Protocol is a great improvement as far as persons we hold liable for the crime of aggression are concerned in international criminal law. However, it may be argued that the immunity found in Article 28 serves to shield the so-called leaders capable of committing the crime of aggression from prosecution. This concern is clearly genuine but it may be ambitious. Generally, there is this lack of „interest in prosecuting perpetrators in positions of state power.56 The Malabo Protocol should be seen as recognising this lack of political will to prosecute serving leaders in the African continent, and this recognition is not utterly condemnable. Certainly, no one is against prosecuting any leader who commits aggression or any other crime while in office. The immunity ceases when a perpetrator leaves office. Furthermore, the language of the Protocol– „no charges shall be commenced or continued before the Court against any AU serving heads of State‟ – only guards against prosecution but not the investigation of the crime. Nothing prevents a serious Prosecutor from investigating the crime while the leader is still serving. The implication is that a leader who commits the crime will ultimately face prosecution after his or her term in office and it is immaterial whether the investigation of the crime happens before or after the person‟s term in office. The idea that a leader who orchestrated the crime may seek to perpetuate himself in office is no longer tenable. The „intervention‟ of African leaders in The Gambia to ensure a successful transmission of power to Adama Barrrow is enough indication that a leader‟s perpetuity in office in Africa will soon be a thing of the past. In the final analysis, the Malabo Protocol has proved to be an improvement on the supreme international crime, the crime of aggression. The normative development of the crime embraced in the Protocol is most commendable, coupled with the extension of the crime to cover actors other than State actors. On the other hand, the Kampala amendments are more of a lip service to the crime. After over seventy years of the first appearance of the crime in the international scene, the acts of aggression prohibited in the amendments to the Rome State are still not certain. This is further compounded by the irksome restriction of the crime to State actors. 4. Ratification Focus of African States Having noted the great improvements achieved in the Malabo Protocol and in view of the lack of ratification of these instruments by African States,57 the question that easily comes to mind is this: which of these instruments should African States embrace? This is clearly a normative question in that 56 Jocelyn Kestenbaum „Closing Impunity Gaps for the Crime of Aggression‟ (2016) 17 Chicago Journal of International Law 51, 66. 57 At the last count, only one African State, Botswana, has ratified the Kampala amendments while no African State has ratified the Malabo Protocol. See Page | 182 AFJCLJ 4 (2019) it relates exclusively to values we seek to protect or project. If an author is concerned with universalizing international criminal justice – like most International NGOs and civil society activists – or is unknowingly blinded by the magic words, „ending impunity‟, then the answer is not far- fetched. Here, there is no reason African States should not ratify the Kampala amendments. In fact, there is a „legal‟ and moral obligation on the part of African States to accept the crime as soon as practicable and „end‟ impunity within the continent. However, the danger in such a persuasion is that Africa States would be made to ratify an instrument that neither conforms to an acceptable standard expected of international criminal law nor addresses the modern-day conflict visible within the continent. On the other hand, if an author is concerned about „standards‟, then there is no reason African States should abandon the crime as defined in the Malabo Protocol for a regressive definition of the crime in the Kampala amendments. In this regard, the advocation will be for African States to embrace the Malabo Protocol while rejecting the compromised package in the Rome Statute. However, the problem with this position is that a „better‟ definition of the crime is not the sole requirement for ratification. If the standard of a convention or a treaty is the sole guide for ratification, then the call by the African Union in its decision of January 2017 for member States to ratify the Malabo Protocol is most welcome.58 There are other determining factors, and unfortunately, the scope of this study does not accord the author with the luxury to engage with these other issues or criticisms why African States should or should not ratify the Malabo Protocol.59 What is more, it is the author‟s considered view that universalisation of international criminal justice (ICJ) is as important as the normative standards embodied in ICJ. While African State Parties and indeed other non-signatories to the Rome Statute are encouraged to support the criminalization project in the Rome Statute, this does not mean that such support should be given without regard to some basic issues like widening the scope of the crime to capture non-state entities and rescuing the crime from its present state of „normative ambiguities‟. 58 The decision „expresses deep concern at the slow pace of ratification of the Protocol on Amendments to the Protocol of the African Court of Justice and Human and People‟s Right adopted in 27 June 2014 and reiterates its previous call on Member States to sign and ratify the Protocol, as soon as possible‟ 59 See for instance, the critique of Amnesty International „Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court‟ 2016 available at https://www.amnesty.org/en/documents/afr01/3063/2016/en/ accessed on 8 August 2017. Page | 183 AFJCLJ 1 (2019) UPDATING THE LEGAL FRAMEWORK FOR THE ELIMINATION OF GAS FLARING IN NIGERIA* Abstract This paper examines the dynamics in the legal framework for the elimination of gas flaring in Nigeria. Gas flaring has been with Nigeria since the discovery of oil in large quantities and its subsequent exploitation for commercial purposes. The practice of gas flaring is hazardous to the environment. It has attracted international attention. in programs such as the Global Gas Flaring Reduction Initiative (GFRI) anchored by the World Bank This paper found that from the onset, the Nigerian Government adopted a moderate approach to the problem by emphasizing efforts at gas utilization rather than an outright ban on gas flaring as is the case with many parts of the civilizes world. The paper also found that this approach has encouraged the multinational oil companies doing business in Nigeria to continue with the obnoxious practice rather than device effective ways of commercializing the gas from the flare sites. The paper further reveals that despite the failure of past efforts at achieving zero gas flares in Nigeria’s oil fields, the Federal Government has intensified efforts at zero flares by 2020. This it has done by enacting the Flare Gas (Prevention of Pollution and Waste) Regulations, 2018. The Government has taken a further step by embarking on the Nigerian Gas Flare Commercialization Project (NGFCP) as a way of opening up competition in the Flare Gas utilization efforts to implement the objectives of the Regulations. The retention of the ministerial discretion by the Regulations to permit gas flaring in some cases point to the fact that there may still be some bridges to cross in the journey towards the elimination of gas flaring in Nigeria. This is notwithstanding the fact that 800 applications were received in March 2019, at the close of applications, by the Ministerial Steering Committee on the NGFCP for the management of the 176 identified flare sites. Keywords: Gas, flaring, data, Permit Holder, Producer, zero flares and pollution 1. Introduction Gas flaring is a major contributor to environmental pollution and climate change in Nigeria. The monster of gas flaring has been with Nigeria since the commencement of exploitation and production of oil in commercial quantities in Nigeria The colonial government that was in place at the time oil production in Nigeria began had this say about the practice ‘until there is this worthwhile market and until there are facilities (e.g pipelines and storage tanks) to use the gas, it is normal practice to burn off this product from the oil wells’.1 There have been several legislative efforts and interventions in * Thaddeus (Ted) Chukwuka EZE, PhD Law (Nigeria), LLM, LLB, B.L, MSc (NAU), BSc (Benin), Associate Professor, Faculty of Law, Chukwuemeka Odumegwu Ojukwu University, Igbariam. 1UK National Archives, ‘Nigerian Oil and Natural Gas Industry’, available at http://climatelaw.org/cases/coumtry/Nigeria/case/country/Nigeria/11Nigeria Page | 183 EZE: Updating the Legal Framework for the Elimination of Gas Flaring in Nigeria Nigeria to stem the anomaly known as gas flaring but most of them lacked the bite and the necessary will on the part of the state to enforce them. This arose primarily from the fact that successive Nigerian governments have been wary about stepping on the toes of the multinational oil companies (MOC’s) for fear of their disinvesting from Nigeria. They sometimes issue threats that they will disinvest but never do because they are benefitting immensely from the monopoly they enjoy in the Nigerian oil fields. Gas flaring involves burning off unutilized gas found in association with crude oil, as a means of disposing such gas from the oil wells.2 Gas flaring negatively affects the Nigerian environment and violates the fundamental right to a healthy environment of the people who live around the flare sites. As at 2015, Nigeria had the second largest volume in terms of the flaring of associated gas in the whole world after Russia.3 2. A Review of the Legal Framework for the Elimination of Gas Flaring in Nigeria The Nigerian state acknowledged the necessity to banish gas flaring from its oil production processes right from the enactment of the Petroleum Act in 1969. The petroleum Act of 1969 provides as follows: ‘The minister in charge of the petroleum sector may make regulations for the prevention of pollution of watercourses and the atmosphere in oil operations.4 This power to make regulations for the prevention of pollution of watercourses and the atmosphere in oil operations was exercised by the minister when he made the Petroleum (Drilling and Production) Regulations of1969. The previously mentioned Regulations provide as follows ‘not later than five years after the commencement of production from the relevant area, the licensee or lessee shall submit to the Minister, any feasibility study, program or proposal that he may have for the utilization of any natural gas whether associated with oil or not which has been discovered in the relevant area’.5 The above section had no provision for sanctioning any licensee or lessee who failed to submit a plan for gas utilization. There is also no evidence that the Nigerian state took any step to enforce these regulations. This was largely because the concern of the Nigerian government was how to utilize the gas and not necessarily the ending of gas flaring because of environmental degradation. The Minister for Petroleum Resources who had powers under the Petroleum Act to outlaw gas flaring did not do so. As time went on, it was observed that most of the MOC’s in Nigeria were not interested in gas utilization but were made up to just scoop the crude and scram. This may have been due to a very low domestic demand for gas at the time. It was this state of affair that led to the enactment of the Associated Gas Re-injection Act in 1979.The Associated Gas Re-injection Act came, on stream in 1979 and set the time limit for the elimination of gas flaring to be 1st January 1984. The Act provides as follows: cases/cased/documents/Nigeria/report/section 21 doc 2.2pdf ‘Nigeria Oil and Natural Gas Industries’; file DO177/33, UKJ, National Archives accessed 16 March 2019. 2R. Keith, ‘Gas Flaring, LAC and Climate Change’ available at http://www.temasactuales.com/temasblog/environmental-protection/g...p.2 of 4. accessed 16 April 2019. 3 World Bank, Global Council for Flaring Reduction Initiative (GCFRI) Report, No. 3, ‘ Regulation of Associated Gas Flaring and Vending-A Global Overview and Lessons ‘ March 2003, available at http://www.ife.org/ogc/glo bal gas.htm, accessed 24 July 2012. 4 Section 1 of the Petroleum Act, Cap P10, Laws of the Federation of Nigeria, 2004. 5 Regulation 42, Petroleum (Drilling and Production) Regulations, 1969. Page | 184 AFJCLJ 1 (2019) Notwithstanding the provisions of Regulation 42 of the Petroleum (Drilling and Production) Regulations made under the Petroleum Act, every company, producing oil and gas in Nigeria shall not later than 1st April 1980, submit to the Minister a preliminary program; (a) For a scheme for the viable utilization of oil from a field or a group of fields; (b) Project or projects to re-inject all gas produced in association with oil but not utilized in an industrial project.6 The Associated Gas Re-injection Act repealed the 5 years holidays granted to oil companies before they came under compulsion to produce a plan for utilization of Associated Gas. The Act went further to provide as follows: Subject to subsection (2) of this section, no company engaged in the production of oil and gas shall after January 1984, flare.gas produced in association with oil without the permission of the minister. 2. Where the minister is satisfied after 1 January 1984 that utilization or re-injection of the produced gas is not appropriate or feasible in a particular field, he may issue a certificate in that respect to a company engaged in the production of oil and gas; (a) Specifying such terms and conditions as he may at his discretion choose to impose, for the continued flaring of gas in such field or fields or (b) Permitting the company to continue to flare gas in that particular field or fields if the company pays such sum as the Minister may from time to time prescribe for every 28.317 standard cubic meters (SCM) of gas flared. Provided that any payment due under this paragraph shall be made in the same manner and be subject to the same procedures as for payment of royalties to the Federal Government of Nigeria.7 The Act did not actually abolish gas flaring but made it subject to ministerial permission. The Minister is empowered under the Act to make regulations prescribing anything that requires prescription under the Act.8 It should be noted however that the different deadlines given to the oil multinationals in respect of ending gas flaring were issued by the Federal Government through the Minister by virtue of the powers conferred on him under this section of the Act. As the recalcitrance of the oil majors to the elimination of gas flaring continued, the Minister pursuant to the powers vested on him under the Act, enacted the Associated Gas Re-injection (continued flaring of gas) Regulations in 1985. The major thrust of this regulation was to fetter the absolute discretion of the Minister in the grant of permission for continuation of flaring of associated gas in the oil fields by circumscribing conditions under which continued flaring might be permitted. The Act provided some of the considerations upon which flaring might be permitted as follows: As from the commencement of this Regulations, the issuance of a certificate by the Minister under section 3(2) of the Associated Gas Re-injection Act, for the 6 Section 1 Associated Gas Re-injection Act, Cap A25 Laws of the Federation of Nigeria 2004. 7 Section 3(1&2) ibid 8 Section 5 ibid Page | 185 EZE: Updating the Legal Framework for the Elimination of Gas Flaring in Nigeria continued flaring of gas in a particular field or fields shall be subjected to any one or more of the following conditions, that is- (a) Where more than 75% of the gas produced is effectively utilized or conserved; (b) Where the produced gas contains more than 15% impurities such as N2, H2S, CO 2 , etc, which render the unsuitable for industrial purpose; (c) Where an ongoing utilization process is interrupted by equipment failure provided that such failure are not considered too frequent by the Minister and that the period of any interruption is not more than three months; (d) where the ratio of gas produced per day to the distance of the field from the nearest gas line or possible utilization plant is less than 50,000SCF/m Provided that the gas to oil ratio of the field is less than 3,500SCF/bbl; (e) Where the Minister in appropriate cases as he may deem fit order the production of oil from a field that does not satisfy any of the conditions specified in these Regulations.9 Reading between the lines will reveal that Regulation (a) is saying that once 75% of utilization or re- injection of the associated gas is achieved, a ministerial permission could be granted to flare the remaining 25%. Regulation (b) on the other hand is saying that where the associated gas contains more than 15% of impurities, the minister could grant permission for the gas to be flared instead of being re-injected or further processed. Regulation (c) approves the issuance of permit to flare gas for a period of up to three months where the equipment for gas utilization malfunctions, Regulation (d) permits the flaring of gas where scanty volumes are produced in a field that is far away from a gas evacuation or utilization point. Finally, Regulation (e) retains the full discretion of the Minister to issue a permit for continuous flaring of gas. By virtue of Regulation (e), this enactment does not actually restrict the discretion of the Minister. It is at best a mere guide to him in the exercise of his discretion. Based on the powers conferred on the Minister to grant permission for continued gas flaring under the Associated Gas Re-injection Act, 1979, several deadlines have been fixed by the Federal Government for putting a final end to gas flaring in Nigeria. The first deadline was in 2008. This was followed by another deadline for 2011/2012. The latest deadline set by the government however is 2020. It is instructive that the Government has not adhered to any previous deadline. Several steps are been taken to comply with the 2020 deadline, The President of the Federal Republic of Nigeria who is also the Minister for Petroleum has by the powers conferred upon him under Section 9 of the Petroleum Act and Section 5 of the Associated Gas Re-injection Act enacted the Flare Gas (Prevention of Waste and Pollution) Regulations, 2018. The main thrust of the Regulation is the utilization of associated gas from the flare sites through commercialization. The Nigerian Gas Flare Commercialization Program (NGFCP) of the Federal Government anchors upon this Regulation. Many knotty issues have however arisen, suggesting insincerity on the part of the Nigerian state as regards the enforcement of the Associated Gas Re-injection Act. In Federal Inland Revenue Service v 9 Regulation 3 Associated Gas (Continued Flaring of Gas) Regulations, 1985. Page | 186 AFJCLJ 1 (2019) Mobil Producing Nigeria Unlimited (MPNU)10, the respondent sued the appellant at the Tax Appeal Tribunal, seeking for an order, to compel the appellant to treat a receipt for a payment that was christened, ‘fine for gas flaring’ as a tax deductible item in the computation of its income tax. It was the contention of the respondent at the Tax Appeal Tribunal (TAT), that the aforesaid payment would have been treated as a tax deductible allowance by the appellant (FIRS). The trial found that MPNU flared gas without ministerial permission as required under section 3(2) of the Gas Re-injection Act, 1979. The Tax Appeal Tribunal, a quasi-judicial body established by the executive, held in favor of Mobil Producing Nigeria Unlimited. The FIRS now appealed to the Federal High Court in the instant suit. The Federal High Court held that the previously mentioned ‘fine for gas flaring’ could not be treated as a tax- deductible allowance because the flaring of gas was done in contravention of section 3(2) of the Associated Gas Re-injection Act. One bitter fact that emerged from this case is that the multi-national oil companies are still flaring gas without ministerial permission despite the express provisions of section 3(2) of the Associated Gas Re-injection Act. Thus, the multi-national oil companies still engage in the flaring of associated gas illegally and only turn around to pay paltry fines when the Nigerian petroleum authorities occasionally catch up with them. Second, the ruling of the TAT that held in favor of MPNU, which purported that fines paid for illegal activities of the multi-national oil companies are tax deductible demonstrates the environmentally disastrous romance between the executive arm of government in Nigeria and the multi-national oil companies. Fortunately, however, the Federal High Court in the instant case overturned this position, reflected in the patronizing decision of the TAT. The exposures made by this case have placed a huge question mark on the sincerity and ability of the Federal Government to enforce the Associated Gas Re-injection Act and put an end to gas flaring. A blanket ban of gas flaring in the oil fields without any provision for the discretion of the minister to permit gas flaring in any case is the only thing that will save the Nigerian environment from further degradation. The oil companies appear to prefer the payment of paltry fines, which is deductible from their tax obligations, to gas utilization and re-injection. This has further mirrored the reason why the deadlines for the elimination of gas flaring are always been shifted. The official records by the Nigerian government indicate that there has been 75% reduction in the quantity of the gas flared. According to the Nigerian Minister of State for Petroleum Resources, Dr. Ibe Kachikwu, Nigeria is only still grappling with the flaring of 25% of its associated gas.11 This claim is however subject to verification in view of the continued lack luster attitude of the multi- national oil companies towards the elimination of gas flaring. In an age of energy hunger, it is surprising that the MOC’s still require persuasion to utilize and commercialize the associated gas produced from their oil wells. Some records however, now place Nigeria as No.6 in the list of gas flaring countries as against its notorious second position to Russia.12 The fact that commercialization and utilization of natural gas in Nigeria have improved because of the various Liquefied Natural Gas (LNG) and power plant projects ongoing in Nigeria must however be admitted. What is not certain is the quantity of associated gas that makes up a component of the natural gas used in the LNG projects. It is in a bid to ensure that flare gas or /associated gas are utilized in the various LNG and power plant 10 FHC/L/3A/2017 11 Nigerian Leadership Newspaper online of 15 April 2019 12 World Bank Global Gas Flaring Reduction Partnership Report, 2017 Page | 187 EZE: Updating the Legal Framework for the Elimination of Gas Flaring in Nigeria projects that the federal government has enacted the Flare Gas (Prevention of Pollution and Waste) Regulations, 2018. 3. Flare Gas (Prevention of Waste and Pollution) Regulations 2018 The acclaimed objectives of the regulation are as follows: a) Protection of the environment b) Prevention of waste of natural resources c) Creation of social and economic benefits from gas flare capture.13 However, a closer and detailed look at the Regulation will reveal that its major objective is the commercialization of associated gas through the appointment of qualified persons selected under a competitive bid process to take the flare gas from the flare sites and commercialize them. The Regulation provides as follows: ‘The Minister may, by a permit to Access Flare Gas, authorize a qualified Applicant selected further to competitive bid processes conducted by the Federal Government to take flare gas on behalf of the Federal Government at any Flare Site as specified in the Permit’.14 Under the Regulation, an oil producer can no longer utilize flare gas in a commercial manner even if the gas is coming from the field or well covered by his license or lease but may utilize the gas for its own purpose only except where he formally applies to the Minister to use flare gas for commercialization. In this respect, the regulation provides as follows: Subject to the provisions of these regulations, any producer may apply to the Minister to utilize Flare Gas for commercialization if such application shall- (a) Exclude any Flare Gas volume that is being offered in a bid process conducted by the Federal Government or has been assigned to a Permit Holder; and (b) Be made by the Producer on behalf of a midstream subsidiary corporate entity either existing or to be incorporated.15 For such a licensee or lessee to commercialize flare gas, it must seek and obtain approval from the Federal Government. To demonstrate government’s eagerness to accommodate the MOC’s in the associated gas commercialization process, Producers or Permit Holders are not however to pay royalties to the Federal Government or any person for flare gas. The Regulation states as follows: Subject to the provisions of these Regulations, any Producer may utilize associated gas for its own purpose, provide that such utilization shall not reduce or affect any Flare Gas volume that is subject to a bid process by the Federal Government or has been assigned to a Permit Holder. No Producer or Permit Holder shall be liable for the payment of royalties to any person or the Federal Government in respect of Flare Gas.16 13 Regulation 1 , Flare Gas (Prevention of Waste and Pollution) Regulations, 2018. 14 Regulation 3 (1) ibid 15 Regulation 3(2) ibid 16 Regulation 3 (4) ibid Page | 188 AFJCLJ 1 (2019) From the foregoing provisions, it is clear that the intention of the Federal Government is to admit both local and international new entrants with the technical knowhow and expertise into the Nigerian oil fields for the purpose of utilizing and commercializing associated gas without excluding the MOC’s who are the Producers under the joint venture arrangements. This laudable move is in line with international best practices. Regulations 12 and 13 are however notable and may appear anachronistic to the global moves to bring the inglorious practice of gas flaring to an end in that, they retain the power of the Minister to issue permits to Producers for the flaring of gas. It only forbids the new players who are the Permit Holders for the purposes of commercialization of Flare Gas Scheme from flaring gas. Regulations 13 prescribe a fee of 2 USD for every 28.317 cubic meters (or 1000 cubic feet) of gas flared in an oil field that produces 10,000 or more barrels per day. It also prescribes a fee of ½ USD for every 28.317 cubic meters (or 1000 cubic feet) of gas flared for every field that produces less than 10,000 barrels of oil per day. Regulation 12 provides as follows: No Producer shall flare gas from any facility operated by such producer except pursuant to a certificate issued by the Minister further to the provisions of the Associated Gas Re-injection Act.17 No Permit Holder shall engage in Routine Flaring or venting of Natural gas from any facility operated by such Permit Holder.18 No Producer shall engage in Routine Flaring to vent natural gas from any Greenfield Project.19 The above Regulation retained the discretion of the Minister to grant a certificate of permission to a Producer to flare gas in existing oil field projects as provided for under the Associated Gas Re- injection Act but completely abolished gas flaring in new oil fields. It equally barred the new entrants who are been admitted into the industry for the purposes of gas utilization from all forms of routine flaring or vending of natural gas. Another very notable and remarkable provision of the Regulation is that Producers are now under mandate to provide accurate data of associated gas produced in the course of oil production within 30 calendar days once requested by the Department of Petroleum Resources.20 This requirement to provide accurate data on flare gas upon request is coupled with penal sanctions against violators. The Regulation provides that: ‘Any person who acting on behalf of the Producer supplies inaccurate or incomplete Flare Gas Data to the Department of Petroleum Resources or any other duly empowered lawful authority, commits an offence and shall upon conviction, is liable to a fine of N50,000.00 or to imprisonment for a term of not more than 6 months or both such fine and imprisonment.’21 A Producer is further required to maintain a daily log of the flaring and venting of natural gas produced in association with crude oil and shall submit the logs to the Department of Petroleum 17 Regulation 12 (1) ibid 18 Regulation 12 (2) ibid 19 Regulation 12 (3) ibid 20 Regulation 4(1) and 4(2) ibid 21 Regulation 5 ibid Page | 189 EZE: Updating the Legal Framework for the Elimination of Gas Flaring in Nigeria Resources within 21 days following the end of each month.22 In addition, a Producer shall prepare and submit an annual report to the Department of Petroleum Resources on or before 31 March of every year for each preceding year. The Report shall state all Flare Gas Data with respect to each flare site and contain a list identifying all flare sites for which the producer has not yet executed a connection agreement with a Permit Holder under the NGFCP.23 Permit holders are also to report annually to the Department of Petroleum Resources, the quantity of gas utilized each year from the flare site allocated to them.24 The Department of Petroleum Resources is required under the Regulations to publish in its database each year by June 30, the following information: (a) Flaring and venting by Producers, including the total volume of Flare Gas and the volume of Flare Gas as a percentage of the natural gas produced for each of the prior two years; (b) (b) associated gas produced in association with crude oil in order to calculate the Gas Oil Ratio for each of the prior two years; (c) associated gas consumed by the Producer for own consumption for each of the prior two years; (d) (d) a comparison of upstream petroleum industry flaring and venting performance by Producers against that from the previous two years; (e) A ranking of Producers by the associated gas utilization factor; (f) The volume of Flare Gas utilizes and gas flared by Permit Holders; (g) A comparison of volume of Flare Gas utilized and gas flared and vented by Permit Holders against data from previous years if available; and (h) the payments received in relation to the flaring of natural gas produced in association with crude oil by each Producer, 25 The Producer is under these Regulations bound to enter into a connection agreement with a Permit Holder as well as install metering equipment within the time required to do so by the Department of Petroleum Resources. He is also required to grant unfettered access to the Permit Holder to the Flare Site for harnessing the Flare Gas. Any default in compliance with the above conditions will attract an additional fine of 2.50 US Dollars per 28.17 standard cubic meters of gas (one thousand cubic feet) of gas flared within an oil field for each day of failure to comply with these regulations.26 A producer who continually fails to comply with these Regulations may have its operations suspended or its license revoked.27 These provisions are quite laudable in view of the fact that the MOC’s are saying that the gas is useless to them when they burn them off. There should be no difficulty in the Government appointing off takers to remove the ‘waste’ for them. 22 Regulation 15 ibid 23 Regulation 17 ibid 24 Regulation 18 ibid 25 Regulation 19 ibid 26 Regulation 21 (!) ibid 27 Regulation 21 (2) ibid Page | 190 AFJCLJ 1 (2019) 4. The Nigerian Gas Flare Commercialization Programme (NGFCP) The Nigerian Flare Gas Commercialization Program is therefore targeted at unlocking Nigeria’s gas potentials by preventing the wastage of Flare Gas as well as protecting the environment from further degradation as a result of gas flaring. The Nigerian National Petroleum Company (NNPC) has reported that a total of 301.69 billion standard cubic feet of gas valued at N162.912 billion was flared between November, 2016 and November, 2017.28 It is this kind of wastage, which is accompanied by environmental pollution that this program is set out to address. The legal framework for this program is majorly the Flare Gas (Prevention of Waste and Pollution) Regulations, 2018/. The Regulation is contained in the Federal Republic of Nigeria Official Gazette published on 9 July 2018. The Grund Norm for the program is the power conferred on the Minister of Petroleum Resources under the Petroleum Act to take Flare Gas from the Flare sites at no cost. 29 Under this program, off takers are to be licensed to take and commercialize the Flare Gas on behalf of the Federal Government. Two sets of agreements are involved in the program. The first Set of agreement between the off takers and the Federal Government consist of the Gas Supply Agreement and the Milestone Development Agreement. Under the Gas Supply Agreement, the off takers are to supply the harnessed gas at an agreed condition to the Federal Government while the Milestone Development Agreement secures the investment of the off takers in the program against government take over and other forms of official interferences. The second Set of agreements between the Producers and the off takers is the Connection Agreement and the Deliver or Pay Agreement. The Connection Agreement assures access to the Flare Gas by the Producer to the off takers while the Deliver or Pay Agreement guarantees compensation from the Producer to the off taker in the event of failure by the Producer to deliver the agreed gas volume from the Flare Site. From available records given by the Chairman of the Ministerial Committee on the program, Engineer Rabiu Suleiman, 800 applications have been received for the management of the 176 flare sites identified by the Ministry of Petroleum Resources.30 Out of this number, 226 have fulfilled the financial and other conditions tied to the bid. This is to say the least quite encouraging. It was a case of putting a square peg in a square hole when the present Nigerian Government appointed a Nigerian who is a top-level technocrat from one of the MOC’s to head the Petroleum Ministry. Although, this is not the first time such an appointment is made, it is hoped that if the present gas reforms is pursued to its logical conclusion, achievement of zero gas flares by 2020 could become a reality. 5. Conclusion and Recommendations Gas Flaring is both an environmental evil and an economic waste, which technically became illegal in Nigeria since 1984. The Federal Government has however been dragging its feet about its abolition as a result of the power that has been conferred on the Minister for Petroleum Resources under successive legislation to exempt some MOC’s from the application of the ban through the granting of permission to them to continue to flare gas for a fee. The Associated Gas Re-injection Act that abolished gas flaring in 1984 also gave power to the Minister of Petroleum Resources to make exemptions. The exercise of this power by the Minister has resulted in the continuation of gas flaring 28 NNPC Monthly Report, November, 2017 29 Section 35 (b) (i), Petroleum Act, Cap P10, Laws of the Federation of Nigeria, 2004 30 The Nigerian Sun Newspapers online of 11 April 22, 2019 Page | 191 EZE: Updating the Legal Framework for the Elimination of Gas Flaring in Nigeria by oil multinationals, thirty-five years after its abolition in Nigeria. Several amendments geared at discouraging gas flaring by introducing higher fees against those that chose to flare gas has not yielded much fruits. The embarrassing aspect as shown in the case of Federal Inland Revenue Service v Mobil Producing Nigeria Unlimited (MPNU)(supra) is that the companies now flare gas without ministerial permission and only turn around to pay fines if they are caught. They could also recover such fines as deduction from their taxes. The 2018 Flare Gas (Prevention of Pollution and Waste) Regulations and the Nigerian Gas Flare Commercialization Program designed to implement it appear to focus primarily on commercialization of flare gas rather than on prevention of pollution and waste as the name suggests but its positive implementation will certainly lead to zero gas flare situation in Nigeria by 2020. As laudable as the objectives may seem, the dependency syndrome displayed by the Departments of Petroleum Resources (DPR) in its relations with the Multinational Oil Companies must be checkmated if the Regulations is not to be rendered unenforceable. One way of dealing with the unbridled corruption in the petroleum sector is to provide under the Regulations for the punishment of staff of the DPR who through any act of commission or omission bordering on impropriety is shown to have aided, condoned or overlooked an act of violation of the Regulations by a Producer. This philosophical approach of the law that punishes both the violators and the regulators has been employed with tremendous success in the Chinese manufacturing sector. We are living in an age of energy hunger and it does not require much regulation to enforce utilization of associated gas except for sabotage from the regulators. The various gas utilization projects must be strengthened and vigorously implemented. Much as the 2018 Flare Gas. (Prevention of Pollution and Waste) Regulations are geared towards better utilization of gas, a complete ban on gas flaring implemented side by side with the NGFCP will be best for the Nigerian environment. The penalties to be paid may still not be sufficient deterrence if the multinational companies can find a way of manipulating the process. In these days of energy hunger coupled with expansion in domestic gas consumption, the producers are not supposed to have any difficulty utilizing and possibly commercializing associated gas. Where they honestly indicate interest in the Flare Gas Commercialization Program, they should be given preference, It is doubtful if the Permit Holders are going to introduce any new skills and technologies that the Producers do not already possess. What is needed is the political will to compel them by enforcing extant laws. Routine gas flaring should be outlawed completely and this should be subject to no exemption except in cases of emergency or in cases of safety flaring. To further give bite to the total ban, The Federal Government should ensure an accurate data of the quantity of Flare Gas available in Nigerian oil fields The Regulations must provide for the punishment of regulators who connive with Producers to violate the Regulations. Page | 192