AJLHR 3 (1) 2019
AFRICAN JOURNAL OF LAW
AND
HUMAN RIGHTS
VOL. 3 (1) JUNE, 2019
CITATION: AJLHR (2019) 3 (1)
Page | i African Journal of Law and Human Rights
© International Centre for Human Rights and Peace Studies (ICHRPS)
Published, June, 2019
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.
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AJLHR 3 (1) 2019 TABLE OF CONTENTS
Teaching Social Justice across Law Curriculum in Recharting Legal Professionalism in Nigeria FESTUS EMIRI, OLAOLU S. OPADERE & HABIBA MUSA 1
Doctors’ Civil Liabilities Arising from Negligent Prenatal Genetic Counseling: A Rwandan Perspective EVODE KAYITANA 15
From Trade Courts to Human Rights Tribunals: Contributions of Sub-Regional Courts to the Protection of Human Rights in Africa VICTOR OLUWASINA AYENI 22
Moral Entrepreneurs: A Viable Legislative Venture? T.A. YUSUF 36
Some Pathways for Psychology’s Influence on a Legal System JUDE U. OKOYE & IKENGA K.E. ORAEGBUNAM 46
An Appraisal of Polygamy in Contemporary Family Law Practice: Validity and Challenges ADESOJI KOLAWOLE ADEBAYO & FISAYO ANDREW BANKOLE 59
The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? VINCENT I. IWUNZE 74
Apprising the Syrian Conflict: A Failure of the Responsibility to Protect MAZI UDEGBULEM 91
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Ouster Provisions and Judicial Review in the Nigerian Communications Act: An Overview CHIJIOKE UZOMA AGBO 105
Appraising the Expanded Jurisdiction of the National Industrial Court under the 1999 Nigerian Constitution THADDEUS (TED) CHUKWUKA EZE 117
Supreme Court’s Decision in Mainstreet Bank Capital Ltd & Anor V Nigeria Reinsurance Corp Plc: Is the Supreme Court Pro-Arbitration? DAVID TARH-AKONG EYONGNDI & CAROLINE A. FABODE-BALOGUN 124
The Place of Rural Women in Environmental Protection in Africa C.I.N. EMELIE 136
Violation of Health and Reproductive Rights of Children in Nigeria: A Critique NNEKA OBIAMAKA UMEJIAKU & NGOZI CHISOM UZOKA 145
The Technique of Plea Bargaining in Criminal Justice: Lessons from Rwandan Gacaca Courts EVODE KAYITANA 153
Separation of Powers: An Imperative for Authentic Democracy in Nigeria ANNE AMUCHE OBIORA & ANN CHINWE AKPUNONU 164
A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China UZOAMAKA GLADYS EZE 176
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AJLHR 3 (1) 2019
EDITORIAL TEAM
EDITOR-IN-CHIEF: Ogugua V. C. Ikpeze, PhD (Law), LLM, BL, Professor and 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
EDITOR: Nnamdi Ikpeze, LLM, BL, College of Law, Afe Babalola University, Ado-Ekiti (ABUAD), Nigeria
EDITORIAL BOARD: Damilola Olawuyi, PhD (Oxford) LLM, BL, College of Law, Afe Babalola University, Ado-Ekiti (ABUAD), Nigeria Etefia Ekanem, PhD (Law), BL, Faculty of Law, University of Uyo, Uyo, Nigeria Peter Obi Okonkwo, PhD (Buckingham, United Kingdom), LL.M, LL.B, BL, Faculty of Law, Chukwuemeka Odumegwu Ojukwu University, Igbariam Campus.
EDITORIAL CONSULTANTS: Aare Afe Babalola, SAN, EMMANUEL CHAMBERS Nigeria; Founder and Chancellor, Afe Babalola University, Ado-Ekiti (ABUAD), Nigeria Hon. Justice Bode Rhodes-Vivour, Justice of Supreme Court of Nigeria Hon. Justice C. C. Nweze, Justice of Supreme Court of Nigeria C. U. Ilegbune, SAN, Professor of Law, University of Abuja, Nigeria Epiphany Azinge, SAN, Professor of Law and Formerly Director-General, Nigeria Institute of Advanced Legal Studies, Abuja/Lagos, Nigeria M T Ladan, Professor of Law, Ahmadu Bello University, Zaria, Nigeria Joy Ngozi Ezeilo, Professor of Law, University of Nigeria, Enugu Campus, Nigeria M O U Gasiokwu, Professor of Law, Delta State University, Oleh Campus, Nigeria Chris Ohuruogu, Professor of Law, Baze University, Abuja, Nigeria Dakas C.J. Dakas, SAN, Professor of Law, University of Jos, Jos, Nigeria Carol Arinze-Umobi, Professor of Law, Nnamdi Azikiwe University, Awka, Nigeria
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GUIDELINES FOR CONTRIBUTORS African Journal of Law and Human Rights (AJLHR) aims at publishing peer-reviewed papers dealing with issues of law and human rights which are of relevance to Africa, Africans, and scholars of Africa. AJLHR appears twice in a year in June and 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 and human rights scholars 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 welcome. Contributors should adhere to the following guidelines: 1. Language The language of the manuscript must be English (either American or British standard, 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 E Mckendrick, Contract Law (5th edn, London: Palgrave Macmillan, 2013) p.3.
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AJLHR 3 (1) 2019
Books by multiple authors PA Thomas & J Knowles, How to use a Law Library (London: Sweet & Maxwell, 2012) p.9. Chapters in Edited Books S Freedman, ‘Equality Issues’ in B Markesinis (ed), The Impact of the Human Rights Bill (Oxford: Clarendon Press, 2012) p.3. Journal Articles A Burns and B Lynch, ‘Pleading Fraud and More’ (2014) 4 SJ, 304 Articles in magazine and Newspapers F Cutriel, ‘What Freud Got Right’, Newsweek, November 11, 2014, p.40 Articles on the Internet S Cooper, ‘Human Rights and Legal Burdens of Proof’ (2013) 3 Web J Current Legal Issue.
Submission of Manuscripts Interested contributors are to submit their manuscripts/papers to [email protected] and copy to [email protected] and to [email protected]. Papers are received all through the year.
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TEACHING SOCIAL JUSTICE ACROSS LAW CURRICULUM IN RECHARTING LEGAL PROFESSIONALISM IN NIGERIA
Abstract This paper focuses on how to prepare students for professional practice of the Law in Nigeria, in exercising professional and good judgment, by teachers introducing them to social justice issues often silenced in the formal nature of legal education. By empirical examples and jurisprudential argument, it shows how social justice is not incongruent with the modular curriculum spanning transactional, adjectival and theoretical subject modular courses of law. The examples will show how the teacher can advance the needed diversity and inclusion of social justice in specific practice settings, such as public interest law, in-house practice, law firm practice, and government practice, to create innovative problem-solver lawyers, with keen interest to advance common societal good.
Keywords: Teaching, Justice, Curriculum, Professionalism
1. Introduction A lot of law teachers mistakenly think that educating law students is all about teaching them substantive law as provided in the National Universities Commission Benchmark Minimum Standards (NUC BMAS) curriculum. This thinking is responsible for the formal pedagogy used in educating future lawyers. This is however, a fundamental error. Teachers are responsible for preparing legal professionals who will go out into society to shape and affect the world in deep and lasting ways— shape policy, law, make law, enforce and interpret law, defend people, shape the destiny of society and businesses. Thus, legal education that does not teach social justice and encourage people’ activism is bound to be a great disservice to the society. Sadly, because many teachers think of social justice as occupying same square as subject matter that remedies oppression, exploitation, marginalization, powerlessness, and the like, they imagine that it is a subject more congruent with law curriculum that teach more of courses like human rights, gender and law, race and the law, critical thinking, jurisprudence, etc. Afore explains why traditionalists1 cannot think that a space exists for
Festus EMIRI, Professor of Jurisprudence, E.K. Clark Distinguished Professor of Lawyering Skills, Edwin Clark University, Kiagbodo, Delta State, Nigeria. Email- [email protected]. Phone Number- 09087466507 * Olaolu S. OPADERE, PhD, Senior Lecturer, Department of International Law, Obafemi Awolowo University, Iloe-Ife, Osun State, Nigeria. Email- [email protected] Phone Number-08030686455 * Habiba MUSA, PhD, Senior Lecturer, Department of Public and International Law, Nasarawa State University, Keffi, Nasarawa State, Nigeria. [email protected] . Phone Number- 08036164557. 1 This describes the ‘traditional advocate’ who merely sees and pursues absolute fidelity to clients’ interest as all that is required of his/her professional identity. More shall be said in this regard in the course of this paper.
Page | 1 EMIRI, OPADERE & MUSA: Teaching Social Justice across Law Curriculum in Recharting Legal Professionalism in Nigeria interrogating social justice in transactional and adjectival subjects. Such thinking is more wrong than right as there are plenty opportunities to address social justice issues in the core curriculum, in fact, across the curriculum. Teachers must see the importance of teaching social justice across the curriculum to help stem growing public dissatisfaction with the laws empire, a situation graphically brought to the centre-burner by events at the 1991 meeting of the American Bar Association (ABA), in Atlanta, Georgia. Permit us to briefly relate the event. Participants were summoned to appear for jury duty. For what purpose? To conduct a moot court programme, entitled ‘In the Court of Professionalism: The People v The Modern Lawyer, The Organised Bar, The Law Schools & The Judiciary.’ The attendees of the annual meeting were summoned to appear for ‘jury duty’ to hear the allegation that each of the defendants had contributed to the decline in lawyers’ professionalism. The plaintiffs sought equitable relief to reverse this trend. The named defendants were charged with having wilfully and negligently contributed to a decline in lawyers’ professionalism. The modern lawyer did so by creating undue economic pressures through outrageous billings; the Organised Bar by failing to meet its obligation to provide equal access to justice through adequate distribution of legal services, thereby resulting in millions of poor and middle-class clients going unrepresented; the Law Schools for failing to prepare students for the practice of law; and the Judiciary by failing to vigorously enforce rules of professional conduct and manage caseloads fairly and expeditiously. What this tells us is that dissatisfaction with lawyers is as old as law itself.2 And why is there such dissatisfaction? Simply this: practice of law is too often devoid of social justice ingredient. We shall not bother you with the outcome of the moot trial. We have only used the scenario to show that the law teacher must plot our discussion today.
Think for once, if teachers incorporate social justice across the curriculum and take seriously the teaching of professional responsibility, would it not help reverse the declining trend in professionalism? That way, teachers contribute to training future lawyers to be protectors and promoters of the architecture of the rule of law which is fundamental to autonomy, personal freedom and development. Doubtless, Law is a noble profession that offers plenty opportunities of service to society; and as teachers, we have the onerous responsibility to shape how future lawyers identify with the profession. Lawyers are honourable professional men and women in society. Our status is an enviable one, different from many professions. Roscoe Pound, for example, long ago stated this about the profession: ‘It must not be supposed, however, that an organised profession of lawyers or of physicians is the same sort of thing as a retail grocers’ association ...’3 Lawyers are those who protect the architecture of the rule of law which is fundamental to autonomy, personal freedom and
2Edmund Burke, Thoughts on the Cause of the Present Discontent, 1770. See also, Dick the Butcher Dick in Henry VI, Second Part, scene ii (The Complete Work of William Shakespeare, NY: Random House Value Pub., 1975, 579 (‘The first thing we do, let’s kill all the lawyers’); Edward D. Re, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (2012) 68 St. John’s L. Rev. 85; Roscoe Pound, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 29 ABA Rep. 395. 3 Roscoe Pound, The Lawyer from Antiquity to Modern Times, 1953, 7.
Page | 2 AJLHR 3 (1) 2019 development. A history of the profession as developed in America and England, reveal that lawyers by training constitute a ‘brand of aristocracy’ to check excesses of government and man.4 That explains why for centuries it is adjudged to be great, noble and honourable. As a profession, it offers countless opportunities for service, not only to clients but also to society. Lawyers have and will continue to make countless contribution to society. They have promoted causes and aspirations of peoples subject to abuse of power. Of the 56 signers of the Declaration of American Independence, 33 were lawyers. Of the 54 members of the Constitutional Convention, 34 were lawyers. In Nigeria, the case is not much different, as both the 1979 and 1999 Constitutions were spearheaded by lawyers. Over the next twenty years there will be more than 300,000 lawyers who will graduate from Nigerian faculties of law. These students will be leaders of the next generation and will include lawyers of all stripes as well as heads of state, legislators, judges and justices, leaders of the Bar, business and the world.
2. Conceptual Clarification of Social Justice Social justice across law curriculum could be described as the procedure or process of subjugating any form of oppression including manipulation, marginalization and cultural imperialism. Other areas that fit this definition of social justice focus on the rights of the disabled, the elderly, children, and families. Any questions that implicate issues of power imbalance within society can be deemed ‘social justice issues.’ Social justice curriculum implicates two important questions. Is it desirable to incorporate it throughout the curriculum? If the answer is yes, then what methodology should teachers use in its incorporation? The first question is fairly answerable. It is desirable for many reasons. One, lawyers play an important role in the democratic process in any country. Two, the citizenship served by the profession is diverse in many ways. To serve the diversity, lawyers need to understand the susceptibilities created by the diversity in order to serve them with sufficient empathy. Importantly, teaching social justice helps future lawyers to create a felt connection with the real world of practice as they get into the trenches of lawyering and see how social reality is negotiated through the prism of law.5 Additionally, global best practices in legal education recommend that teachers must teach not only substantive law, but also skills that allow future lawyers to relate to clients and represent them
4 See for example Federalist, Paper No.35, ‘Concerning the General Power of Taxation’, available at: http://avalon.law.yale.edu/18th_century/fed35.asp. Accessed 25 June 2018; where Alexander Hamilton wrote: ‘Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of the industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interest of the society? He suggested that while landowners would be motivated to promote their financial interest, legal professionals were perfectly situated to direct individual energy towards public good because in his considered opinion, as a class, ‘the learned professions… form no distinct interest.’ 5See American Bar Association Section on Legal Education and Admissions to the Bar, Legal Education and Professional Development- An Educational Continuum- Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, 1992, generally referred to as the MacCrate Report, available at: https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_legal_education_an d_professional_development_maccrate_report).authcheckdam.pdf Accessed 25 June 2018.
Page | 3 EMIRI, OPADERE & MUSA: Teaching Social Justice across Law Curriculum in Recharting Legal Professionalism in Nigeria effectively.6 This paper shall therefore pay attention to the techniques that can be effectively used to teach social justice across the curriculum.
3. How Law Schools Presently Teach Social Justice Once law students arrive as fresh men and women in the faculty, one thing they quickly learn is how to distance themselves from their prior belief of what justice means. Teachers and the profession encourage them to see the formalistic separation of personal belief from professional commitments. The status of justice located in many law school buildings portrays justice as blind to preferences. So, from the start they are told to be dispassionate and logical in reasoning. Positivism associated with science is emphasised. Through the prism of IRAC7 they are taught to ‘think like a lawyer,’ focus on only relevant facts to the abstract legal principle on which a case turns.8 So over time they come to see and redefine human conflict according to the parties’ posture as plaintiff or defendant in a given case, disputing social controversies analysable through the lens of abstract law.9 By so doing, they gradually distance themselves from the human elements, stories and realities that trigger conflict. Once they are able to reason in syllogism, issue-sport, apply the IRAC rule, their teachers deem them good students and they are rewarded with good grades. They graduate with top grades, get hired in deep pocket metropolitan law firms and they are seen by many as successful lawyers. Because they have travelled along this (supposedly scientific) path of legal education that separates context from the learning process, yes, with little or no dose of social justice, they invariably turn out as traditional advocates who see absolute fidelity to clients’ interest as all that is required of their professional identity. Such a stance is, however, seriously flawed. A good lawyer’s professional identity should be defined by higher purpose than sheer advocacy. A lawyer ought to follow a course of action that would promote justice in a broad sense.10 New students are often made to reason that success at the bar means following the ‘jones.’11 This is what creates a situation where lawyers become self-seeking. In effect,
6Ibid,213: which states that lawyers need to be committed to creating a just, fair, and moral society. 7 Acronym for Issue, Rule, Application, and Conclusion. See The University of Western Australia, ‘Law School IRAC Guide’, available at: www.law.uwa.edu.au/students/Wellbeing/survival-guide/irac-guide Accessed 25 June 2018. 8 For criticism of the IRAC rule, see Festus Emiri, et. al. ‘Revisiting the Traditional IRAC Organisational Structure for Legal Analysis: Towards a Multidisciplinary Approach’ (2015) 11 NLJ 34; Laura P. Graham, ‘Why-IRAC? Revisiting the Traditional Paradigm for Writing About Legal Analysis’ (2015) 63 Kansas L. Rev. 681 at 706. 9Duncan Kennedy, ‘Freedom and Constraints in Adjudication: A Critical Phenomenology’ (1986) 36 J. Legal Educ. 518. 10 William M. Sullivan et al., ‘Educating Lawyers: Preparation for the Profession of Law’ (Jossey-Bass 2007) [hereinafter Carnegie Report], 133 (the report suggest that law schools should teach professional identity and morality as central theme in legal education). See also Joshua J. A. Henderson, The Ethical Development of Law Students: An Empirical Study (2009) 72 Sask. L. Rev. 75. 11 An idiomatic expression signifying a comparison of oneself with the successes of others, as the benchmark of achievement, social class, status, and/or acceptability.
Page | 4 AJLHR 3 (1) 2019 legal education, instead of helping future lawyers to appreciate diversity of thought and embrace social justice, tends to relegate individual perspective in favour of ‘thinking like a lawyer—’ a process that trumps competition over cooperation, compassion, problem-solver and problem-avoider. Recognising the grave danger this poses for the practice of law in society, law teachers started a wave of law clinics as a social justice dimension to legal education.12 As a method of legal education, clinic in broad terms includes in-house live client clinics, externship, community education projects, simulation courses, skills training courses, and interactive teaching methodology. In its narrow sense, it refers to students’ receiving course credit for the combination of their practical work on client’s case at the university-based clinic, and their participation in a classroom component or tutorial.13 As a method of teaching, it has been supported for improving teaching and learning and for providing legal assistance to the poor in society.14It has been suggested that the expansion of clinical legal education is the agent provocateur for the introduction of poverty and development law issues in law curriculum which were generally muted in traditional curriculum steeped in commercial and middle-class interests.15In providing access to justice for the disadvantaged in society, clinical legal education enhances the values of equality as an important ingredient for democracy and good governance. Clinical legal education further improves the quality of legal education in that it provides opportunity for students to learn first-hand lawyering skills such as listening and interviewing clients, negotiation, analysing cases, drafting documents and court processes, ethical issues that arise in real cases, which are absent from traditional law school curriculum.
Outside these visible benefits to effective teaching and learning, clinical education carries with it direct, immediate benefit to law students. To the extent that it resembles law apprenticeship it provides the necessary (in-house, university) experience for disadvantaged students to be client-ready for practice on graduation, without needing to seek placement in high-net worth chambers not readily accessible by poor students. For the indigent in society, clinical legal education can be a veritable
12 Barry, Margaret Martin, Jon C. Dubin& Peter A. Joy, Clinical Education for This Millennium: The Third Wave; SuellynScarnecchia, ‘The Role of Clinical Programs in Legal Education’ (1998) 77 Mich. Bar. J. 674 (the article discusses the clinical programs in Michigan enrich the State Bar, and provides valuable training in legal analysis, practical skills, ethics and professional responsibility, as well as service to the community). 13 Peggy Maisel, ‘Sustaining and Expanding Clinical Legal Education in Developing Countries: What We Can Learn from South Africa’ (2007) 30 Fordham Int’l. L.J. 374 at 378. For general discussion on clinical legal education, see, Leah Wortham, ‘Aiding Clinical Education Abroad: What Can Be Gained and the Learning Curve on How to Do So Effectively’ (2006) 12 Clinical L. Rev. 615; Richard J. Wilson, ‘Training for Justice: The Global Reach of Clinical Legal Education’ (2004) 22 Penn. St. Int’l. L. Rev. 42; Symposium, ‘An Overview of Civil Legal Services Delivery Models’ (2000) 24 Fordham Int’l. L.J. 225. 14Jane H. Aiken, Provocateurs for Justice (2001) 7 Clin. L. Rev. (discussion on how clinical legal education offers unique opportunities to inspire law students to commit to justice and how clinicians ought to provoke a desire to do justice in their students). 15Maisel (note 16).
Page | 5 EMIRI, OPADERE & MUSA: Teaching Social Justice across Law Curriculum in Recharting Legal Professionalism in Nigeria mechanism for addressing their everyday concerns such as those related to shelter, family matters, and civil rights. While the law school clinics may not be able to address wholly these concerns, they often are the key provider of representation for the poor in this respect, than the traditional lawyer-client setting. This has been a great way to teach social justice in the curriculum. No wonder the call for clinical legal education is loud.16 Indeed, it is a significant way to prepare students for the practice of law and teach social justice and it is in recognition of the importance of experiential legal education that some schools now require credit-bearing law clinic or externship as a graduating requirement.17 Since law clinic in its narrow sense involves specific credit-bearing courses, it has proved restrictive as a tool for teaching social justice across the curriculum, a challenge better served by legal storytelling and writing techniques across the curriculum.
4. Teaching Social Justice through Legal Narrative Storytelling has proved useful in teaching social justice across curriculum in many jurisdictions, as teachers increasingly recognise the power of stories in creating understanding and connecting legal experience to human experiences.18 It is suggested that stories derive their potency from ability to convey truth in non-coercive ways that enable the hearer to challenge received wisdom. One example, perhaps familair to many, will do. It is the story of the encounter between Prophet Nathan and King David.19 To lay bear the King’s sin of adultery, covetousness and murder, the prophet told a story that made it easy for the king to reach proper logical conclusion in a non-coercive manner. Certainly, that was a better way to make the king remoseful than an abstract appeal to the blackletters of the Mosiac Law that condemned the king’s excesses. Smart teachers can use stories across the curriculum to draw attention to gaps in justice in teaching a specific topic. Stories can be used to draw attention to
16Jerome Frank, ‘Why Not a Clinical Lawyer-School?’ (1933) 81 U. Pa. L. Rev. 907; Nigerian Bar Association Task Force Report, 1999. See also ABA Final Report and Recommendations of the Task Force on Professional Competence, 1983, 11-12; ABA, Section of Legal Education and Admission to the Bar, Report and Recommendations of the Task Force on Lawyer Competency: The Role of the Law School, 1979, 17; Carnegie,2007 the Best Practices for Legal Education and the MacCrate Reports. See also, John S. Elson, ‘Why and How the Practicing Bar Must Rescue American Legal Education from the Misguided Priorities of American Legal Academia’ (1997) 64 Tenn. L. Rev. 1135 (the paper argues that ‘there are no longer any good reasons to accept the status quo in legal education,’ urging the leadership of the legal profession to use its considerable authority to compel law schools to change). 17 For a survey of schools in the U.S. see Karen Tokarz, Antoinette Sedillo Lopez, Peggy Maisel & Robert Seibel, ‘Legal Education at a Crossroads: Innovation, Integration, and Pluralism Required!’ (2013) 43 Wash. U. J.L. &Pol’y. 11 at 45-46 & nn.154-55 18David Ray Papke, Narratives and the Legal Discourse, Deborah Charles Pub., 1991. See also, James Elkins, ‘Writing Our Lives: Making Introspective Writing a Part of Legal Education’ (1993) 29 Willamette L. Rev. 45; Binny Miller, ‘Give Them Back Their Lives: Recognising Client Narrative in Case Theory’ (1994) 93 Mich. L. Rev. 485 (showing how the practice of lawyering should be reconstructed to embrace a greater role for clients in constructing case theories). 19Holy Bible, 2 Samuel 12: 1-13.
Page | 6 AJLHR 3 (1) 2019 particular values as justice, muted voice of outsiders, empathy, compassion, etc. Regardless of the content of a course, the teacher can explore narrative theory and storytelling practice.
Let us consider how the use of a similar parallel constructed by Singer can be used to teach the complex and flexible nature of property rights.20 It is the story about a factory closure, which we contextualise thus: a factory in a city has operated for over fifty years. The city has grown around it, relies on it for employment and most of the city’s activities are connected with it. Yet the company appears to be unconcerned about the welfare of the city. Its managers operate on the shareholder- maximising philosophy. Ruled by a distant and seemingly unapproachable board of directors, the company closes the factory. The effect of this on the city is enormous. Many suffer financial reverses, and drop in their living standard. All its workers are unable to put things, including family life together. The teacher can ask a property or business associations’ law class if the company’s actions amount to a betrayal case. One where the workers trusted the company and depended on it? Should we think the company lived off the trust, took advantage of it, and abused it? This no doubt would be nonsensical argument by common count. Most of our students will think that such an argument is unlikely to persuade a court. It simply would not work. Instead, they may consider the fact of closure regrettable. Those with knowledge of an economic analysis of law can write off the situation as one example of efficiency at work--the efficient restructuring of production through the invisible hand of the market.21 Yes, market decisions should pay less regard to social expectations. There is no quarrel with these shades of reasoning. After all, it is not the business of a company to provide welfare for people. That business rests squarely with government under chapter two of our Constitution.22 If this were a writing assignment, we are sure how our students would answer. With hindsight of their IRAC model they likely will raise four pillars of argument against regulating factory closures. First, they recall from memory and use property law hypothesis.
A necessary incidence of property right is ability to treat owned res the way the owner wishes, subject to a few rules on use and enjoyment. The factory is property. The owners are the shareholders. So, they can choose to do what they want with it. Regulating closures would derogate from the right. For the purpose of this paper, let us call such an argument the property argument. Second, they apply their learning from company law. Quickly they remember that as a general rule company law is rooted in shareholder-maximising principle. They are the ones who hire managers to maximise profit. That being the case, if an investment decision is closure, so be it. We refer to this as the market argument. Recalling further a fundamental ethos of contract law (freedom of contract) they wonder why the workers think that the situation raises an abuse of trust argument. The foundation of contract they learnt in school makes freedom of contract central. The workers should have been smart when they
20Joseph W. Singer, ‘Persuasion’ (1989) 87 Michigan L. Rev. 2442. 21Richard Posner, Economic Analysis of Law, 8th ed. 2010. 22 1999 Constitution of the Federal Republic of Nigeria.
Page | 7 EMIRI, OPADERE & MUSA: Teaching Social Justice across Law Curriculum in Recharting Legal Professionalism in Nigeria took their job offers. It was a bargain relationship. If they now feel disappointed because their fortune nosedives, that is their fault. Freedom of contract should have moved them to negotiate severance payments to cushion the possible challenge that has now arisen. Let us call this the freedom of contract argument. If they are good enough to recall lectures in constitutional/administrative law, then they may also question the legitimacy of the breach of trust workers position by arguing that what the workers are demanding in the circumstance is tantamount to asking the court to create and recognise new property rights. That they say should be the business of the legislature rather than the courts. Let us call this deference to the legislature argument. These answers are fine when viewed from the prism of IRAC; But certainly, flawed from a social justice dimension. They sure do think like lawyers, but with little recognition of the social implications of their scientific solution. The students take a monolithic, atomistic, abstract and a contextual view of the problem. For them IRAC is the key to solve the factory closure case. Their reasoning is stewed with no fellow feeling. They obviously cannot do a good job representing the miserable workers in this factory closure case. They side with deep-pocket shareholders and the framers of company law legislation and the wider middle-class architecture of law.
To teach social justice to the class a teacher can simply tell a hypothetical story such as this: All the students of the Nigerian Law School six campuses are to be in their campus auditoriums on the Monday, a week to the commencement of the Bar examination. The purpose is to listen to an important satellite talk by the Director-General (DG) of the Nigerian Law School (NLS) on behalf of the Council of Legal Education (CLE). Accordingly, they are gathered. The DG’s opening speech is revealing. For some time now, the profession and the public are concerned about the competence and character of new wigs. Reports of scandals involving lawyers are on the increase. The Legal Practitioners Disciplinary Council (LPDC) is increasingly saddled with malpractice complains. As a result of this, the CLE two years ago set up an advisory committee to help address the challenge. The committee members were drawn from the judiciary, inner and outer Bar, and the ministries of justice across the country. Their report is now out. In it they attribute the downslide in competence and character to the large number of people seeking to become lawyers in the faculties and the NLS and have recommended a 50% reduction across board and that the pass mark for all law subjects will be 50% and no longer 40%. They have also asked the CLE to increase the Bar vocational training from one year to two. It is also their recommendation that it be implemented immediately to prevent further slide.
The CLE at its last meeting a few days ago unanimously approved all the recommendations and have instructed the NLS to commence its implementation with you. So, ladies and gentlemen we have no choice but to start with you. Please take a good look at your neighbour. He or she may never become a lawyer. Only 50% of you can be lawyers. The minimum pass mark is 50%. Even if more than 50% of you score above the minimum 50% pass mark in the five Bar vocational subject, we would have no choice but fail them because only half of you can be lawyers. Also, your programme of study with us
Page | 8 AJLHR 3 (1) 2019 is no longer one year. It is now two. Your exams will not be next week. It will be one year one week from today. We recognise that implementing this new policy can be disruptive to you; nonetheless, these measures are to promote efficient delivery of legal services. Good morning, Bar-aspirants. That ends my speech. You may now respond if you have anything to say. You can imagine how charged all the auditoriums would be. The students are overwhelmed with anger. You cannot do this. It is totally unfair, a breach and abuse of trust by CLE. They insist the position of CLE is unsustainable. If you do not immediately reverse yourself, we shall seek redress in court. You cannot toy with our rights this way and get away with it. Our story ends. The teacher can now play the devil’s advocate, using the four-pillar argument against the students which they erected against the city workers in the closure case. Starting with the property argument the teacher could ask them, do the students have rights? The NLS is the property of CLE. Consult the law. Since an owner of property can do what she wants with it, that’s what CLE has done, change its policy. Remember the market argument. The board of CLE is charged under the Act with regulating vocational training and continuing legal education for lawyers to improve legal service delivery. So, it is simply promoting market efficiency for legal services by the new rules. It is like an investment decision to gravitate resources to most valued person.23 The students may think this most unfair that CLE changes the rules in the middle of the game. Here again, the teacher can resort to the freedom of contract argument, by simply saying: ‘gentlemen, please take a good look at the NLS students’ prospectus. It clearly states that CLE/NLS can change the rules of engagement at any time. That is exactly what they have done. If you didn’t like it, you should have bargained out of it.’ Finally, our teacher can refer to the deference to legislature argument. Suppose (without conceding) that you think it is a breach of trust to change the rules in the middle of the game, this still does not ground reason for a court to grant the students the injunctive or monetary reliefs. By litigating against CLE/NLS you are asking for a right to attend their school, participate in their programme and be sponsored by them for admission to the Nigerian Bar—all that against the better judgment of the owners—CLE who run the NLS. Is that something they promised you? Did you bargain for it? In the absence of any contract giving you the right, your claim would effectively be seeking the creation of a new property right—an entitlement to a qualifying certificate for call to Bar.
This is a business more appropriate for the legislature, not the court. At the end of this exercise and accompanying story, no doubt the students would begin to reason that the court should interpret contracts in the light of new social conditions and values in a way and manner that promotes reasonable reliance on contract to promote justice. They will all begin to think that even in the absence of legislation to their aid, the court should create (new) rights that will prevent the CLE from frustrating their reasonable expectations. They trusted the CLE, and that trust is abused. In one swoop they realise that rights should transcend explicit contract terms. By creating a felt connection between them and the vulnerable factory workers they realise how narrow legal reasoning is, especially that which subscribes to the IRAC model can be. They graphically see that lawyering must take account of
23 Posner (note 25), 16.
Page | 9 EMIRI, OPADERE & MUSA: Teaching Social Justice across Law Curriculum in Recharting Legal Professionalism in Nigeria real life experience and be interpreted in a manner that advances social justice. Their atomistic view of legal rules and principles suddenly get converted to energy, expressed in legal creativity and invention, without negating the rules and principles. They can now see that the prevailing factory closure rules translated into company law, property law and the like are mere superstructure of law constructed from the perspective of corporate managers who make investment decisions on behalf of shareholders, without outsider perspective. They begin to appreciate that outsider perspective is muted by law. The CLE/NLS story is what gives them the insight. They recognise that free market argument and its cousins assume too much. In real live situations, the relative bargaining power of parties to contracts is often unequal. The factory closure scenario teaches the students to understand and experience both vulnerability and broken trust. They are forced to see what it is for the city workers to be at the absolute mercy of corporate managers in the absence of contract hedging their future. Yes, stories do have power and can be useful in teaching.24 This method can be employed across the curriculum (whether for transactional, adjectival, skills and theory courses) to teach our students that most of what we think is received wisdom through legal rules are susceptible to social justice flaws.25
5. Legal Research and Writing (LRW) Course Legal research and writing course also provides another fine way to teach social justice across the curriculum.26 As an introductory primer course (within the context of curriculum design and classroom discussion) in the faculty, teachers can use it to help students develop a sense of professional identity and philosophy of lawyering. Teachers can do so by designing writing and research assignments that incorporates social justice where lawyers are viewed as humanistic and compassionate problem-solvers instead of solely as gladiator-advocates ever wielding the sword for a client.27 Teachers can deepen the humanistic perspective by teaching communication skills, oral and
24‘Symposium: Law, Knowledge, and the Academy’ (2002), 115 Harv. L. Rev. 1278. 25For reading on the use of stories to teach specific doctrines, see Carolyn Grose, ‘Storytelling Across the Curriculum’ (2010) 7 J. Asso. Legal Writing Directors 37; Stacy Caplow, ‘Putting the ‘I’ in Wr*t*ng: Drafting an Effective Personal Statement to Tell a Winning Refugee Story’ (2008) 14 Leg. Writing 249 (discussion on how to tell a winning refugee case); Paul L. Caron, ‘Back to the Future: Teaching Law Through Stories’ (2002) 71 U. Cin. L. Rev. 405; Stacey A. Tovino, ‘Incorporating Literature into a Health Law Curriculum’ (2005) 9 Mich. St. U. J. Med. & L. 213; Judith G. Greenberg & Robert V. Ward, ‘Teaching Race and the Law Through Narrative’ (1995) 30 Wake Forest L. Rev. 323; and Beryl Blaustone, ‘Teaching Evidence: Storytelling in the Classroom’ (1992) 41 Amer. U.L. Rev. 453. 26 Even though legal research and writing is not a course under the NUC BMAS, it is close in content to our legal methods and research course in Nigeria. On how to use legal writing to teach social justice, see Pamela Edwards &Sheilah Vance, ‘Teaching Social Justice through Legal Writing’ (2001) 7 J. Leg. Writing 63. 27 See Edwards & Vance (note 30); Miki Felsenburg&Luellen Curry, ‘Incorporating Social Justice Issues into the LRW Classroom’ (2003) 11 Persps. 75 (showing how If litigation is appropriately viewed as a last resort of conflict resolution, integration of other problem-solving methods and approaches may help
Page | 10 AJLHR 3 (1) 2019 written, in ways not particularly framed within the adversarial model. Accordingly, writing exercises should be taught as a recursive process, incorporating non-adversarial approaches in the curriculum by teaching future lawyers to solve problems more collaboratively, recognising that law is not really a science but a human endeavour that strives to resolve disputes in the context of what is just and fair within the confines of the adversarial system.28 Let us see how a skills teacher uses social justice issues to create context for legal writing problem using the book Damages,29 as part of the LRW curriculum.30Writing teachers who use the book have often employed it to give students a realistic broaden students’ perspective and understanding of the law and provide students with a more realistic assessment of how lawyers in practice incorporate a range of problem- solving techniques). 28 Beth B. Cohen, ‘Helping Students Develop a More Humanistic Philosophy of Lawyering’ (2007) 12 J. Legal Writing 141 (article considers the need to help students develop a cohesive philosophy of lawyering and suggests some ideas and methods to help introduce these concepts and concerns to students by focusing on legal research and writing curriculum and pedagogy as well as professional development programs that can enhance the curriculum). 29 Berry Werth, Damages: One Family’s Struggle in the World of Medicine, Berkley Pub. Group, 1999.The book is a narrative fiction story. It is one book devoted to telling ‘lawyers’ stories.’ It is a story about how Donna Sabiawho went into labour on April 1, 1984, expecting healthy twins. Instead, one baby was stillborn—and the other just barely clung to life. Little Tony, was born with brain damage so serious that it left him severely disabled.He is blind and cannot walk, talk, understand language, or even perform the most basic self-care. Caring for their son would exhaust the Sabias emotionally, financially, and physically, and put a nearly lethal strain on their marriage. The Sabias thereafter brought malpractice litigation. The book reports the perspective of all parties involved in the litigation: the twins’ parents, the obstetrician who delivered the twins, the hospital executives, and the nurse and nurse-midwife involved in the birth, as well as all the attorneys involved in the complex litigation. Even though they thought the litigation might bring them some relief, they discovered that what it brought was a seven-year-long maelstrom of conflict, stress, and further expense. The book tracks the case through the discovery process, including multiple expert depositions, two mediation attempts, and final settlement of the case for over seven million dollars. At the end of the book, the medical cause of twin Michael’s death and Little Tony’s disability remains unknown. All aspects of the litigation, however, are fully explored in the book—the impact of the lawsuit on Sabias marriage, their struggles to raise their disabled child, the disruption to the life and career of the obstetrician, Maryellen Humes, who delivered the twins. Throughout the book, the parties and their attorneys grapple with questions that should interest any aspiring lawyer, including the role of truth in a medical malpractice lawsuit, the effect such lawsuits have on medical malpractice insurance coverage and how a doctor practices medicine, how the amount and availability of liability insurance can drive a lawyer’s strategy, and the ethical and professional questions faced by the lawyers for all parties at each juncture of the litigation. The book also offers a very readable, nuts-and-bolts dissection of complex litigation, and provides the uninformed reader with a full picture of the way those lawsuits operate. 30Jeanne Kaiser & Myra Orlen, ‘Using a Literary Case Study to Teach Lawyering Skills: How We Use Damages by Barry Werth in the First-Year Legal Writing Curriculum’ (2007) 12 J. Legal Writing 59 (an article detailing how the authors teach using the book Damages in teaching social justice perspective to students in legal writing class in Western New England College School of Law, Springfield, Massachusetts literary account to acquaint our students with an authentic picture of litigation, while still teaching the
Page | 11 EMIRI, OPADERE & MUSA: Teaching Social Justice across Law Curriculum in Recharting Legal Professionalism in Nigeria insight into the litigation process and how the process impacts on peoples’ real lives, so that students can frontally see that every decision to litigate implicates serious moral, ethical, professional and institutional consequences. As a narrative book, it shows how lawyers apply legal doctrines in the real world. Damages capture the highs and lows of litigation in a way that is difficult to teach in a class lecture. It buries the reader in the personal lives of all the parties— lawyers, plaintiffs, and defendants alike. It navigates the litigation process in a way hardly captured by cases reported in law reports, as it gives a true-to-life vision of the process.
Let us see how the teachers use it. After assigning the book and the students have read it, and all are in one-page of reference, the teacher interrogates with it the structure of the courts, civil procedure, professional identity issues, and the alternative dispute resolution mechanism. Reading through the book, they come to see the different writing techniques and styles that are used for different audience. They easily can sport the style used by the writer of the book to communicate to the general public, and why that same style must change when doing brief writing, client’s letter, etc. even in that story. So, non-fictional account of a real case provides the opportunity to teach about the writer’s voice and audience. For example, reading of how the Sabias were initially grateful to medical team and how all of that changed after they attended a support group of parents of a disabled child, embroiled in a messy litigation with Dr. Humes who urged to consult their lawyers. This was two and a half years after the birth of Little Tony. So, the first question was whether their suit is time-barred by limitation statute. This provides the first assignment to the students. They research and write a one-or two- paragraph memorandum about whether the Sabias’ action is time-barred, and if not, how long the law firm representing the Sabias had to file the case. The students simply had to find a statute, read and interpret it, and report their findings in writing. After this, some complexity is added to the skills class. An imaginary character is introduced. She attends the same support group as Mrs Sabia. A newspaper article alerts her to the possibility that her child’s disability is related to certain medication prescribed for her during her pregnancy, but in her case, the child is already four years old. The time bar is three years. So, the students are given some cases to read as research to help them see if the suit can still be sustained under certain exceptions. Their answers are to be communicated to a fictional senior law partner in a firm representing the child. A third assignment is laced on the book. It requires the rudiments of legal research and writing, how we used the book both to teach discrete topics and as a source of legal research and writing assignments ). For other examples of the use of Damages as a legal text with comparisons to other legal narratives and writing exercises, see Beth B. Cohen, ‘Helping Students Develop a More Humanistic Philosophy of Lawyering’ (2007) 12 J. Legal Writing 141; Melody Richardson Daily et al., ‘Damages: Using a Case Study to Teach Law, Lawyering, and Dispute Resolution’ (2004) 1 J. Dis. Res. 356.
Page | 12 AJLHR 3 (1) 2019 students to address the issue of whether the Sabias’ suit is timeous even though instituted more than two years after the birth of their baby. This is complex for them because the ‘discovery rule’ of the State of Connecticut statute of limitation and case law provides a good interpretation of the rule. So, the written assignment of the students teaches them analogical and deductive reasoning.
Since the book contains excerpts of the Sabias’ deposition in which they testified about how their faith in their doctors was transformed from trust to medical malpractice, students are asked to derive the facts from those depositions. This teaches them facts-gathering, which they put together to construct their arguments and legal theories. Importantly, the weariness over the Sabias’ case provided the writing teachers with teaching moments. They asked their students to remember that most litigation lasts years, rather than a semester. That way they are reminded that when they enter the profession, they will not only have to write motions and memos about clients; they will have to meet with them and answer their phone calls as well. In other words, in addition to legal research and writing, new lawyers must learn patience and fortitude. Damages portrays the adversarial system in full swing. For instance, when the respective attorneys searched for experts, they did not search for expert testimony about what really happened; rather, they searched for experts who could assign the blame where it was most advantageous for their clients. So, navigating writing through the book leaves the students with both the research and writing skills they need for their new profession and a more accurate picture of the real world of the practicing lawyer.
6. Pitfalls to Watch Out For The incorporation of social justice themes into the classroom across the curriculum carries with it many benefits. It teaches our students that the world is complex and varied, not generic. If teachers do not teach justice perspective, the students will form their own pictures of what the real world is. Such pictures may reflect the dominant middle-class posture or law or the students’ own experiences and prejudices. Caution must however be exercised in teaching social justice. The teacher must consider what his or her ultimate goal is: whether to influence students’ development as people, lawyers, or both, and to what degree the teacher’s own social justice agenda might or should influence the agenda set for the class. The teacher who decides to use social justice issues in his or her classroom also faces several other related choices. Choosing to use social justice issues may require the teacher to think about the type of atmosphere that exists in the classroom. Considerations include the degree to which tolerance of differing views is emphasized, whether the class is deliberately inclusive and encouraging for those not members of majority groups, and the teacher’s level of comfort with minority viewpoints. Other issues involves whether the teacher should reveal his or her point of view on a social issue, and to what degree a teacher should advocate a particular viewpoint. Even among those who are committed already to using social justice issues, opinions vary widely. Some feel that the teacher’s personal opinions belong in the classroom, and that all law teachers have a duty to instil socially responsible values in their students. Others believe just as strongly that a teacher’s personal opinions have no place in the classroom. Whatever position is taken, curriculum designers and
Page | 13 EMIRI, OPADERE & MUSA: Teaching Social Justice across Law Curriculum in Recharting Legal Professionalism in Nigeria teachers should give attention to two main concerns. First is the pedagogy. Both teaching and learning through narratives and writing are not easy tasks. The teacher must be sufficiently introspective to design the stories and writing exercises in such a way that the social justice perspective is not lost in the explanation of the legal rule. For some students, legal writing as a new skill may be more tasking than legal analysis. So, the teacher should not incorporate social justice perspective in a manner that distracts students, and impedes the learning process. The second concern centres on the well-being of the students. If the social justice perspective involves characteristics students themselves may have, those students could feel spotlighted. For example, a gay student may feel sport lighted or pressured to lead discussion on issues about adoption by homosexuals. It is also possible for a student who holds an opinion on a social justice issue perceived as unpopular to feel shamed, silenced or spotlighted by the discussion. So, teachers must recognise human subtleties and steer social justice components in dignifying ways in the curriculum. The teacher should avoid controversial topics with averse fallout effects.
7. Conclusion Ultimately, however, many teachers choose to deal with social justice issues just because it makes good sense. While all students will not be dealing with cutting-edge issues in their law practices, all will be practicing in an increasingly diverse world. All students will be called upon to work with and for others from varying backgrounds. The more law teachers use aspects of this reality in the classroom, the better prepared the students will be to practice law in the real world. By telling stories and assigning students writing exercises on reflective essays on their thoughts about the subject, teachers can help teach social justice across the curriculum which will prepare them to practice law in a world where diversity is an ever-present reality, and social justice remains an elusive goal.
Page | 14 AJLHR 3 (1) 2019
DOCTORS’ CIVIL LIABILITIES ARISING FROM NEGLIGENT PRENATAL GENETIC COUNSELING: A RWANDAN PERSPECTIVE*
Abstract Advances in medical technology regarding so-called ‘genetic counseling’ have placed a corresponding responsibility on medical professionals. In this regard, a number of cases have come before the courts over the past years in several countries, involving allegations of medical negligence in respect of genetic counseling which resulted in births of children who were seriously handicapped. These cases gave rise to the development of claims against physicians on account of ‘wrongful birth’ and ‘wrongful life’. This article defines the concepts of wrongful birth and wrongful life, explores the various rationales and arguments that have been put forward against or in favour of these claims and analyses their viability under Rwandan law.
Keywords: Doctor, Civil Liabilities, Negligence, Prenatal Genetic Counseling, Rwanda
1. Introduction Advances in medical technology regarding so-called ‘genetic counseling’ have placed a corresponding responsibility on medical professionals. Failure to advise parents of the risks of conceiving or bearing a defective child effectively precludes their exercise of choice in the matter and may render the doctor liable for the injury (prejudice) suffered by the parents and the child itself. In this regard, a number of cases have come before the courts over the past years in several countries, involving allegations of medical negligence in respect of genetic counseling which resulted in births of children who were seriously handicapped. These cases gave rise to the development of claims against physicians on account of ‘wrongful birth’ and ‘wrongful life’1. A claim for wrongful life, like that of wrongful birth, rests on the premise that the child’s mother would have avoided the pregnancy or procured an abortion had the information regarding the child’s defective condition been available to her. Therefore in addition to proving all the elements founding delictual liability, a claimant would have to bear the burden of proving that the child’s mother would indeed have opted for abortion, given the choice. This article explores the various rationales and arguments that have been put forward against or in favor of these claims and analyzes their viability under Rwandan law.
* Evode KAYITANA, LLB, PGD, LLM, LLD; Lecturer in law at the University of Rwanda; Advocate of the Supreme Court of Rwanda. Email: [email protected] 1P. Carstens & D. Pearman, Foundational Principles of South African Medical Law, 2007, p. 725.
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2. The Various Rationales against or In Favour of Wrongful Birth and Wrongful Life Claims
Wrongful birth
Definition A wrongful birth claim is a claim brought by the parents of a child born with severe defects against a physician who fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, thereby precluding an informed decision as to whether to have the (disabled) child2. Thus, when parents bring an action against a physician for negligent genetic counselling, claiming that they would not have conceived a child if they had been given adequate information, or when parents bring an action against an obstetrician for failing to diagnose a condition of the foetus in utero of the mother during pregnancy, claiming that they would have aborted the foetus if they had been properly informed of the risks, they are making ‘wrongful birth’ claims.3The issue in wrongful- birth claim is not that the child itself is unwanted (like in the action for wrongful pregnancy which results from a failed sterilization or abortion where no further child is wanted at all), but rather that a defective child is unwanted. Wrongful birth plaintiffs typically desire a child from the outset4; they just complain that they did not want a disabled child. On the contrary, in ‘wrongful pregnancy’ claims, parents did not want a child at all, whether healthy or defective. In other words, liability for wrongful birth ensures where at the beginning the parents wanted to have a child, but the attendant physician fails to inform parents properly of the risk of producing a defective child, thereby depriving them of the right to make an informed decision regarding conception or abortion; that is negligent genetic counselling5. The various rationales that have been put forward against or in support of ‘‘wrongful birth’ claims are discussed below.
Public policy bars recovery Initially, courts seem to have been reluctant to recognise wrongful birth claims. In one American case, Gleitman v Gosgrove6, the infant had been born with congenital Rubella syndrome, had been born deaf, blind and had grown up mentally retarded as a result, following the doctor’s negligent failure to inform the parents of the high probability of such defects occurring as a result of the mother’s contraction of rubella in early pregnancy. The court ruled rejected the parents’ claim for damages against the doctor on the ground that ‘substantial policy reasons prevent this court from allowing tort
2 B. R. Furrow et al, Health Law: Cases, materials and problems, 2 ed, (1991), p. 942. 3 Idem, pp. 780-781. 4 Furrow et al, Op.cit, p. 946. 5 F. L. Pearson, ‘Liability for so-called Wrongful Pregnancy, Wrongful Birth and Wrongful Life’ (1997) SALJ, p. 95. 6 49 NJ 22, 227 A 2d 689, 22 ALR 3d 1411 (Supreme Court of New Jersey 1967). Page | 16
AJLHR 3 (1) 2019 damages for the denial of the opportunity to take an embryonic life’. It must be born in mind, however, that this refusal of the action occurred within the context of anti-abortion laws (hence the ‘public policy’ argument) operational at that time in the USA and in many other countries across the world. Later the outlook changed and courts recognized that victims in cases of wrongful birth cases had a cognizable cause of action in law.
Recognition and recovery Parallel to the recognition of women’s right to abortion and advances in genetics, was the recognition of wrongful birth claims. In Naccash v Burger7, an American court recognized the parents’ cause of action after the blood sample confirming that the father was carrier of Tay-Sachs disease was negligently misplaced, indicating that he was not a carrier, and the child was subsequently born with the disease. In another American case, Phillips v United States8, the court again upheld the wrongful- birth action brought by the parents of a child born with Down’s syndrome following the physicians negligent failure to advise the mother (while noting a positive history of Down’s syndrome in her family) of the possible risk to her child. The plaintiff alleged that the defendant doctor had deprived them of their election to abort and the court found in their favour, noting that the overwhelming majority of the more recent cases recognize the validity of such an action. In Friedman v Glickson9, a South African case, the facts were that the infant’s mother consulted the defendant, a specialist gynaecologist, to advise her whether there was a risk that she may have been pregnant with a potentially abnormal and/or disabled infant, on the understanding that she wished to terminate her pregnancy if there was any risk greater than the normal risks of the infant being born in an abnormal and/or disabled condition. The plaintiff and the defendant concluded an agreement in terms of which he would provide such advice as was necessary for her to make an informed choice whether to terminate the pregnancy or not. The defendant carried certain tests and advised her that there was no greater risk than the normal risk of having an abnormal or disabled child and that it was quite safe for her to proceed to full term. His advice was wrong, however, and the child was born disabled. The mother averred that the defendant acted negligently in a number of respects and that if she had received the correct advice she would have terminated the pregnancy. She based her claim on a breach of the agreement which was concluded and a breach of the defendant’s duty of care. She claimed in her personal capacity for the expenses of maintaining and rearing the child (Alexandra), as well as future medical, hospital and other special expenses.The defendant excepted to these claims on the grounds that it would be against public policy to enforce the contract entered into between Mrs. F and himself, ‘because it would encourage abortion and thus be inimical to the right to life enshrined in the Constitution of the Republic of South Africa, as well as to the generally recognised sanctity accorded by society to life and the process by which it is brought about’. The judge rejected defendant’s arguments, though, and held that the plaintiff was entitled to recover damages in this case. He pointed out that defendant’s arguments were contrary to Abortion and Sterilisation Act 2 of 1975, then in force, which allowed abortion inter alia in cases where there was a serious risk that the child to be
7 290 SE 2d 825 (Supreme Court of Virginia 1982). 8 508 F Supp 544 (United States District Court, South Carolina 1981). 9 Friedman v Glickson 1996 (1) SA 1134 (W).
Page | 17 KAYITANA: Doctors’ Civil Liabilities Arising from Negligent Prenatal Genetic Counseling: A Rwandan Perspective born would be irreparably seriously handicapped, either physically or mentally. Judge Goldblatt went on to say: Thus the legislature has recognized as do most reasonable people, that cases exist where it is in the interests of the parents, family and possibly society that it is better not to allow a foetus to develop into a seriously defective person causing serious financial and emotional problems to those who are responsible for such person’s maintenance and well-being. However, it must be stressed that the election to proceed to with or terminate the pregnancy in these circumstances rests solely with the mother who bears the moral and emotional burden of making such election.
The judge thus held that the contract entered into between Mrs. F and Dr. G was ‘sensible, moral and in accordance with modern medical practice’. The doctor’s further argument that there could be no claim against him since Alexandra’s condition had not been caused by an act or omission on his part but was a congenital defect arising at the time of conception, could not stand because, the judge held, the damage the woman had suffered by giving birth to a disabled child were clearly caused by the fault of the doctor.
Wrongful life
Definition A wrongful life claim is brought not by the parents of a child born with defects, but by or on behalf of the child itself. The child contends that the defendant physician negligently failed to inform the child’s parents of the risk of bearing a defective infant, and hence prevented the parents from choosing to avoid the child’s birth10. In short, the child contends that it would have been better for him/her not to have been born at all rather than having been born with severe disabilities. The theory of wrongful life cause of action presents a crucial problem: the question of injury. In order to recognize the child’s claim, a court must determine that it would have been better for the child if she had not been born at all rather than having been born with severe congenital disabilities. There are three approaches to this question: the first approach says that courts simply have no competence to answer this question; the second answers the question in the negative and the third approach gives a positive answer to the question.
A court has no competence to answer the question Some courts have simply asserted no competence to answer the question whether it would have been better for the child if she had not been born at all rather than having been born with severe congenital disabilities, and thus rejected wrongful life claims. For example, in Becker v. Schwartz11, an American court said: Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in
10 Furrow et al, Op.cit, p. 942. 11 Becker v. Schwartz, 46 N.Y.2d 401, 411, 386 N.E.2d 807, 812, 413 N.Y.S.2d 895, 900 (1978) Page | 18
AJLHR 3 (1) 2019
view of the very nearly uniform high value which the law and mankind have placed on human life, rather than its absence. In Gleitman v Cosgove12, another American court also held that ‘the plaintiff would have us to measure the difference between his life with defects against the utter void of non-existence, but it is impossible to make such determination…’.The same view was taken in Edwards v Blomeley13 by the New South Wales Supreme Court in Australia, which held that if the viability of a wrongful life claim had to be considered under Australian law it would be impossible to determine that ‘damage’ had been suffered by the child, even though born seriously disabled, and it would also be impossible to asses compensatory damages. The court held that the impossibility of determining ‘damage’ would itself compel rejection of the claim, as would be impossible of assessing compensatory measures.
The negative approach Other courts, instead of declining to entertain the claim, have rejected wrongful life claims on the view that any life, even seriously impaired, is more valuable than no life at all. In Friedman v Glickson14, a South African case, the judge held that no cause of action exists with regard to a wrongful life claim. He held the that ‘it would be contrary to public policy to find that it would be better for a party not to have the unquantifiable blessing of life rather than to have such life, albeit in a marred way’15. In Berman v Allen16, an American court also rejected the mongloid child’s claim on the basis that life is always more precious than non-life.
The positive approach The first decision maintaining a wrongful life action in the USA was that of Curlender v. Bio-Science Laboratories.17 There, the minor plaintiff’s action against the laboratory was based on the negligent genetic testing of its parents, which led to the child being subsequently born with Tay-Sachs disease. The Court did not find it necessary to compare a defective life with that of non-existence, but held that the defective child is entitled to damages for the pain and suffering which are inherent in its existence. The court noted that ‘the reality of the ‘wrongful life’ concept is that such a plaintiff both exists and suffers, due to the negligence of others. It is neither necessary to retreat into meditation on the mysteries of life’. Damages were accordingly awarded for pain and suffering during the limited life span of the child, as well as for any special pecuniary loss resulting from the impaired condition. Moreover, the court acknowledged that establishing a right not to be born could render the parents potentially liable to their defective offspring following their informed parental choice not to abort.
12 49 NJ 22, 227 A 2 d 689, 22 ALR 3D 1411 (Supreme Court of New Jersey 1969). 13 (2002) NSWSC 460,. 14 Cited above. 15P. Van den Heever, ‘Prenatal Medical Negligence in South African Law: Wrongful Life (the Right not to be Born) and the Non-Existence Paradox’ (2006) THRHR 188- 200 16 57 App Div 2d 73, 394 NYS 2d 933 5Supreme Court of New York 1977). 17 106 Cal App 3d 811, 165 cal Reptr 477 (Call Dist Ct App 1980).
Page | 19 KAYITANA: Doctors’ Civil Liabilities Arising from Negligent Prenatal Genetic Counseling: A Rwandan Perspective
This disturbing possibility prompted a statutory prohibition18 of wrongful life actions against parents (but not against others)19. In, Saul Shmuel & Nvadra Katz v Dr R Zietzoff, Beilinso Hospital,20 an Israeli case, the court also found that the infant plaintiff had a cause of action and held that damage had been sustained as defined in section 2 of the Israel Tort Ordinance. The court thus in effect compared a defective life with no life and concluded that there were cases where no life is preferable to a retarded life21.
3. The Viability of Wrongful Birth and Wrongful Life Cases under Rwandan Law As far as Rwandan law is concerned, it seems that a ‘wrongful birth’ claim may succeed. This would be the case, however, only when the mother is asserting that she would have avoided the pregnancy; not that she would have procured an abortion, because in Rwanda abortion is illegal if it is performed on the basis that the child to be born would be seriously handicapped. Abortion can only be legally performed when:22 1º the pregnant person is a child; 2º the person having abortion had become pregnant as a result of rape; 3º the person having abortion had become pregnant after being subjected to a forced marriage; 4º the person having abortion had become pregnant as a result of incest up to the second degree; 5º the pregnancy puts at risk the health of the pregnant person or of the foetus.
Unless the judge broadens the scope of ‘the pregnancy putting at risk the health of the foetus’ under item number 5º above, to include abortion because the foetus would develop into a seriously handicapped child, it seems that no basis is available wrongful birth claims for parents who would assert that they would have procured an abortion had they been properly advised. As for a parent who is asserting that she would have avoided the pregnancy, it appears that the claim would succeed. A patient in consulting a doctor enters into a contractual relationship with him. Therefore, in accordance with article 64 of Law n° 45/2011 of 25/11/2011 governing contracts,23 which provides that contracts made in accordance with the law are binding between parties, a doctor would be held liable to pay
18 California Civil Code §43.6 (West 1982). 19 Pearson, FL, op.cit, p. 102. 20 Civil Appeal 518/82 540/82, cited by Pearson, FL, Op.cit, p. 104. 21 This view is also shared by Pearson, FL, Op.cit, pp. 104-105. She says, after discussing the judgement of Goldblatt J : ‘With respect, I submit that there may indeed be cases where no life may be preferable, as held in the Israel case, for what kind of quality of life can a human being enjoy in the absence of fundamental self-awareness?’ 22 Art 125(1), Law nº68/2018 of 30/08/2018 determining offences and penalties in general (Official Gazette no Special of 27/09/2018). 23 Official Gazette nº 04bis of 23/01/2012. Page | 20
AJLHR 3 (1) 2019 damages for ‘wrongful birth’ because the contract entered into (to provide genetic advice) was breached. The doctor’s liability may also be founded on principles of delictual liability in accordance with articles 258 and 259 of the Civil Code, Book III. The wrongful conduct would consist in the negligent (art. 258) or intentional (art. 259) failure to advise parents of the risks of conceiving a defective child, thereby precluding their exercise of the choice not to conceive. The elements of fault, damage and causal connection between fault and damage would thus be established. However, it must be emphasized, a wrongful birth claim would succeed only where the parents assert that they would have avoided the pregnancy but not that they would have procured an abortion because such abortion seems to be illegal under article 225(1) of the 2018 Penal Code, as it was in the earlier laws. With regard to wrongful life, the negative approach seems to be the most likely to be adopted. As Goldblatt J rightly held in Friedman v Glickson24, it would be contrary to public policy for courts to hold that it would be better for a party not to have the quantifiable blessing of life rather than to have such life albeit in a marred way. Further to allow such a cause of action would open the door to a disabled child being entitled to sue its parents because they may have for a variety of reasons allowed such child to be born knowing of the risks inherent in such decision. Finally, if the claim were to be based on the argument that had the plaintiff’s parents would have elected to abort had they been adequately informed of the situation, the action would also not succeed because, as noted above, Rwandan law does not allow abortion on this ground.25
4. Conclusion The article defined the concepts of wrongful birth and wrongful life, explored, explored the various rationales and arguments that have been put forward against or in favor of these claims and analyzed their viability under Rwandan law.It was argued that while wrongful birth claims would fit into Rwandan law. It was found, however, that this would be the case, only when the mother is asserting that she would have avoided the pregnancy; not that she would have procured an abortion, because Rwanda law does not allow abortion on the basis that the child to be born would be seriously handicapped. With regard to wrongful life, it was found that these claims would fail because courts would likely find that life, albeit impaired, is always better than no life at all (no damage is suffered when someone is born rather than having not born), but also because the parents would. It was also argued that if the claim were to be based on the argument that had the child’s parents would have chosen to abort had they been adequately informed of the situation, the action would not succeed because Rwandan law does not allow abortion on this ground. One cannot base his claim on a putative right that does not exist in law.
24 Cited above. 25 Art 125(1), Law nº68/2018 of 30/08/2018 determining offences and penalties in general (Official Gazette no Special of 27/09/2018).
Page | 21 AYENI: From Trade Courts to Human Rights Tribunals: Contributions of Sub-Regional Courts to the Protection of Human Rights in Africa FROM TRADE COURTS TO HUMAN RIGHTS TRIBUNALS: CONTRIBUTIONS OF SUB- REGIONAL COURTS TO THE PROTECTION OF HUMAN RIGHTS IN AFRICA
Abstract This article examines the extent of involvement of sub-regional courts in the adjudication of human rights cases in Africa, and whether their involvement in human rights adjudication contributes, or poses a grave danger, to the overall goal of human rights protection on the African continent. Some of the questions asked and answered in the paper include whether sub-regional trade courts, now acting as ‘human rights tribunals’, are best suited for their new duty and to what extent does their new role complement the mandates of the three regional human rights bodies, namely the African Commission on Human and Peoples’ Rights, African Court on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child, that have primary responsibility for the protection and adjudication of human rights matters at the continental level in Africa? The paper concludes that even though the jurisdiction of sub-regional courts to adjudicate on human rights definitely raise some unresolved issues, sub-regional courts will nonetheless make notable contributions to the development of human rights jurisprudence in Africa.
Keywords: Sub-regional Courts, Human Rights Tribunals, Africa
1. Introduction At the end of colonial rule in the 1960s, African states were largely unstable and fragile.1 Due to political instability and economic fragility, states in Africa were advised mainly by Western democracies and development partners to integrate economically and politically in order to achieve prosperity.2 Political leaders on the continent clearly had no choice but to integrate if they were to „undo‟ the balkanization of Africa brought about as a result of colonialism.3 While regional integration at the continental level could not be realised rapidly due to several reasons including sovereignty concerns, uneven distribution of integration benefits, and lack of political will, geographically proximate states had started coming together to create larger markets and economic consolidation through regional economic communities.4 Regionalism is a form of cooperation among states that are
* Victor Oluwasina AYENI, PhD, Lecturer, Adekunle Ajasin University, Akungba-Akoko, Ondo State. Email: [email protected]/ Phone: +2347066711568 1 LN Murungi and J Gallinetti, „The Role of Sub-Regional Courts in the African Human Rights System‟ (2010) 13 SUR-International Journal on Human Rights 119, 120. 2 As above. 3 S Sako, „Challenges Facing Africa‟s Regional Economic Communities in Capacity Building‟, The African Capacity Building Foundation (ACBF) Occasional Paper No 5 2006,
Page | 22 AJLHR 3 (1) 2019 geographically proximate for the pursuit of mutual benefits.5 The process of regional integration may take various forms but usually starts with preferential trading arrangements, custom union, common market, economic union and then gradual political integration.6 It must be noted however that no particular sequence is applicable to all RECs in Africa. While RECs usually do not at first consider regional protection of human rights as a goal, states generally agree across RECs in Africa that one of the fundamental principles for achieving the set goals of RECs is observance of the rule of law, good governance and respect for human rights.7 As states seek to promote their trade interests, certain principles of human rights become imperative. Even a REC comprising the most authoritarian states will require a minimum guarantee of political stability, free movement of people and goods, freedom of association and freedom of residence.
At the end 2018, Africa comprised at least 14 regional economic communities (RECs), eight of which are recognized by the AU as building blocks of economic integration in Africa.8 The eight recognised bodies usually referred to as RECs in Africa are: the Arab Maghreb Union (AMU), Community of Sahel-Saharan States (CENSAD), Economic Community of West African States (ECOWAS), Economic Community of Central African States (ECCAS), East African Community (EAC), Inter- governmental Authority on Development (IGAD), Common Market for Eastern and Southern Africa (COMESA), and the Southern African Development Community (SADC).9 The legal instruments establishing the various RECs usually provide for a permanent judicial body (also referred to in this paper as „sub-regional court‟) responsible for adjudication of disputes; and in most cases the adjudicatory procedure is limited to disputes between states.
This paper takes a look at three of such adjudicatory mechanisms, namely the ECOWAS Community Court of Justice (ECCJ), East African Court of Justice (EACJ) and the Tribunal of the Southern African Development Commission (SADC Tribunal). The three sub-regional courts are similar in some ways. Each of them was created by a regional economic community that has the primary mandate of facilitating trade and political integration amongst member states.
5 See M Malan, “The OAU and African Sub-Regional Organisations: A Closer Look at the „Peace Pyramid‟” Institute for Security Studies Occasional Paper No 36 (1999). 6 F Viljoen, International Human Rights Law in Africa (2nd Edn, Oxford: Oxford University Press, 2012) p. 472. See also Office of the Special Adviser for Africa(OSAA), „The Regional Economic Communities (RECs) of the African Union‟
Page | 23 AYENI: From Trade Courts to Human Rights Tribunals: Contributions of Sub-Regional Courts to the Protection of Human Rights in Africa 2. Main Sub-Regional Courts in Africa Traditionally, the three bodies that have primary responsibility for the protection of human rights at the regional level in Africa are: the African Commission,10 the African Court11 and the African Children‟s Rights Committee.12 However due to issues of accessibility and proximity, sub-regional courts traditional set up for settling trade disputes are gradually becoming platforms for the protection of human rights. Below is an overview of the three main sub-regional courts that have adjudicated on significant human rights or human rights related cases and their contributions to the development of human rights jurisprudence in Africa.
ECOWAS Community Court of Justice (ECCJ) The Economic Community of West African States (ECOWAS) was formed in 1975.13 The objective of the Community is to promote regional cooperation and economic development „for the purpose of raising the standard of living of its people‟.14 The treaty established a number of institutions including a judicial body referred to simply as „the Tribunal of the Community‟.15 The Tribunal was charged with the responsibility of settling disputes and for ensuring just and lawful application of the provisions of the founding treaty.16 The 1975 ECOWAS Treaty transferred to the Authority of Heads of State and Government of ECOWAS the responsibility of adopting a protocol to prescribe the composition and competence of the Tribunal.17 The Protocol was adopted in 1991.18 The 1991 Protocol established the Community Court of Justice as a principal organ of ECOWAS, thus changing the name of the court from „Tribunal of the Community‟.19
Jurisdiction The jurisdiction of the Court under the 1991 Protocol was two-fold.20 Firstly, the Court had jurisdiction over interpretation and application of the ECOWAS Treaty and other legal instruments
10 See article 45, African Charter on Human and Peoples‟ Rights 1981. 11 See Protocol to the African Charter on Human and Peoples‟ Rights on the Establishment of the African Court on Human and Peoples‟ Rights 1998. 12 See African Charter on the Rights and Welfare of the Child 1990. 13 See Treaty of the Economic Community of West African States 1975 (1975 ECOWAS Treaty). The treaty was adopted on 28 May 1975 and entered into force on 20 June 1975. 14 See 1975 ECOWAS Treaty, art 2. 15 See 1975 ECOWAS Treaty, art 4(1). 16 See 1975 ECOWAS Treaty, art 11(1). 17 1975 ECOWAS Treaty, art 11(2). 18 See Protocol (A/P.I/7/91) on the Community Court of Justice. 19 See 1991 Protocol on the Community Court of Justice, art 2; 1993 revised ECOWAS Treaty, art 15. 20 See KJ Alter, LR Helfer and JR McAllister, „A new international human rights court for West Africa: The ECOWAS Community Court of Justice‟ (2013) 107 American Journal of International Law p. 746.
Page | 24 AJLHR 3 (1) 2019 adopted by ECOWAS including the Protocol establishing the Court.21 Secondly, the Court had jurisdiction over proceedings commenced by member states on behalf of their nationals against other member states or an ECOWAS institution.22 In order to activate the second leg of the Court‟s jurisdiction, it must be shown that attempts at amicable settlement have been made and failed.23 The Court may also issue advisory opinion on any matter relating to the ECOWAS Treaty. However, the 1991 Protocol did not grant private individuals access to the Court. In response to developments which have taken place at the international scene, the Authority of Heads of State and Government of ECOWAS on 30 May 1990 constituted a Committee of Eminent Persons to come up with a proposal for the review of the 1975 ECOWAS Treaty.24 In its report, the Committee underscored the importance of access to the Court for private litigants.25 The report of the Committee formed the basis of the 1993 Revised ECOWAS Treaty.26 Under the revised Treaty, the ECOWAS acquired more responsibilities for security, good governance and human rights.27 The Revised Treaty rededicated the Community to economic integration, introduced far reaching structural changes, created new organs such as the ECOWAS Community Parliament and strengthened existing organs.28 One of the most significant additions following the 1993 revised Treaty is the proposal which increased the participation of civil society in the activities of the Community.29 The 1993 revised ECOWAS Treaty however jettisoned the proposal for individual access to the ECOWAS Court.
Ultimately, the Protocol expanding the jurisdiction of the Court was adopted by the ECOWAS Authority in 2005 with little or no opposition from government representatives. The Protocol contains provisions that limits the powers of states on many grounds. Why did state officials not raise their voice in opposition even if they would fail eventually? Following series of interviews with stakeholders in ECOWAS member states, Alter, Helfer and McAllister, argued that the involvement of the ECOWAS Secretariat was critical. States trusted the ECOWAS Secretariat, and the NGO lobby
21 1991 ECOWAS Court Protocol, art 9(1). 22 1991 ECOWAS Court Protocol, art 9(2). 23 As above. 24 See 1993 Revised ECOWAS Treaty, Preamble; ECOWAS Authority of Heads of State and Government Decision A/DEC.10/5/90 of 30 May 1990. See also Final report of the Committee of Eminent Persons, chap v. 25 Final Report of the Committee of Eminent Persons for the Review of the ECOWAS Treaty (16 June 1992), quoted in KJ Alter, LR Helfer and JR McAllister (n. 20) p. 741. 26 The 1993 Revised ECOWAS Treaty was adopted on 24 July 1993, and entered into force on 23 August 1995. 27 KJ Alter, LR Helfer and JR McAllister (n. 20) p. 744. 28 See KJ Alter, LR Helfer and JR McAllister (n. 20) p. 743. ECOWAS Member states had in 1978 and 1981 respectively adopted the Protocol on Non-Aggression and the Protocol relating to Mutual Defence Assistance. The Liberian crisis led to the formation of the Economic Community of West African States Monitoring Group (ECOMOG). Although a monitoring outfit, ECOMOG contributed significantly in quashing unrests and civil wars in Sierra Leone, Guinea Bissau, and Côte d‟Ivoire. 29 KJ Alter, LR Helfer and JR McAllister (n. 20) p.745.
Page | 25 AYENI: From Trade Courts to Human Rights Tribunals: Contributions of Sub-Regional Courts to the Protection of Human Rights in Africa group partnered with the Secretariat, activist judges of the ECOWAS Court and the West African Bar Association to build an influential civil society coalition in support of the campaign to grant explicit human rights jurisdiction to the ECOWAS Court. The group also met with heads of state and top-level officials in several countries to get their „buy in‟ into the campaign.30 Under article 3 of the 2005 Supplementary Protocol, the Court is competent to receive and determine cases involving the interpretation and application of the ECOWAS Treaty and other ECOWAS instruments including non-binding soft law standards.31 The jurisdiction of the Court may also be invoked where a member state fails to honour its obligation under the ECOWAS Treaty or other Community laws. This implies the possibility of inter-state human rights complaints. Any matter involving the Community, or its staff is also within the Court‟s competence. In addition to these, the Court has jurisdiction over sundry matters such as action for damages against officials or institutions of the Community for actions taken in official capacity.32 Article 9(4) of the 1991 Protocol, as amended by article 3 of the 2005 Supplementary Protocol, provides: „the Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.‟ While article 3 is the most fundamental and transformative provision of the 2005 Supplementary Protocol, the provision arguably retains the wider jurisdiction on non-human rights cases. Section 4 of the Supplementary Protocol lists the categories of persons that have access to the Court to include: member states, specified ECOWAS organs, individuals and corporate bodies, staff of the Community or the courts of member states.33 Some distinctive features of the Court‟s jurisdiction under the 2005 Supplementary Protocol include: direct access for human rights litigants, an open-ended catalogue of human rights and human rights instruments, as well as the absence of a requirement for exhaustion of domestic remedies.34
States’ obligation to comply with judgments of the ECCJ Judgments of the ECCJ are binding on states.35 The process of execution of ECCJ judgments begins when the Registrar of the Court submits a writ of execution to a relevant state. In terms of the 2005 Supplementary Protocol, states have an obligation to receive the writ of execution and give effect to them according to the rules of procedure for enforcement of judgments in place in their respective countries.36 Adjolohoun has argued that the reference to domestic rules of procedure entails no more than for state officials to verify that the writ of execution is from the registry of the ECCJ.37 It is also
30 KJ Alter, LR Helfer and JR McAllister (n. 20) p. 752. 31 See 1991 Protocol, art 9 as amended by art 3 of the 2005 Supplementary Protocol. 32 See 1991 Protocol, art 9 as amended by art 3 of the 2005 Supplementary Protocol. 33 See 1991 Protocol (as amended), art 10; 2005 Supplementary Protocol, art 4. 34 KJ Alter, LR Helfer and JR McAllister (n. 20) p.755. 35 1999 ECOWAS Court Protocol, art 24 as amended by 2005 ECOWAS Supplementary Protocol, art 6. 36 1999 ECOWAS Court Protocol, art 24 as amended by 2005 ECOWAS Supplementary Protocol, art 6. 37 HS Adjolohoun „Giving effect to the human rights jurisprudence of the Court of Justice of the Economic Community of West African states: compliance and influence‟ unpublished LLD thesis, University of Pretoria, 2013, p.55.
Page | 26 AJLHR 3 (1) 2019 not clear whether only states that are parties to the case have the obligation to receive and register the writ of execution from the ECCJ or if states that are non-parties to the case should also do so. A purposive interpretation of article 6 of the 2005 Supplementary Protocol supports the latter view. States are required to appoint competent national authorities responsible for receiving and enforcing a writ of execution from the Court.38 As at July 2017, only four countries – Nigeria, Guinea Bissau, Mali and Burkina Faso – had designated the relevant national authority.39 The other 11 countries are at various levels of compliance; the national process of designation is ongoing. In 2012, the Authority of Heads of State and Government adopted the Supplementary Act A/SP.13/02/12 on sanctions against member states that fail to honour their obligations to ECOWAS.40 Article 2 of the 2012 Supplementary Act defined member states‟ obligations to ECOWAS to include the obligation to „respect and protect human rights‟41 The Act further states that the judgments of the ECOWAS Community Court of Justice are binding on member states, ECOWAS institutions as well as individuals and corporate bodies within ECOWAS.42 In terms of the 2012 Supplementary Act, non- compliance with decisions of the ECCJ constitutes failure to adhere to obligations states owe the Community. The Act enumerates detailed sanctions, political and judicial, which may be imposed on a non-complying state. Whenever a state fails to honour its obligations under any of law of the Community, the ECCJ may impose financial and other sanctions against the defaulting member state.43 Political sanction which may be imposed on states that fail to comply with the judgments of the ECCJ include: suspension from participation in Community activities, freezing of financial assets of the state, arms embargo, travel ban, and suspension of the member state concerned from all ECOWAS decision-making organs. The sanctions are to be imposed in increasing order of severity.44 Sanctions imposed on a member state as a result of non-compliance with Community obligations are not appealable to the ECCJ or any other court or tribunal.45 The records of the ECCJ indicate that 21 of the total cases finalised by the Court have been fully complied with while 34 other cases are at various stages of implementation.46
38 1999 ECOWAS Court Protocol, art 24 as amended by 2005 ECOWAS Supplementary Protocol, art 6. 39„Forty-six cases filed before the ECOWAS Court during the last legal year‟ Page | 27 AYENI: From Trade Courts to Human Rights Tribunals: Contributions of Sub-Regional Courts to the Protection of Human Rights in Africa East African Court of Justice (EACJ) The East African Community (EAC) was first established in 1967.47 The Community was dissolved in 1977 and later re-established in 1999 with the adoption a new founding treaty.48 The Treaty for the Establishment of the EAC (EAC Treaty) was signed on 30 November 1999 and entered into force on 7 July 2000. Kenya, Tanzania and Uganda are the founding member states of the EAC. Membership of the Community is open to any geographically proximate state that expresses willingness to abide by EAC‟s membership conditions as stipulated in article 3 of the EAC Treaty. Burundi and Rwanda acceded to the Treaty and have since 1 July 2007 become full members of the EAC.49 The main aim of the EAC whose headquarters is in Arusha, Tanzania, is to deepen cooperation among states in the East African sub-region in a vast number of areas including trade, culture, research, technology, security and legal affairs for the mutual benefits of the participating states.50 One of the seven principal organs established under the 1999 EAC Treaty is the East African Court of Justice (EACJ).51 The Court was formally inaugurated at Arusha on 30 November 2001.52 The EACJ was established as a judicial body in terms of the EAC Treaty and its primary role is to ensure „adherence to law in the interpretation and application of and compliance with the Treaty.‟53 The Court consists of two chambers: First Instance Division and Appellate Division.54 The First Instance Division has original jurisdiction on matters to which the Court has jurisdiction subject to a right of appeal to the Appellate Division.55 At inception, the Court composed of six Judges, two from each of the three founding state holds-89-sessions-delivers-34-judgements-20152016-legal-year.html> accessed on 1 December 2018. The Court, however, does not provide a list of these cases that have been complied with. 47 Regional integration in East Africa dates back to the colonial era. Kenya, Uganda and later Tanzania have formed a Customs Union in 1917. This was followed by the East African High Commission in 1948 and the East African Common Services Organisation in 1961. See A Possi, „The East African Court of Justice: Towards Effective Protection of Human Rights in the East African Community‟ unpublished LLD thesis, University of Pretoria, 2014, p.27. 48 See Treaty for the Establishment of the East African Community (1999 EAC Treaty), art 1. 49 East African Community, „Overview of the EAC‟ Page | 28 AJLHR 3 (1) 2019 parties.56 With the accession of Rwanda and Burundi to the EAC Treaty in 2007, the membership of the Court was expanded to ten; five of which serve in each division of the Court. The EAC Treaty allows for a maximum of 15 Judges appointed by the „Summit‟ from among persons recommended by state parties referred to as „Partner States‟ in the EAC Treaty.57 Not more than ten of the Judges serve at the First Instance Division while at least five serve in the Appellate Division.58 As at the time of writing, only five judges have been appointed to the First Instance Division. Jurisdiction The primary jurisdiction of the EACJ is to interpret and apply the EAC Treaty.59 In addition to ensuring adherence to law in the interpretation and application of the EAC Treaty, the EACJ may exercise such other original, appellate or supervisory jurisdiction as may be conferred on it by the Council of Ministers.60 For this purpose, the EAC Treaty enjoins state parties to conclude a Protocol to operationalise the extended jurisdiction.61 Ojeinde argues that the original intention of the drafters of the EAC Treaty was to develop the jurisdiction of the EACJ progressively, commencing with interpretation and application of the Treaty, and then to other jurisdictions when the relevant instruments have been adopted.62 The argument above cannot be faulted because the Treaty states clearly „the Court shall initially have jurisdiction over the interpretation and application of this Treaty‟.63 However, the above argument misses a very important point. While the EACJ may not qualify as a fully-fledged human right court with competence to receive human rights complaints, it has jurisdiction where actions of the state parties contravene the principles and objectives of the Community. Arguably, the Court has inherent powers to issue redress whenever actions of the Community organs or state parties are inconsistent with agreed principles stipulated in the Treaty. This is not only applicable to human rights but also principles relating to sovereign equality of states, pacific settlement of dispute, and equitable distribution of benefits as enunciated in article 6 of the founding Treaty. In addition to these, the EAC Treaty expressly stipulates that recognition and respect for human rights shall be one of the factors to be considered for admission of new members into the Community.64 One of the „Fundamental Principles‟ of the EAC is „good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human 56 East African Court of Justice, Page | 29 AYENI: From Trade Courts to Human Rights Tribunals: Contributions of Sub-Regional Courts to the Protection of Human Rights in Africa and peoples‟ rights in accordance with the provisions of the African Charter on Human and Peoples‟ Rights.‟65 Interestingly, human rights was not just listed as a principle to be followed; state parties actually „undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.‟66 Thus the human rights mandate of the EACJ derives from articles 6(d) and 7(2) of the EAC Treaty. Despite the clear reference to human rights as a fundamental principle of the EAC in articles 6 and 7 of the EAC Treaty, the EACJ has demonstrated considerable reluctance to rely on the „human rights clause‟ as the basis for adjudicating on human rights related cases. Rather, the Court has been more inclined towards the „rule of law, democracy and good governance‟ clause. This is perhaps due to the specific restriction placed on the Court‟s human rights jurisdiction under article 27(2) of the EAC Treaty.67 As discussed earlier, this provision makes the exercise of „human rights jurisdiction‟ conditional on the adoption of a supplementary protocol. Article 27(2) may be viewed in two ways. In a broad sense, it could imply that the Court is forbidden from entertaining any kind of matter that contains allegations of human rights violations. In a narrow and restrictive sense, it could indicate that the Court could adjudicate on any matter alleging a breach of states‟ obligations under EAC Treaty but may not develop systematic rules of procedure for handling human rights petitions until a protocol has been adopted for that purpose. The practice of the Court shows that its leans towards the restrictive interpretation to article 27(2). In several cases, the EACJ has held that it will not abdicate its duty of applying and interpreting the EAC Treaty just because there are elements of human rights violation in a matter referred to it.68 In other words, the Court can hardly escape dealing with human rights.69 The EAC Treaty empowers state parties, the Secretary General of the EAC and all legal and natural persons to refer to the Court for determination matters relating to the „legality of any act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.‟70 In the case of a reference by individuals, the reference must be made within two months of the action or omission complained of.71 This limitation period was imposed following a failed attempt by the government of Kenya to abolish the EACJ. The proposal to abolish the EACJ was the 65 1999 EAC Treaty, art 6(d). 66 1999 EAC Treaty, art 7(2). 67 See Possi (n. 47) p. 64. 68 See for instance James Katabazi and 21 others v Secretary General of the East African Community and Attorney General of the Republic of Uganda REF NO 1 of 2007, decided on October 31, 2007 (Katabazi case) 39; Possi (n. 47) p.98. 69 See Possi (n. 47) p.119. 70 1999 EAC Treaty, arts 28, 29 & 30. 71 1999 EAC Treaty, art 27(2). Page | 30 AJLHR 3 (1) 2019 aftermath of the Court‟s ruling in the case of Anyang Nyong’o v Attorney General of Kenya72 which nullified the election of a Kenya national into the East African Legislative Assembly.73 Although the proposal to abolish the EACJ failed, Kenya succeeded in securing a revision of the EAC Treaty. The amended Treaty introduced an appellate chamber, added a new ground for removal of judges, restricted the court‟s material jurisdiction and imposed, as stated earlier, a limitation period for private litigants intending to submit complaints to the EACJ.74 Even though the EACJ has no explicit human rights jurisdiction, the Court has established itself beyond any dispute that it has jurisdiction over matters alleging violation of „rule of law, democracy and good governance.‟75 Using this catchphrase, the Court relying on the EAC Treaty has resolved cases that are essentially human rights in nature. The Court has decided cases related to the unlawful arrest of some applicants by the Ugandan military after applicants had been granted bail by a High Court;76 the failure of the government of Kenya to prevent, investigate and prosecute perpetrators of the 2007 post-election violence;77 and the incommunicado detention of a military officer by the government of Rwanda.78 The question whether the EACJ has jurisdiction to entertain human rights cases was first raised in 2007 in the case of Katabazi and 21 others v Secretary General of the EAC (Katabazi case).79 In that case, the Court asked: „Does this Court have jurisdiction to deal with human rights issues? The quick answer is: No, it does not have.‟80 In that case, the applicants alleged that sometimes in 2004, they were charged with treason before the High Court of Uganda. On 16 November 2006, the High Court granted them bail. While their counsel was preparing documentations for their release, armed security personnel surrounded the courtroom and re-arrested them. The applicants claimed before the Constitutional Court of Uganda that this interference with judicial proceedings was unconstitutional. The Constitutional Court agreed with the applicants. Despite the decision of the Constitutional Court, the government of Uganda refused to release the applicants; thus, the reference to the EACJ. Before the EACJ, the applicants claimed that the refusal of the respondent state to respect and enforce the decisions of the High Court and the Constitutional Court amounted to violation of articles 6, 7(2) and 8(1)(c) of the EAC Treaty. Because the subject matter of the case relates to human rights violation, the respondent urged the Court to dismiss the case for lack of 72 Reference No 1 of 2006 & Appeal No 1 of 2009. 73 KJ Alter, JT Gathii & LR Helfer, „Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences‟ (2016) 27 European Journal of International Law 293, 300 - 306. 74 As above. 75 Possi (n. 47) 107; see also S Spelliscy, „The Proliferation of International Tribunals : A chink in the armor‟ (2001) 40 Columbia Journal of Transnational Law 143, 144. 76 Katabazi case. 77 Independent Medical Unit v Attorney General of Kenya (Independent Medical Unit case) Reference No 3 of 2010. 78 Rugumba v Attorney General of Rwanda (Rugumba case) Reference No 8 of 2010. 79 Katabazi case. 80 Katabazi Case, 14. Page | 31 AYENI: From Trade Courts to Human Rights Tribunals: Contributions of Sub-Regional Courts to the Protection of Human Rights in Africa jurisdiction. The Court held that although it has no human rights jurisdiction, it nonetheless has jurisdiction to interpret and apply the EAC Treaty even if the case involves human rights violations. In the words of the Court: „While the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation under article 27(1) merely because the reference involves allegations of human rights violations.‟81 The Court clearly maintains that the EACJ has jurisdiction to interpret the African Charter in the context of the EAC Treaty. It has been argued that the reasoning in the Democratic Party case demonstrates a further and clear decision by the EACJ to establish for itself a fully-fledged human rights jurisdiction.82 Since about 90 percent of the cases in the EACJ‟s docket are human rights related, it is only logical for the Court to progressively adjust its stance regarding its human rights jurisdiction if it wants to stay relevant in the sub-region.83 States’ obligation to comply with judgments of the EACJ Once a dispute has been referred to the EACJ, states are required to refrain from actions which may aggravate the dispute or detract from the dispute resolution process.84 Judgments of the EACJ are binding on states; in order words, states have a legal obligation to implement them. As soon as the judgment of the Court has been communicated to the state, state officials must take measures without delay to give effect to it.85 As the Court does not „execution machinery‟ to compel the implementation of its judgments, responsibility for implementation of the Court‟s judgments rests on member states of the EAC.86 State compliance therefore depends largely on the political willingness of member states. The procedures for the execution of judgments of the Court which impose financial obligations on states are governed by the rules of civil procedures applicable in each state.87 Upon receipt of the judgment of the EACJ, duly certified by the Court‟s registrar, the state affected by the judgment is required to proceed to execute the judgment. Neither the EAC Treaty nor the Rules of Procedure of the EACJ provides for ways by which implementation of the Court‟s decisions is monitored.88 81 Katabazi case. 82 See A Possi, „It‟s Official: The East African Court of Justice Can Now Adjudicate Human Rights Cases‟ AfricLaw 1 February 2016 Page | 32 AJLHR 3 (1) 2019 SADC Tribunal The Southern African Development (SADC) is a regional economic community comprising 15 southern African states.89 It was established in 1992 to replace the Southern African Development Coordination Conference (SADCC).90 The Treaty establishing the Community was adopted on 17 August 1992.91 The Treaty established the following principal institutions for the Community: the Summit of Heads of State and Government, the Council of Ministers, Commission, the Standing Committee of Officials, the Secretariat, and the Tribunals.92 The focus of this section is on the Tribunal. Jurisdiction The role of the SADC Tribunal (now defunct) was threefold: ensuring adherence to the SADC Treaty, ensuring proper interpretation of the SADC Treaty and other subsidiary instruments, and adjudicating on disputes referred to it.93 The material jurisdiction of the Tribunal covered disputes relating to the interpretation and application of the SADC Treaty and other protocols as well as subsidiary instruments adopted by SADC institutions.94 The Tribunal was first inaugurated on 18 November 2005.95 Its seat was in Windhoek, Namibia.96 As a result of the rulings, especially the Campbell decisions, made by the Tribunal against the government of Zimbabwe, the Tribunal was suspended in 2010.97 On 18 August 2014 during a SADC Summit at Victoria Fall, Zimbabwe, a new Protocol on the SADC Tribunal was adopted.98 When the new Protocol eventually come into force, the jurisdiction of the SADC Tribunal will be limited to inter-state disputes, and only member states of SADC will be competent to refer a dispute to the Tribunal. 89 Southern African Development Community „About SADC‟ Page | 33 AYENI: From Trade Courts to Human Rights Tribunals: Contributions of Sub-Regional Courts to the Protection of Human Rights in Africa States’ obligation to comply with judgments of the suspended SADC Tribunal Decisions of the SADC Tribunal are final and binding on state parties, and enforceable in all state parties of the Community.99 The law and rules of procedure for the enforcement of foreign judgment in the respective member states are applicable to the enforcement of the Tribunal decisions. It is the responsibility of all state parties as well as institutions of the Community to take all measures to ensure the judgments of the Tribunal are executed and complied with.100 Where a state party fails or delays in executing a judgment of the Tribunal, any state concerned shall bring such non-compliance to the attention of the Tribunal and the Tribunal shall report the non-complying state to the Summit for appropriate action.101 Notwithstanding the disbandment of the Tribunal and the closure of the Tribunal to private individuals, the obligations of member states of SADC to execute, implement and comply with all the existing 19 decisions of the defunct SADC Tribunal remain active. 1.1 3. Conclusion This paper set out to examine the contributions of three sub-regional courts to the promotion and protection of human rights in Africa. For this purpose, the paper provides background information about the mandate, jurisdiction and jurisprudence of selected sub-regional courts as well as the legal status and methods of enforcing their decisions and judgments. The paper also takes a look at the institutional designs of the tribunals as well as the political milieu in which the tribunals are situated. It must be noted that in addition to the three main sub-regional courts whose jurisprudence formed the basis of the analysis in this paper, there are other less known sub-regional courts or tribunals in Africa. For instance, the founding treaties of each of the following sub-regional intergovernmental organisations established at least one judicial body: the Common Market for Eastern and Southern Africa (COMESA), Organisation for the Harmonisation of Business Law in Africa (OHBLA or OHADA), West African Economic and Monetary Union (UEMOA),102 Economic Community of Central African States (ECCAS),103 Economic and Monetary Community of Central African States (CEMAC), Southern Africa Custom Union (SACU),104 and the Economic Community of Great Lake Countries (CEPGL).105 However, only three of the several sub-regional courts or tribunals, namely the ECCJ, EACJ and the SADC Tribunal, have decided significant human rights or human rights related cases.106 Of these three, only the ECCJ has clear and unlimited jurisdictional mandate to adjudicate 99 2000 SADC Tribunal Protocol, art 24. 100 2000 SADC Tribunal Protocol, art 32(2). 101 2000 SADC Tribunal Protocol, art 32(5). 102 See 1996 WAEMU Treaty, art 16. 103 ECCAS „Organes de la CEEAC‟ Page | 34 AJLHR 3 (1) 2019 human rights cases.107 The other two, the EACJ and the SADC Tribunal (before its suspension in 2010), repurposed their mandate and did craft a „limited human rights mandate‟ for themselves through creative interpretive strategies. It is expected that as African RECs grow in size and sophistication, more sub-regional courts or tribunals will be established and operationalised. Also, as these tribunals find a niche for themselves to justify their existence, they could as well take on limited human rights jurisdiction like the EACJ and the SADC Tribunal. There is no doubt that the foray of sub-regional courts into human rights adjudication is a welcome development. Firstly, it will expand access to justice; thus making huge contributions through their cases and judgments to the development of international human rights jurisprudence in Africa. The reliance of some of these sub-regional courts on the African Charter and other African Union (AU) standards contributes to the legitimisation of human rights norms and standards at the sub-regional and domestic level. Already, the founding treaties of two of the three regional economic communities in Africa – ECOWAS and EAC – refer to the African Charter as the centrepiece of their human rights agenda. The SADC Tribunal has in its judgments relied copiously on provisions of the African charter as well as the jurisprudence of the African Commission. Beyond merely recognising human rights as an organisational objective, the Economic Community of West African States (ECOWAS) has clearly conferred human rights jurisdiction on its judicial organ, the ECCJ. Despite the above, significant progress still remain to be made to harmonise regional and sub-regional protection of human rights in Africa. Concerns have been expressed by some commentators about the lack of effective coordination and the problem of overlap of jurisdiction. For instance, what happens if a sub-regional court gives interpretations to the provisions of the African Charter that deviate from interpretations given by the African Commission, the African Court and the African Children‟s Rights Committee? Again, can judgments and decisions of sub-regional courts create res judicata effect on proceedings of the three main human rights bodies listed immediately above? In other words, is it possible to re-litigate a human rights matter before the African Commission, the African Court or the African Children‟s Rights Committee after losing at a sub-regional court? Conversely, can an unsuccessful party before a regional tribunal subsequently approach a sub-regional tribunal over the same dispute? Even though some of these questions may make human rights adjudication by sub- regional courts somewhat controversial, it is the considered view of this writer that the involvement of sub-regional courts in human rights adjudication will lead to more access to justice and greater protection of human rights, and that is what should matter the most. 107 As above. Page | 35 YUSUF: Moral Entrepreneurs: A Viable Legislative Venture? MORAL ENTREPRENEURS: A VIABLE LEGISLATIVE VENTURE?1 Abstract The précis of this paper is that the Lagos State House of Assembly in its bid to curb the prevalence of neglect of pregnant women by men responsible for their pregnancy criminalized the act by section 277 of the Criminal Code of Lagos State. However, an examination of the provision appears to the writer to be laden with hurdles that the prosecution must scale in order to secure a conviction. This, the writer contends, is because the act is more in the realm of morality or social deviance or at best a civil matter and should not have been criminalized. It is an examination of the said moral issues, the hurdles facing the prosecution in securing a conviction and other related issues that form the crux of this paper. Keywords: Moral Entrepreneurs, Law, Legislature, Nigeria 1. Introduction The Lagos State of Nigeria without any fear of contradiction takes the lead in law reform in order to regulate qua legislates on issues that boarder on law and order in the society. It has set the pace in criminal law and criminal justice administration reform in Nigeria in order to check contemporary modes in which crime is perpetrated in the society. However, there are some penal enactments which its legislature has passed into law against which conviction may be hard to secure. One such enactment upon which the prosecution may find it very hard to secure a conviction is section 277 of the Criminal Code of Lagos State. The section provides that: 277(1) Any person who impregnates a woman or girl and fails, refuses or neglects to contribute to maternity related costs from ante-natal to post-natal stages is guilty of an offence and is liable to a fine of Forty Five Thousand Naira (N45,000.00) without prejudice to the recovery of any cost that any other person may have reasonably incurred in relation to the upkeep of the woman or girl. (2) For the purpose of this section, maternity related costs includes all medical expenses, food expenses, reasonable shelter and other necessaries. (3) In determining the financial liability of a person under subsection (1) of this section, the Court shall have regard to the means and resources available to him. As a form of public enlightenment about this penal enactment, the then Lagos State Attorney-General says: 1T.A. YUSUF, LLB (Hons.)(Ilorin), LLM (OAU), Senior Lecturer, Nigerian Law School, Kano Campus, [email protected] Page | 36 AJLHR 3 (1) 2019 …the state government has enacted a new criminal law to check this trend…under this law, it is a criminal offence for any man to desert a woman impregnated by him or refuse to contribute to ante-natal and post natal expenses. According to him, „Any person who impregnates a woman or girl and fails, refuses or neglects to contribute to maternity related cost from ante –natal or post –natal stages is guilty of an offence under section 277 of the criminal law of Lagos state and is liable to face the wrath of the law‟… „There has been a lot of campaign about abstinence and condom use. If you want to have a fling then protect yourself and the person you are having sex with. Unfortunately, we have a lot of people who are just too careless and they end up being victims of circumstances they created themselves. If you are man enough to make someone pregnant then you should take full responsibility. This would help to reduce the number of street children area boys that we have in the society today‟.2 2The Nation Newspaper, (Lagos, Sunday, 8th July, 2012),51. The issue of unwanted and teenage pregnancies is becoming rampant in our society. The Punch Newspaper (Lagos, 7th December, 2014) 4, reports that: „A non-governmental organization, Project Smile Africa, has said teenage pregnancy is the major cause of the death of teenage girls worldwide…It added that teenage pregnancy substantially reduces the chances of a bright future for the girl child‟. Likewise, The Guardian Newspaper of Saturday, January 17, 2015 on page 7 reports that: „Worried by the rising involvement of teenage girls in suicide missions and prostitution in recent times, faith based organization involved in rehabilitation and sheltering of destitute girls, Daughters of Abraham Foundation (DOAF) has condemned the rising enrollment of young girls in the acts, saying all citizens must accept responsibility to curb the menace…DOAF Executive Director, Evangelist Margret Bargo said the growing involvement of young girls in prostitution and violence is a sign of failure on the part of family as well as society. She added that religious organizations must also rise to the occasion by harping on the need to create a society that respects the rights of the girl-child for unimpeded development…Bargo who identified the objectives of the foundation as primarily to restore, shelter and rehabilitate needy girls and women, stressed that any society that fails to cater for its female population, especially teenage girls and offer them protection in the face of any challenge, is indirectly encouraging rise in national decadence‟. In the same vein, the Sun Newspaper of February, 8, 2015 on page 9 reports that: „Ondo state government has decried the rate at which men are impregnating mad women in the state. Besides, the government also condemned the high level of under-aged pregnancy in the state, and called on parents and guardians to monitor their children closely. The Commissioner of Women Affairs, Dr (Mrs) Yemi Mahmud while speaking during an interactive session with journalists in Akure lamented that mad women numbering almost 10 delivered babies in December last year alone. According to her, “The rate at which mad women get impregnated has become very alarming in the state now. We wonder who impregnated them and when these men slept with them. The state government has received reports of this ugly development happening in different places across the state,” Furthermore she says: “During the last Christmas celebration, when others were relaxing with members of their families, I was at the hospital with some insane women who wanted to deliver. On Christmas day alone, four of them gave birth. We are surprised with this level of impunity. You wonder where these men slept with the women and when they did it. It is clear that some men take advantage of the health condition of these women to perpetrate the act,” she lamented. She also berated the level at which under-aged children were being impregnated in the state, bemoaned the sexual recklessness among some underage children in the state‟. Page | 37 YUSUF: Moral Entrepreneurs: A Viable Legislative Venture? Rationalizing the enactment of this law, he says: „We have a society that is changing. Certain crimes which were unknown in the past have grown. This is why the legislators have to keep reviewing our laws to respond to societal changes and promote the consciousness of the society about what the government is doing.‟3 It is a discourse on the above provision vis-à-vis issues of its enforcement, desirability of punishing social deviance, the relationship between law and morality and other ancillary issues that form the nucleus of this paper. 2. The Relationship between Law and Morality and the Undesirability of Punishing Minor Offences The evolution of crime in recent times in Nigeria would presumably leave Charles Darwin4 himself gaping in shock in his celestial abode about how Homo sapiens5 have further evolved albeit not physically but in the ingenuity with which they execute their nefarious activities. However, any legislature in its bid to pass relevant legislation to ensure law and order which is the fabric that holds society together should be careful not to transcend the invisible boundary between law and morality. Without attempting to examine the „Set Theory‟ on whether law and morality overlap or not, one must bear in mind that some issues no matter how abhorrent they may be are strictly moral issues which are merely enjoined and not obligatory. Any attempt to make them punishable by penal legislation would mostly meet a brick wall when it comes to their enforcement. It is our belief that the omission being sought to be punished in the penal provision under discourse is more of a moral one and should not be criminalized. Fortification for this can be found in the dictum of Lord Atkin. His Lordship says: „Morality and criminality are far from co-extensive, nor is the sphere of criminality necessarily part of a more extensive field covered by morality-unless the moral code necessarily disapproves of all acts prohibited by the state in which case the argument moves in a circle‟.6 That the law does not waste its time on trifling is a legal maxim in our jurisprudence that is known to even rookie lawyers. On the point above, Ofori-Amankwah says: Considerations of law enforcement generally ought, at least, be taken into account. It is clear that legislation which is either patently pernicious or which, at the other end of the spectrum, quibbles over trifles, is hardly worth enforcing, but merely invites derisive smile from the citizenry. Modern criminal justice is thus caught in a serious dilemma of either being too lenient and, therefore, compounding crime and social deviance, or going to the extreme, by requiring absolute compliance from the citizen, even in regard to purely domestic affairs. Without in the least encouraging social 3 Ibid. 4 A scientist that propounded the theory of evolution of man. 5 The final stage of the evolution of man as propounded by Charles Darwin. 6 Okonkwo and Nash, Criminal Law in Nigeria (Spectrum Publishing Company, 1990) 22. Page | 38 AJLHR 3 (1) 2019 deviance and criminality, modern criminology has drastically overhauled its view about evocation of criminal sanctions…Leading thinkers in these fields now take the view that it is neither necessary or desirable that every conduct which the society frowns upon be punished as criminal…Sanctions which are either too severe or too light only earn ridicule from the bulk of the society by creating a credibility gap between government policies and the true wishes of the people.7 The Court of Appeal of Nigeria lends its support to the undesirability of punishing trivial infractions of the law when it held per Adio J.C.A that „it is however not every trivial or minor offence committed by a person that has to be subject of prosecution in a court of law. It can, therefore, reasonably be said that a distinction has to be made between serious and minor offences‟.8 3. What Constitutes Moral Enterprise and Social Deviance? A proper discourse of this topic would necessitate an enquiry into what constitutes moral enterprise and social deviance. It has been said that: Moral entrepreneurs are individuals or groups who, in the service of their own interests, publicize and problematize „wrong doing‟ and have the power to create and enforce rules to penalize wrong doing…Deviance is a violation of established contextual, cultural, or social norms, whether folkways, mores, or codified law (1906). Folkways are norms based on everyday cultural customs concerning practical matters like how to hold a fork, what type of clothes are appropriate for different situations, or how to greet 7 E.H. Ofori-Amankwah, Criminal Law in the Northern States of Nigeria (Gaskiya Corporation Limited, Zaria, 1986) 8. 8 See Imade V I.G.P (1993) 1 NWLR (pt.271) 619 per Adio JCA. The appellant as plaintiff in the Akure High Court claimed against the respondents/defendants the following reliefs: (a) A declaration that the dismissal of the plaintiff by the 1st defendant as confirmed by his (1st defendant) letter No. P20881/7 dated 4th June, 1985 is wrongful, illegal and therefore null and void. (b) A declaration that the plaintiff is still in the service of the defendants and entitled to his full salaries and allowances from the date of the purported dismissal. (c) An order that the defendants do pay the plaintiff in full his salaries and entitlements from the date of the purported dismissal up till the date of judgment. The crux of the matter was that criminal charges of corrupt practices and of discreditable conduct were preferred against the appellant and some junior officers who were on duty with him at a road block on the 26th December, 1984. The matter was dealt with in the manner of Police orderly room proceedings. At the end of the trial, the appropriate officer, who conducted the trial, found that the appellant was completely innocent of the charges but however recommended that the appellant be reprimanded because he lacked sense of supervision which enabled the junior officers he was required to supervise to collect money (unlawfully) from motorists. The appropriate authority after considering the report and the recommendation dismissed the appellant. Aggrieved by his dismissal from the Nigerian Police Force, the appellant instituted this action at the Akure High Court. At the end of the trial, the trial court dismissed the appellant‟s case. Dissatisfied with the judgment, the appellant appealed to the Court of Appeal. Page | 39 YUSUF: Moral Entrepreneurs: A Viable Legislative Venture? someone politely. Mores are more serious moral injunctions or taboos that are broadly recognized in a society, like the incest taboo. Codified laws are norms that are specified in explicit codes and enforced by government bodies. A crime is therefore an act of deviance that breaks not only a norm, but a law. Deviance can be as minor as picking one‟s nose in public or as major as committing murder.9 Deviance can be relative to place and time because what is considered deviant in one social context may be non-deviant in another (e.g, fighting in a nursing home vs. fighting during a hockey game). Killing another human is considered wrong, except when government permit it during warfare or for self defence. Deviant actions can be mala in se or mala prohibita.10 4. Prosecutorial Hurdles To start with, the provision under consideration revolves around the punishment of an omission as against the commission of an act. We agree to the point as put by Lord Longford that there should be no „sex without responsibility‟11, however, the prosecution may likely have a hard time proving that the accused is responsible for the nominal‟s complainant‟s pregnancy. The accused does not even need to deny that he had sex with the nominal complainant. This is because, the prosecution in addition to proving that the accused had conjugal relationship with the nominal complainant, has to go further to prove that it was only the accused person that so did that around the period the pregnancy was conceived and or in the alternative, that it was the accused sperm that fertilized the nominal complainant‟s egg which resulted in the pregnancy, in the absence of a statutory presumption in favour of the prosecution. This may prove an uphill task for the prosecution, firstly because of the moral decadence in our society wherein females from a tender age have multiple sex partners and in any event, one should not lend a hand to assuage the feelings of a lover whose romance went awry.12 Secondly because it is a known fact that the sex organs of human beings and even animals are not calibrated. Commenting on the moral decadence of girls in contemporary Nigerian society and the probability that the provision under discourse may be abused, Anjorin says: „These days you need to see how desperate our ladies have become. They are so lazy and they just keep throwing themselves around 9 Deviance, Crime, and Social Control, Introduction to Sociology – 1st Canadian Edition – BC Textbooks https://opentextbc.ca/.../chapter/chapter 7 - deviance-crime-and-social control accessed on 12/02/2015, 10.06am. 10 En.m.wikipedia.org/wiki/Deviance_ (sociology) accessed on 15 /02/2018, 21.07p.m. 11 Dictionary of Quotations, published by Geddes and Grosset, Scotland, 1994, p.76. 12Ezeanah v Atta (2004) 7 NWLR (pt873) 468 at 523 per Pats-Acholonu, J.S.C. The parties to this case had, prior to the institution of the action leading to the appeal, a boyfriend and girlfriend relationship. The action was to retrieve a gift allegedly given the girlfriend when the going was good. Page | 40 AJLHR 3 (1) 2019 and seducing men. Who do you think would be the father of the child, if a girl sleeps around and has five or more boyfriends, the girl is simply irresponsible and she should be made to pay the price.‟13 The above (adopting the words of Olagunju J.C.A), is akin to „sowing the wind with assured harvest of the whirlwind‟.14 Still on the burden of proving the paternity of an unborn child, it is well known that sexual intercourse does not usually take place in the presence of third parties and medical evidence may not be of much help since medical examination may not be done immediately after the intercourse when it can determine whether there was such an intercourse between the parties. Even where there is proof or an admission of intercourse that does not ipso facto as stated above prove the paternity of the fetus. It has been said that the paternity of an unborn child could be medically determined in the second trimester i.e. between four to six months. However, the invasive procedure, which is the more commonly available method for carrying out same could lead to an unintended abortion.15 The question would now be: Would it be right to embark on a medical procedure that could lead to an unintended abortion? Without seeming to condole or promote irresponsibility on the part of men, the cost of conducting this medical examination no doubt would cover the ante-natal, post-natal, dedication and naming ceremony of the child when he or she is eventually birthed. It should however be noted that medical evidence may not be conclusive proof of the paternity of an unborn child nor that of a child after its delivery. To buttress the foregoing point; the Evidence Act makes statements relating to the existence of a relationship of paternity either by birth or adoption admissible.16 It should also be noted that the fact that the accused person is a married man and the nominal complainant is his wife would not absolve the prosecution from proving responsibility for the pregnancy where the accused does not admit same. This is because there is no presumption as to pregnancy in the Evidence Act. What we have is the presumption as to paternity/legitimacy of a child born during the existence of a marriage.17 The letters of the law under discourse does not exclude a married man from being liable for neglecting the pregnancy of his lawfully married wife. In this instance, one should consider the social cosequence of such a criminal prosecution. It would likely complicate matrimonial problems and may lead to a divorce. In our African society, it is inconceivable that a wife would „catalyze‟ the criminal prosecution of her husband and still remain as his wife living under the same roof with him. An illustration of the apathy that would most likely be shown by married women to this offence where the complaint would be against their husbands can seen in the 13The Nation Newspaper, op. cit. 14Brifina Ltd v Intercontinental Bank Ltd. (2003) 5 NWLR (pt.814) 540 at 583. This appeal arose from an undefended list action. 15Interview with Dr Bade Adewoye, Consultant Haematologist, General Hospital Katsina on 17th February, 2018 at 11.36am. 16 See section 44 of the Evidence Act, 2011. 17It is our submission that even the presumption of existence of certain facts would not avail the prosecution. See section 167, Evidence Act, 2011. Page | 41 YUSUF: Moral Entrepreneurs: A Viable Legislative Venture? record of prosecution for the offence of bigamy in Nigerian courts. The only reported Nigerian case to our knowledge is the case of R V Princewill.18 In any event, the question pops up in one‟s mind as to why a man should have a higher responsibility for a consequence caused by a mutual act. Putting it in another way, it may be asked that „In this era of gender equality, what would be the basis for imposing a financial burden on one party for the consequence of a consensus act? Would a woman be so penalized (for example) for infecting a man with a sexually transmitted disease or some other adverse consequence like psychological trauma (which sometimes is an aftermath of seduction on a man) which arises as a result of a conjugal relationship? „That which is accorded to some and denied to others is not justice‟.19 5. Suggestions Instead of dispensing state resources on the arrest and prosecution of an accused for this offence, we think it would be more appropriate to focus on a reorientation of the populace to the danger of unwanted pregnancies which could lead to an increase in the number of street urchins. There should be a vigorous campaign on the care of the girl child. It is mostly poverty and unmet basic needs of the girl child that pushes them to seek succor from unscrupulous men who take advantage of them. In this connection, it our opinion that if the law must be, then the parents or care-givers of the nominal complainant should also be punished in appropriate cases where contributory actions or omissions are established. In other words, the society should be educated about the ills of neglecting pregnant women by those responsible for their pregnancies as it is not only financial assistance that is needed during pregnancy but also emotional care. We must remember as posited by Rev. Henry Venn, that „You must seek to convert the heart before you can instruct the mind.‟20 Okonkwo and Nash illustrate the point above thus: Allied to both the deterrent and rehabilitative aspect of punishment is the educative aspect. When a penalty is attached to a particular type of human conduct, it is usually the case that most of the community agree that it should be penalized. But this may not always be so; and the purpose of punishment may often be to educate people out of a certain way of behaviour which is prevalent. It is felt that the mere fact that a part of the community denounces particular conduct so strongly as to render it liable to punishment, will not only deter others from committing it, but also will make them come to see that it is wrong. Thus slavery, when first prohibited, was commonplace 18 (1963) NNLR 54. 19Per Aderemi J.C.A in Mil. Gov., Lagos v Adeyiga (2003), 1 NWLR (pt.802) 589 at 620. The respondents as plaintiffs sued for themselves and on behalf of other members of the Shangisha Landlords‟ Association for an order declaring the demolition of their properties as wrongful. 20 Cited in Joseph Njoh, The Making of an Icon: A Biography of Rev. William Benjamin Euba, (Spectrum Books Limited, Ibadan, 2004),134. Page | 42 AJLHR 3 (1) 2019 in many areas in Nigeria. Now, it is a relatively rare occurrence, thanks to a change in the community‟s attitudes towards the practice. It is also our opinion that a poor economy also leads to neglect of domestic responsibilities like pregnancies. In this case, the State would be punishing an offence which root cause may have been due to the effects of a mis-management of the economy. Here, the offence and the punishment which is meant to be a deterrent would serve no useful purpose as the root-cause has not been tackled. It is opined that penury sometimes could be the reason for this offence in instances where the man is willing but does not have the wherewithal to take care of the pregnancy. It must be borne in mind that the prosecution still has to prove criminal intent. Where the accused is jobless particularly a teenager or a minor, would his care-givers also be held liable? It is also suggested that instead of criminalizing the subject matter of this discourse, an action in tort for seduction could be resorted to. In Animashawun V C.T. Wong,21 Beckley J held thus: …It is clear that at the material time Yewande Animashawun was a school girl of just 16 years of age and that this action was brought by the mother with whom she had been living...In awarding damages, I take into consideration the injured feelings of the Plaintiff and the insult to her pride and honour. I have also taken into consideration the fact the girl seduced is a school girl of 16 years at the time of the seduction. And in this kind of action, the whole conduct of the parties and their position in life, though not their means are to be taken into consideration….It has not been proved at all that Yewande Animashawun is a girl of bad reputation and I find that she is not a girl of bad reputation considering the evidence before me. It would have been a matter of mitigation of damages if the defendant in this case had taken care of the girl when it was discovered that she has been put in the family way. We agree that a child must not be denied proper care and attention and should not be made to suffer for a situation he did not create as stated by Saulawa JCA in Anode V Mmeka22 thus: 21 CCHCJ/11/74, 1793 at 1798. The mother of a school girl 16 years old brought this action claiming damages for the seduction of her daughter who at the material time was living with her. She had alleged that her daughter was rendering domestic services to her as the sole helper, one of which services was that the seduced daughter helped her in trade when she returns from school; that by reason of the seduction the daughter became pregnant and unable to render those services and thereby depriving plaintiff of these services. Defendant admitted having intercourse with her but it was contended that the claim disclosed no cause of action that the girl was of loose character and that in law only her father is in a position to bring this action and not the plaintiff. 22(2008) 10 NWLR (pt.1094) 1 at 18. According to the respondent, his mother, Nnemuwa, was not given out in marriage but was left at home by her father in accordance with the Ndiukwu Umuiyi custom to rear children for the continuance of her father‟s (Mmeka Akabuisi) lineage. The respondent claimed he was Page | 43 YUSUF: Moral Entrepreneurs: A Viable Legislative Venture? A child born out of wedlock, as in the present case follows that of the mother in the absence of any person claiming custody of the child on the basis of being the natural father thereof. This is necessarily so because it is trite that a child must belong to a family and should not thus be abandoned and left homeless for a situation he did not create. By virtue of the provisions of section 42(1) of the Constitution of the Federal Republic of Nigeria, 1999, a citizen of Nigeria shall not be subjected to any form of disabilities or restrictions to which members of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject. It has been suggested that the following could be among the reasons why a man may be unsupportive of a woman during pregnancy: Unplanned pregnancy, he may not be ready, fear of responsibility, he had a difficult childhood, he does not want to „share‟ the woman, loss of himself, lack of role models, lack of sex, he may not know what to expect. The following have been suggested as ways of dealing with such a situation: The couple should get counseling, She should tell him her feelings and find a new intimacy.23 To make it easy for the prosecution, it is suggested that the Evidence Act should be amended to include a presumption as to the paternity of a pregnancy similar to presumption as to the paternity of a child born during the continuance of a marriage.24 In other words, the Evidence Act could be amended to include a rebuttable presumption that a man that sleeps with a woman is responsible for her pregnancy. The section should also be made prosecutable on the complaint of only specified persons. 6. Conclusion „The more featureless and common place a crime, the more difficult it is to bring it home‟25 and „it is a dangerous departure from known legal procedure to make the civil courts arbiters in matters of sin, born by Nnemuwa at home and was therefore entitled to the inheritance of Mmeka Akabuisi‟s property as the sole surviving male in Mmeka Akabuisi lineage on the death of one Chibuo Nmeka without an issue. The appellant, on the other hand, contended that the respondent‟s mother was not left at home but was married to one James Ogoegbulam Chukwu. 23 www.newskidscenter.com/husband-not-supportive-during-pregnancy.html accessed on 12/02/2018, 12:55pm. 24 See Section 165 of the Evidence Act, 2011. It provides that “Without prejudice to section 84 of the Matrimonial Causes Act, where a person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after dissolution of the marriage, the mother remaining unmarried, the court shall presume that the person in question is the child of that man. Section 84 of the Matrimonial Causes Act is in relation to evidence of non-access. It provides that: „Notwithstanding any rule of law, in proceedings under this Act either party to a marriage may give evidence proving or tending to prove that the parties to the marriage did not have sexual relations with each other at any particular time, but shall not be compellable to give such evidence if it would show or tend to show that a child born to the wife during the marriage was illegitimate. 25 Dictionary of Quotations, published by Geddes and Grosset, Scotland, 1994. Page | 44 AJLHR 3 (1) 2019 heaven and hell‟.26 Adaramola admonishes the legislature to have social justice as its objective when enacting legislation, he posits that: Also, the legislator must make continually more humane and better laws which provide equal opportunity and protection for members of the community, while the jurist furnishes both the judge and the legislator with every essential information, data and statistics which will facilitate an unimpeded delivery of social justice to the people. „Fiat justitia ruat coleum‟, yes, but this justice must have social justice as its ultimate objective otherwise it will, in the long run, make the law lose its moral authority. In addition, the jurist must endeavour to formulate a dynamic sociological jurisprudence based on indigenous and common values and aspirations. The evolution and articulation of this synthetic jurisprudence is the challenge of African jurists today and in the coming millennia.27 From the totality of the foregoing discourse, it is our submission that the Nigerian society is not yet ripe for the enforcement of a penal provision as the one contained in section 277 of the Criminal Code of Lagos State as its enforcement could throw up a host of other issues in addition to being abused. 26 Sketch v Ajagbemokeferi (1989) 1 NWLR (pt.100) 706, per Oputa JSC. 27 Adaramola, „Jurisprudence‟, (Fourth Edition, Lexis Nexis, 2008), 273. Page | 45 OKOYE & ORAEGBUNAM: Some Pathways for Psychology’s Influence on a Legal System SOME PATHWAYS FOR PSYCHOLOGY’S INFLUENCE ON A LEGAL SYSTEM1* Abstract Psychology influences a legal system in a number of ways especially in giving expert testimony, as amicus curia briefs, through broad dissemination of research finding, influencing legislatures and public policy, to say the least. This paper just examines these avenues via which psychology influences a legal system. Keywords: Psychology, Legal System, Influence, Jurisprudence 1. Introduction The impact and relevance of psychology to law is enormous. In criminal case as well as in civil case, the court considers the psychological attitude and behaviour of the defendant on her final judgment. Every area of psychology such as developmental, social, clinical and cognitive is relevant to some aspects of law. While psychology is descriptive, law is prescriptive. While psychology tells us how people actually behave, law tells us how people ought to behave. Psychological Science is mainly interested in rendering justice. Law is based on authority and precedents while psychology is based on empiricism. Whereas law advances through the accumulation of rulings produced by courts, psychology advances through the accumulation of data produced by scientific methods. Psychologists influence the legal system in a number of ways especially in giving expert testimony, as amicus curia briefs, through broad dissemination of research finding, influencing legislatures and public policy, to say the least. This paper just examines these avenues via which psychology influences a legal system 2. Relevant Pathways Expert testimony Judges, jurors and legislators cannot be expected to know everything, so people who have acquired specialized knowledge through education and experience commonly called upon to testify in courts or in front of legislative bodies are welcomed. In court, the process usually works like this: an attorney representing one side or the other in a trial proposes that a particular expert be allowed to testify and the presiding judge decides whether or not to allow the testimony. In the United States of America, rule 702 of the Federal Rules of Evidence sets the legal standard for permitting expert testimony thus: If scientist, technical or other specialized knowledge will assist the trial court to understand the 1*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. Page | 46 AJLHR 3 (1) 2019 evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. In Nigeria, Section 68(1) of the Nigeria Evidence Act 2001 states that: When the court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identify of hand writing or finger impression the opinion upon that point of persons specially skilled in such foreign law, customary law or custom or science or act or in questions as to identify of handwriting or finger impression are admissible In practice this standard gives enormous discretion to judges in deciding whether or not to allow expert testimony. In 1993, in the case of Daubert v Merrell Dow Pharmaceuticals Inc. the US Supreme Court held that judges must serve as gate keepers for scientific testimony. In effect, judges were told to assess the scientific validity of potential testimony before allowing the purportedly scientific evidence to be heard at trial. To assist judges, the court listed four criteria to be used when deciding if purportedly scientific testimony should be admitted. The said criteria are as follows: (i) the testability or ‘falsifiability’ of the theory or technique (whether the technique(s) can be proven false through data collection); (ii) when the scientific findings have been subjected to peer review (generally through publication in a peer reviewed Journal); (iii) whether there is a known rate of error; and (iv) whether the conclusions are generally accepted in the relevant scientific community. These criteria leave plenty of room for discretion. If two judges are considering the same expert testimony, one might decide that the testimony is admissible and the other might decide that it does not meet the Daubert standard of admissibility. Not everyone agrees that judges are well equipped to play the role of gatekeeper. In the minority opinion, Justice Rehnquist complained that the Daubert decision obliges judges to become ‘amateur scientists’ a role beyond their training and expertise. Indeed research demonstrates that judges are not especially skilled at distinguishing between high-quality and low- quality research. Margaret Bill Kovera and Bradley McAuliffe2 asked circuit court judges to evaluate psychological evidence in sexual harassment case. Although the researchers systematically varied the methodological quality of the research presented to judges. Methodological quality did not influence the judge’s evaluations of the study’s quality or their decision to admit the evidence. Both weak and strong research was admitted at the same low rate3 indicating a lack of scientific sophistication among judges (and perhaps general bias against psychological research). Although 91% of judges supported the ‘gate keeping’ role established by DAUBERT, the vast majority could not adequately define the four guide lines for admissibility elaborated by Daubert4. Two of the guidelines were reasonable well understood by judges and two were poorly understood. 71% of the judges understood the scientific 2 MB Kovera, & BD McAuliff, ‘The effect of peer review and evidence qualify on judge evaluation of psychological science: Are judges effective gate keeper?’ (2000) 85 Journal of Applied Psychology 85 574-586. 3 17% of judges admitted the research. 4 testability, peer review, error rate and general acceptance. Page | 47 OKOYE & ORAEGBUNAM: Some Pathways for Psychology’s Influence on a Legal System peer review process and 82% also demonstrated a clear understanding of general acceptance. However, only 6% understood the meaning of testability and only 4% clearly understood the concept of ‘error rate’. Judges limited understanding of scientific methods is troubling. Clearly, if judges are to assume the role of effective gatekeepers, they need to assume the responsibility of learning about scientific methods. Ideally, expert witnesses educate the court – they summarize research findings in a clear, impartial manner. One of the ethical dilemmas posed by expert testimony is that psychologists can too easily be swept into the currents of the person who hired them. Experts are not supplied to lawyers, they are almost always chosen by lawyers representing a particular side in a specific case. Naturally, in their role as adversaries, lawyers often ‘shop around’ to find the expert who will support their side. They turn to experts who have done well for them in prior cases, they call other lawyers and ask for the names of experts who might provide favourable testimony, and they may have telephone conversations (or interview) with few potential experts to get to a sense of who might provide the strongest testimony Once a suitable expert is found, he or she may be ‘prepared’ for trial. During this preparation, experts may be seduced into thinking of themselves as part of an adversarial team. It is in the interest of lawyers to create this mind set. Sometimes subtly and sometimes bluntly, lawyers frequently let their experts know that they are working on behalf of the just cause and that the opposing team is misguided or untrustworthy. Once an expert is hired, lawyers often try to find out the strongest form of testimony that witness is willing to give. Because lawyers acting as advocates for their client’s interest usually choose their expert witnesses, they tend to prefer experts who will make unambiguous statements and reach clear conclusions in support of their side of the case. In a seminal article on expert witnesses, Saks described three roles that might be assumed by expert psychological witnesses. The first role is the Conduct-Educator who strives to present a full and accurate picture of the current state of psychological knowledge. He or she realizes that ‘to do this may be to be a mere technocrat, rather than a human being concerned with the moral implications of what I say and with the greater good of society. The central difficulty of this role is whether it is all right for me to contribute hard-won knowledge to causes I would just as soon see lose.’5 In this role, the expert faithfully represents a field of knowledge of his profession. In the second type of role, the Philosopher-Advocate, the expert makes concessions to the adversarial climate of the court room and allows personal values to shape testimony. He or she might say, ‘there is a greater good at stake in this case, and that is for example, desegregating schools, seeing to it that this child goes to the right home, keeping people from being executed, seeing to it that people are executed. I must advocate for those outcomes, and that obviously mean giving testimony that involves clever editing, selecting, shading, exaggerating, or glossing over. The third role: That of Hired Gun: Here the expert essentially ‘sells 5MJ.Saks. ‘Expert witnesses, non -expert witnesses and non-witness expert’ (1990) 14. Law and Human Behaviour 291-313; Page | 48 AJLHR 3 (1) 2019 out’ and capitulates to the adversarial demands of the court room. Hired guns intentionally shape their testimony to help the side of the hiring attorney. Many commentators have excoriated experts who are willing to assume the role of hired gun. Margaret Hagen, an experimental psychologist, has written a scorching indictment of clinical psychologists and other mental health professionals who have testified in court as experts. In her book- whores of the court- Hagan cites several cases where psychotherapists, social workers and psychiatrists have made unequivocal statements that have no research support, for example, it is possible to tell if a particular young child is lying, if a particular memory is accurate, or if someone is falling past traumatic stress syndrome. She argues that these ‘witchdoctors’ and ‘self-styled psycho-expert’ are often motivated by the money they receive for their testimony or be a missionary like zeal to promote a particular cause6 It is extremely rare for an expert witness who shades or misrepresents research findings to be prosecuted for misconduct. Perjury requires lying about verifiable facts. Experts are called to offer expert opinions. And because opinions are neither true nor false, even highly unusual opinions cannot be described as lies. An expert may be biased or ignorant about relevant research, or incompetent, but that is not the same as being a liar. As one state supreme court put it, ‘it is virtually impossible to prosecute an expert witness for perjury7. While it is true that unscrupulous ‘expert’ have sometimes testified in court, the ethical guide lines established by psychologists confirm rather closely to Saks Conduct- Educator role. Here are a few quotes from the guidelines: ...psychologists realize that their public role as ‘expert to the court or ‘an expert representing the profession’ confers on them a special responsibility for fairness and accuracy in their public statements8 Psychologists must not ... Participate in partisan attempts to avoid, deny, or subvert the presentation of evidence contrary to their own position. When … their own personal values, moral beliefs, or personal relationships with parties to a legal proceeding interfere with their ability to practice competently,… they are obliged to decline participation or limit their assistance in a manner consistent with the professional obligations9 Clearly, psychologists’ primary loyalty must be to their discipline. They must strive to accurately report the current state of scientific knowledge. Section 68 of the Evidence Act of Nigeria makes the opinion of persons specially skilled in the items listed therein relevant upon a point when the court has to form an opinion on the point. Such persons are called experts in sub-section 2 and in the case of Olayiwola v. Federal Republic of Nigeria10, the court had described who an expert is as follows: An expert under section 58 of the Evidence Act (section 57 laws of the federation 1990 may be described as any person specially skilled in a particular field in which he had been invited to testify. Whether any person will pass as an expert or not is a matter of law to be decided by the judge … There is no provision that the special 6 M Hagen, Whores of the court ;1997 7 Sears v Rutishauser 466 NE2d 210[111.1984]. 8 R.v Haeeis (2005) ALL ER (D) 298 (JUL) 9 R. Roesch et al, Expert Evidence. In R. Bull & D Carson (eds) Handbook of Psychology in Legal Context Chichester: (John Wiley and sons; 1999.) 10 Olayiwola v. Federal Republic of Nigeria [2006] ALL FWLR (pt305) 667 at 695. Page | 49 OKOYE & ORAEGBUNAM: Some Pathways for Psychology’s Influence on a Legal System skill attributable to an expert must be acquired through formal education, professionally or otherwise. It is enough that the person claiming to be an expert has the skill that he professes or asserts to have The court went further to state the guideline for the determination of competence of an expert witness thus: It is not only the general nature, but also the precise character of the question upon which expert evidence is required, that have to be taken into account when deciding whether the qualifications of a person entitles him to be regarded as a competent expert witness. The case of Aigbadion v State11 and Ajani v Comptroller of Customs12 were cited by the court for the above statements of the law. Put in simple terms, in Amosun v Inec13 the court held that for a person to qualify as an expert under these provisions the court must be satisfied that he is specially skilled in the subject, issue or point on which he is called to testify and on which the court has to form an opinion. It is clear from the provisions of sub-section 1, that the only qualification required of an expert is the special skill in the subject or on the issue or point upon which he was called to give opinion by way of evidence to assist the court to form its own judicial determinative opinion on the subject, issue or point in contest before it. By and large, the special skill required would depend on the training, practical experience of such a nature that amounts to expertise and in-depth knowledge demonstrated through understanding of the subject of the evidence. Depending on the subject of the evidence, a formal education qualification may not be necessary for a person to acquire the special skill that would make him an expert under S. 68(1) as stated in the cases cited above. Furthermore from the language and tenor of the provisions, the duty to determine whether or not a person is specially skilled in the subject or on the point on which the court is to form an opinion is that of the court that is to be assisted by the evidence in order to form its opinion. As a result it is the person called to give evidence on the subject or point that owes or bears the burden of satisfying the court that he possesses such special skill in the subject to qualify him to be regarded as an expert whose opinion would be of an effective assistance to the court. The qualification of a person as an expert to be determined by the court is a condition precedent for the admissibility of his evidence as expert evidence. Where a person fails to convince the court of his qualification as an expert by his inability to demonstrate that he had acquired and possessed the knowledge, special experience and expertise in the subject of his evidence, then his evidence cannot be admitted as an expert evidence under Section 68(1) of the Evidence Act 2011. see Ude v Osuji14. Once the court comes to the conclusion that a witness called to testify or give evidence on a particular point, issue or subject on which it has to form an opinion, is an expert for being specially skilled thereon as envisaged by the provisions of Section 57(1) of the Evidence Act, the law requires it to treat such evidence with respect and candour UTB v Awanzi Gana Enterprises15. 11 Aigbadion v State [1999]7 NWLR (pt 586) 284. 12 Ajani v Comptroller of Customs [1952] 14 WACA. 13 Amosun v Inec [2010] LPELR- CCA/1/EPT/GOV/01/2009. 14 Ude v Osuji [1990] 5 NWLR (pt 151) 488 AT 573 15 UTB v Awanzi Gana Enterprise [1994] 6 NWLR (pt. 348) 56 at 62, and Amu v Amu [2000] 7 NWLR (pt. 663) 164 at 174, see also Nicon v Nze [2004] 15 NWLR (pt. 896) 245 at 264-5 per Garba JCA Page | 50 AJLHR 3 (1) 2019 There are new efforts under way in the United States of America to educate judges about scientific reasoning and train judges to be critical consumers of scientific research. In response to the US Supreme Court Ruling in Daubert the United States of America U.S.A. Federal Judicial Center (the research arm of the Federal Court in the US) established several training programs to help judges responsibly fill their expanded role as gate keepers. In some state and few universities in the US (eg the National Judicial College in Reno, Nevada or the Adjudication Center at Duke University offer judges week-long workshops on scientific evidence. These workshops are designed to teach judges how to evaluate the validity of the science behind various types of expert testimony. Judges without the time or inclination to attend classes can turn to a reference book that makes scientific testimony accessible to judges.16 I advocate that such training and workshops can be organized for judges in Nigeria to help them evaluate the validity of the science behind various types of expert testimony. Cross-Disciplinary Training One way to increase the use of social science by the legal system is through education. It is during postgraduate training that students fully commit themselves to careers in psychology and law. The impact of a solid introduction to the law (for graduate students in psychology) or a solid introduction to social science (for law students) may be felt long after school has ended. Exposure to social science is likely to make lawyers and judges more receptive to social scientific research and testimony by psychologists. It is also likely to make judges and lawyers less receptive to testimony based on shoddy science or testimony lacking a solid scientific foundation. Conversely exposing psychologists to legal training is likely to have beneficial effects. Psychologists with a sophisticated understanding of law are better equipped to ask questions and seek answers that are useful to the legal system. They may also be more likely to communicate their findings to legal professionals. The best arrangement for obtaining dual training in the disciplines of Psychology and law is a matter of some controversy. Some have argued for double doctorate programs that lead to both a J.D in law and a PhD in Psychology. Unfortunately, such programs generally require about seven years of graduate study. Also to earn a J.D, students must take a full complement of law classes, some of which for example, corporations, tax, wills and trusts, property) have limited relevance to the study of psychology and law. One former director of a double doctorate program reached the conclusion that ‘having both degrees is unnecessary for making a contribution to psycholegal studies. Indeed, expertise in one discipline with a basic knowledge in the other is probably sufficient’17. Those Ph.D programs that offer specialization in psychology and law include substantial training in areas of criminal and civil law that are of interest to psychologists. A final training model involves encouraging psychologists who already have their PhD to earn a one-year master degree in legal studies. Unfortunately, few law school offer such programs overseas for instance in the USA and none in Nigeria. 16 D L Faigman el at, Modern Scientific evidence: The Law and Science of expert testimony.[ St. Paul, MN: West; 1997] p. 17 G B Melton, ‘Bringing psychology to the legal system: Opportunities, Obstacles, and Efficiency’ (1987) 42 American Psychologists, 488-495. Page | 51 OKOYE & ORAEGBUNAM: Some Pathways for Psychology’s Influence on a Legal System Lawyers with an interest in enhancing their knowledge of Psychology can select from scores of postgraduate diploma and masters programs in Psychology offered at universities across Nigeria and overseas. However, because many lawyers lack the requisite background in statistics and research methods, significant remedial work may be necessary. An understanding of the social scientific approach to generating valid knowledge is critical for applying Psychology to the legal system. Three Psychologist who work in law school in the US (Gary Melton, John Monahan & Michael Saks) put it this way: Much law rests on empirical as well as philosophical foundations that, if not known, must be assumed. Although psychologists may not always be able to answer the law’s ubiquitous questions about human behaviour, they at least can provide a sophisticated and realistic appreciation of what it would take to discover an adequate answer, and they can instill appropriate caution in making assumptions about social reality18 Amicus Curiae Briefs The amicus curia (‘friends of the court’) brief has proven to be a useful tool for educating judges about relevant Psychological research. The ‘friends’ are interested and knowledgeable parties that do not have direct involvement in the case. The goal of briefs is to summarize the relevant body of research and clarify the over-all meaning of a set of findings. The American Psychological Association (APP), through its Committee on Legal Issues (COLI), has filed amicus briefs on a wide range of cases dealing with issues as diverse as the Jury size, the death penalty, gay rights, abortion, the prediction of dangerousness, rights of mentally ill patients, the effects of employment, discrimination, sexual behaviour, and the court room testimony of child witnesses. The involvement of scientists in amicus briefs can be controversial. Some scholars describe briefs as ranging along a continuum, with ‘science translation’ at one pole and ‘advocacy’ at the other. Gary Melton and Michael Saks19 recommend that the writing of an amicus brief should be guided by ‘…an honest desire to share with the courts a faithful picture of the available psychological knowledge, and to interest the research only to the extent that doing so will clarify its meaning. But even, a science translation brief may have an undercurrent of advocacy. A group of psychologists who have extensive experience in developing amicus briefs offer the following guidance. It is possible to be scientific without being neutral, to be objective yet form an opinion about the implications of the research. If the data warrant a particular conclusion, then it may be reasonable for brief writers to advocate for a legal decision that would reflect the knowledge gained from the Research20 An interesting example of amicus brief was submitted to the US Supreme Court in the 1999 case of Kumtto Tire Co Ltd v Carmichael21. The case involved eight members of the Carmichael family who 18 Ibid, p. 37 19 G B Melton & M J Saks, ‘AR-LS’s probono amicus brief project’ (1990) 10 American Psychological Law Society News, 5. 20R. Roesch et al, ‘Social Science and the Courts: The role of amicus briefs’ (1991) 15 Law and Human Behaviour, 1-14. 21 Kumtto Tire Co Ltd v Carmichael 526 US 137 1999. Page | 52 AJLHR 3 (1) 2019 were riding in their minivan when a tire blew out, the minivan crashed killing one member of the Carmichael family and injuring seven others. In support of their case against Kumbo tires, the Carmichaels had hoped to have the testimony of a ‘tire failure expert’ admitted at the trial. The trial Judge excluded the testimony. In a unanimous decision, the Supreme Court ruled in favour of the tire company, holding that Federal Court Judges have broad discretion in exercising their responsibilities as gatekeepers for expert scientific testimony. The amicus brief authored by Neil Vidmar and 17 other social scientists had nothing to do with minivans or tire failures. It addressed the issue of how juries respond to expert testimony. The company attorneys had submitted documents asserting that Juries ‘…give great (and sometimes undue) deference to expert testimony’. Experts frequently ends up confusing jurors and effectively takes the Jury’s place if they believe him’, and that ‘...jurors often abdicate their fact finding obligation and simply adopt the experts opinion’22. The amicus brief submitted by the group of social scientists reviewed the evidence of jury decision making and reached a contrary conclusion. The great weight of evidence challenges the view that jurors abdicate their responsibilities as fact finders when faced with expert evidence or anti-business. The data tend to indicate that jurors are often skeptical of plaintiffs claim’… and that jurors do not. ...suspend critical reasoning skills whenever experts testify at trial23. Briefs offer some advantages over expert testimony. They are typically written by a team of researchers and they are often reviewed by a professional organization and the research studies that form the basis of the brief are listed in the reference section. Sometimes scholars must point out that research is inconclusive or that definitive answers are not yet available. Other times a body of research allows clear conclusions and recommendations. Finally, it should be emphasized that an amicus brief is only one factor influencing a judicial decision. Legal and practical considerations are typically given more weight than social scientific evidence. For examples, in the 1976 sex discrimination case, the US Supreme Court was candid about its resistance to social scientific evidence thus: Providing broad sociological propositions by statistics is a dubious business and one that inevitably is in tension with the normative philosophy that underlies the equal Protection clause …it is unrealistic to expect either members of the Judiciary or state officials to be well versed in the rigors of experimental or statistical technique 24. In Nigeria, the use of Amicus curia briefs is also employed by the courts. In Atake v Afejuku25 Ogundare JSC defined amicus curia thus: ‘Amicus curia has been defined in Osborne’s Concise Law Dictionary 7th Edition at page 25 as: A friend of the court. He is one who called the attention of the 22N Vimar et al, ‘Amicus brief: Kumho Tire V Carmichael’ (2000) 24 Law and Human Behaviour, 388- 400 23B.L Cutler et al,. ‘The eyewitness, the Expert Psychologist and the Jury’. (1987) 13, Law and Human Behaviour, 311-32 24Craig v Boren 429,US 190 (1976). 25 Atake v Afejuku [1994] 9 NWLR (pt 368). Page | 53 OKOYE & ORAEGBUNAM: Some Pathways for Psychology’s Influence on a Legal System court to some point of law or fact, which would appear to have been overlooked; usually a member of the Bar’. On some occasions the law officers are requested or permitted to argue a case which they are not instructed to appear. And in Grice v The Queen26 Ferguson, J. defined the expression thus: Amicus curiae is defined as a bystander usually a lawyer, who interpose and volunteers information upon some matter of law in regard to which the judge is doubtful or mistaken, or upon a matter of which the court may take judicial cognizance. He is one whom a stander by where a judge is doubtful or mistaken in a matter of law may inform the court. In its ordinary use, the term implies the friendly intervention of counsel to remind the court of some matter of law which has escaped its notice and in regard to which it is in danger of going wrong. A similar definition appears in Earl Jowitt’s Dictionary of English Law where it stated: Amicus curia, a friend of the court; that it to say, a person, whether a member of the Bar not engaged in the case or any other bystander, who calls the attention of the court to some decision, whether reported or unreported, or some point of law which would appear to have been overlooked. The position appears slightly different in the United States. For in Black’s Law Dictionary, the expression amicus curia is defined thus: ‘Amicus curia, means literally, a friend of the court. A person with strong interest in or views on the subject matter of an action may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own view. Such amicus curia brief are commonly filed in appeals concerning matters of a broad public interest for example, Civil right case per Ogundare JSC. From the above definitions and from decided cases in Nigeria, amicus curiae is employed mainly by the apex court in Nigeria (the Supreme Court) in respect of controversial or serious cases that the court need contribution on issues of law or fact which the court is in danger of going wrong. Amicus curia in Nigerian context have not developed to the use of scientific theories or findings in science or social science of psychological (scientific) theories, findings and improvements which is the core contribution of this thesis. Amicus Curia in Nigeria in almost or majority of the cases involves the contributions of lawyers usually the Attorney-General of the 36 States of the Federation and Senior Advocates of Nigeria. In Aqua Ltd v Ondo State Sports Council27 , the Supreme Court invited outstanding, distinguished Senior Advocates of Nigeria to file an Amicus Brief in determining serious issues of law. In Egbogbonome v State28, the Supreme Court of Nigeria invited the Attorney General of the States in Nigeria and the Attorney General of the Federation to file amicus curia in issues of law 26 Grice v The Queen [1957] 11 DLR (2d) 699, 702. 27 Aqua Ltd v Ondo State Sports Council [1987] NWLR (pt 61): see also Ojokolobo v Alamu [1995] 5 NWLR (pt 390); Awojugbagbe Light Industries Limited v Chinukwe & Anor [2004] 18 NWLR (pt 904). Ifezue v Mbadugha & Anor ALL N.L.R. 256; A-G Lagos v A-G Federation [1991] 5 NWLR (pt 192); N.E.C & Anor v Nzeribe [1989] 1 NWLRL (pt 97); Bank Nig Ltd v Ajilo [1983] NWLR (pt 312). And Rossek v ACB [1993] NWLR (pt 306). 28 Egbogbonome v State [1988] NWLR (pt 78). ; see also Emelogu v State [2006] NWLR (pt 973) and also FRN v Osahon & Ors [1986] NWLR (pt 20). Page | 54 AJLHR 3 (1) 2019 before them. In Mariana Nominees Ltd v Federal Board Of Inland Revenue29 the Supreme Court of Nigeria invited the Lagos State Government to file Amicus curia to enable them in the determination of the case. In Ogudu v State30, the Supreme Court invited Attorney Generals of the States of Nigeria as well as 3 learned counsel to file Amicus curiae in the determination of the case. From decided cases in Nigeria, it is clear that it is only lawyers that are invited to file Amicus curia. Scientific research in the social sciences has advanced significantly and courts all over the world employ the findings of the social sciences under some stipulated rules and guidelines in its application for the administration of justice. Nigerian Courts must live up to the challenges and findings of social sciences and other sciences in the administration of justice; hence Amicus curia in Nigeria should also be extended to the findings of psychologists, social Scientists and other scientists as well. Broad Dissemination of Research Findings Some psychologists argue that social scientists’ greatest impact may be indirect – that is if research findings are widely disseminated through the popular media, they eventually come to be regarded as cultural truism31. Judges and lawyers do not live in caves set off from the larger society. They are part of the large culture and receive most of their information about social science informally, through newspapers, magazines, television, and the internet. As one researcher puts it ‘… the mention of findings of a particular study or group of studies in time may have a substantial greater impact on the law than publication in a prestigious social science journal32. Indeed studies in the US show that Judges are far more likely to read Psychology today than Law or social science journals. Judges’ reading about the legal profession and the legal issues tends to be limited to the law reports and bar journal. Even when psychologists actively try to disseminate the result of their research to decision makers in the legal system, the path to reform is neither clear nor well established. While it is essential to make sure that research findings reach legal professionals in a form they can understand and use effectively, the impact of that understating on the legal system in Nigeria and elsewhere is not likely to be immediate. Efforts to disseminate research findings would not be limited to lawyers and judges. In a democratic society, it is ultimately the public who must place their trust in the legal system. If scientist wants the public to understand psychological knowledge, efforts must be intensified to educate the public. One scholar puts it this way: ...too little attention has been paid over the last decade or so to elevating the level of popular discourse and understanding ... Elites – whether they are legal decision makers or academic change agents ignore the public at their peril. When they do so, as I believe they have over the last decade and half, then the public can be counted upon to reverse whatever changes have been effected in their absence or without 29 Mariana Nominees Ltd v Federal Board Of Inland Revenue [1994] 9 NWLR (pt 366). 30 Ogudu v State [2006] All FWLR (pt 305) 667 at 695. 31 PC. Ellsworth & J G Getman, Social Science in legal decision making, In L. Lipson & Wheeler (Eds) Law and the Social Sciences (New York: Russel Sage.; 1987) pp. 26-51 32 G B Melthon. ‘Brining psychology to the legal system: opportunities, obstacles and efficacy’ (1987) 4 American Psychologist 502-509. Page | 55 OKOYE & ORAEGBUNAM: Some Pathways for Psychology’s Influence on a Legal System their consent ... It matters what ‘the people’ think. Indeed it matters even if they are incorrect in their beliefs33 Influencing Legislatures and Public Policy Much of the effort to bring Psychology into the legal system has focused on the court. But, of course, legislature also makes laws. Sometimes, Psychologists try to influence the thinking of legislators on a specific issue. For example, over the past 30 years, hundreds of studies have explored the conditions under which eyewitnesses are likely to provide accurate reports about crimes they have observed34. Many psychologists serving as expert witnesses have summarized their findings for judges and juries in individual cases. Such testimony is an effective means of educating jurors and judges about factors influencing the accuracy of eye witnesses identifications. However, expert testimony comes after an identification (possibly mistaken) has already been made. Research findings would have a greater impact on the legal system if they were taken into account as identifications were made. In 1998, a team of psychologists translated the voluminous research on eyewitness’s testimony into a series of recommendations for use by police, lawyers and judges35. Working with the National Institute of Justice, the psychologists formulated several specific research based procedures for gathering eyewitness’s evidence. Use of these procedures dramatically improves the accuracy of identifications by eyewitnesses and considerable progress has been made in persuading police departments to adopt the guidelines36. Finally, psychologists and other social scientists make direct attempts to influence legislatures through the lobbying efforts of their professional associations, for example, the American Psychological Association and the American Psychological Society. These lobbying efforts are generally aimed at obtaining better funding for initiatives of special interest to psychologists like graduate training and basic research, promotion of mental health, prevention and treatment of violent behaviour, improvement of childhood education and services for children, the development of fair and effective testing practices in school and work settings. In addition to lobbying for particular funding priorities, psychologists frequently testify before the U.S Congress and sometimes advise senators and representatives while serving on legislative staffs. Psychology and the Courts The results of psychology’s attempts to influence the legal system have been mixed. In some cases, it appears that there has been a substantial impact. For example, in an examination of the impact of amicus briefs submitted by the American Psychological Association (APA) on the Supreme Court, Charles Tremper37 found that the court’s opinion often mirrored the reasoning and language of the 33 C Haney, ‘Psychology and legal change: The impact of a decease’ (1993)17 Law and Human Behaviour 371-398. 34 GL Ell el at, ‘Eyewitness identification procedures: Recommendations for lineups and photospreads’ (1998) 22 Law and Human Behaviour, 603-647. 35 Ibid 36 G Kolata & I Petterson, ‘New way to ensure eyewitness can ID the right guy’ (2001) The New- York Times P.A I. 37 CR. Tremper, ‘Organized Psychology’s effort to influence judicial policy making’ (1987) 42 American Psychologist, 496-501 Page | 56 AJLHR 3 (1) 2019 briefs. Other times it appears that judges have made use of social scientific evidence only when it was supportive of the ruling a judge wants to make anyway. And sometimes, the courts have ignored, dismissed or misrepresented the findings of social scientific research. In a particularly distressing quote from the case of Ballew v Georgia 38, Justice Lewis Powell responded to a social science based argument made by justice Blackmun: I have reservations as to the wisdom – as well as the necessity – of Mr. Justice Blackmun’s heavy reliance on numerology derived from statistical studies. Moreover, neither the validity nor the methodology employed by the studies cited was subjected to the traditional testing mechanisms of the adversary process. It can be argued that, for the most part, presentation of social science evidence raises the consciousness of Judges and forces them to take research evidence seriously. And interesting perspective offered by Thomas Grisso and Michael Saks39 is that the presentation of research evidence in the courts ‘keeps Judges honest’ by forcing them to clearly articulate the basis for their decisions even when they rule in a way that contradicts the evidence. They argue that ‘psychology’s input may compel Judges to act like Judges, stating clearly the fundamental values and normative premises on which their decisions are grounded, rather than hiding behind empirical errors or uncertainties. In this sense, we can regard psychology’s recent efforts as successes’. In his view, J. Alexander Tanford40 states that judges are often reluctant to embrace the findings of social scientific research for both intellectual and personal reasons. Intellectually, judges, know little about empirical research and are unable (or perhaps unwilling) to make sense of it. Indeed, as noted earlier, legal and social scientific views of the world are often in conflict. However, the resistance is not only intellectual; there are also personal reasons behind the reluctance of judges. Judges tend to be self confident, political conservative, and protective of their prestige and power. When confronted with empirical research, they are likely to feel that they do not need help from the social scientists, they are likely to suspect that social scientists are politically liberal, and they may view social science as undermining their power. Efforts to increase the receptivity of courts may need to target both the intellectual and personal forms of resistance. 3. Conclusion 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 take into account man as a thinking, feeling, believing totality41 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, 38 Ballew v Georgia 435 U.S. 223 (1978). 39 Ibid. 40 J.A Tanford,. ‘The Limits of Scientific Jurisprudence: The Supreme Court and Psychology’. (1990) 66 Indiana Law Journal, 137-173 41 BR Clifford & R. Bull, The Psychology of Person Identification. [London. Routledge & Keagan Paul. 1978] p. 5 Page | 57 OKOYE & ORAEGBUNAM: Some Pathways for Psychology’s Influence on a Legal System King42 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 Bull43 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. Losel44 pointed out that psychologists have plethora of theories and perspectives while the main goal for law is uniformity and avoidance of disparity. Greer45 called the attention of his readers to the fact that many psychologists 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. Ogloff46 wrote on the need for legal psychologists to have an in-depth understanding of the relevant law they are conducting research on. McEwan47 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 Bartol48 go a step further and argues that psychologist should learn to do legal research. 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, Carson49 suggested that the way forward for psychology and law is primary through collaboration focused upon change. 42 M King, Psychology in and out of Court: A critical Examination of Legal Psychology. [Oxford: Pergaman. 1986] 43 BR Clifford & R Bull, The Psychology of Person Identification. [London Routtedge & Keagan Paul. 1978] 44 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 45 DS Greer, ‘Anything but the truth: the reliability of Testimony in Criminal Trails.’(1971)11 British Journal of Criminology 131-54 46 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 47 J McEwan, Breaking down the barriers. Paper presented at the 9th Annual Interdisciplinary Colloquium, University College, [London, 2005] p 11-12 48CR Bartol & AM Bartol, Psychology and Law: Theory Research and Application [Thomas/ Wadsworth. 2004a] 49 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) Page | 58 AJLHR 3 (1) 2019 AN APPRAISAL OF POLYGAMY IN CONTEMPORARY FAMILY LAW PRACTICE: VALIDITY AND CHALLENGES* Abstract Polygamy is as old as the evolution of man and it is common in Africa and now seems to be the emerging trend globally. It is usually believed to mean marrying more than a wife. Polygamy has been a viable and veritable means of increasing farm productivity since farming was the predominant occupation in Africa in the past. This paper reveals that polygamy comprises of polygyny, polyandry and circle marriage system. This research further examines the validity and challenges of polygamy in family law practice with particular reference to India, Kenya, United Kingdom and Nigeria as common law countries. This research adopts the narrative analysis in analysing the validity and challenges of polygamy practice under these selected common law countries. The research therefore concludes that polygamy comprises of polygyny, polyandry and circle marriage. It further suggests that there should be an instrumentality of law especially in Nigeria to regulate, harmonize and unify all forms of marriage with issuance of recognised certificate to promote individual right to own a family and avoid conflict of laws as it was done in Kenya. Keywords: Polygamy, Validity, Challenges, Common Law 1. Introduction The history of polygamy dates back to time immemorial and it is not a fallacy to say that polygamy has been a common practice in Africa from the past1. It is prevalent in many African countries as well as in various communities all over the world2. The most widely recorded history of polygamy occurred after the beginning of widespread of agricultural practices among the early civilised countries which include; China, India, the Middle East and part of Western Europe3. This allow men *Adesoji Kolawole ADEBAYO, LLB (EKSU), BL, LLM (Ilorin), Lecturer, Department of Private and Commercial Law, School of Law and Security Studies, Babcock University, Ilishan Remo, Ogun State. Email: [email protected] Phone: 08063088358 *Fisayo Andrew BANKOLE, LLB (ABUAD), BL, LLM (ABUAD), Lecturer, Department of Public and International Law, College of Law, Afe Babalola University, Ekiti-State. Email: [email protected]. Phone: 08160593729 1 Polygamy system is as old as the customary law, which is predominant in African marriage settings. Although customary law is indigenous legal system and it varies from one community to another. Polygamy is referred to as customary-law institution governed by customary law. See E. I. Nwogugu, Family Law in Nigeria (Revised Edition, HEBN Publishers Plc, Ibadan, Nigeria 2011) page lxxii. See also, E. I. Nwogugu, Family Law in Nigeria (3rd Edition, HEBN Publishers Plc, Ibadan, Nigeria 2015) page 9. 2 James Fenske; African Polygamy: Past and Present. Available online at https://voxeu.org/article/african- polygamy-past-and-present . Visited on 12th September, 2018. See also An article on history of polygamy available online at https//www.polygamy.com/articles/24411273/history-of-polygamy. Accessed on 15th September, 2018. 3 Ibid. Page | 59 ADEBAYO & BANKOLE: An Appraisal of Polygamy in Contemporary Family Law Practice: Validity and Challenges to own vast land for farming and in view of this they needed to marry more wives in order to have more children to assist them in their cultivation.4 Polygamy has equally been traced to the United State of America though in a sporadic way to Joseph Smith5. He taught that polygamy was a divine commandment and he practiced it personally by marrying more than thirty women6. This work will discuss the concept of polygamy, a comparative polygamous marriage under the common law using India, Kenya, United Kingdom and Nigeria as case studies. The work will also unfold the validity and challenges of polygamous marriage. 2. Definition of Polygamy The term polygamy cannot be given a conclusive definition; however, it has various definitions. The term polygamy is derived from the Late Greek word „polugamos‟, which literally means „often marrying‟7. In popular speech, the term „polygamy‟ refers to the simultaneous union of a husband to multiple spouses or a practice or custom of having more than one wife at the same time.8 This meaning is technically incorrect because in the wide sense, polygamy refers to a marriage, which includes more than one partner either on the part of the husband or the wife9. Polygamy can also be defined as a state of marriage to many spouses or marriage involved with more than one spouse10. This definition as simple as it is, it does not give a clear meaning of polygamy because it does not reveal that the practice of polygamous marriage is not limited to men. Polygamy has also been defined 4 Nigel Babber; The Three Reasons for Polygamy. Available online at https://www.psychologytoday.com/us/blog/the-human-beast/201210/the-three-reasons-polygamy. Accessed on 15th September, 2018. See also; What is polygamy? Definition and history. An online article available at http.//study.com/academylesson/what-is-polygamy-definition-history-lesson-html. Accessed on 15thSeptember, 2018 5 A Mormonist and the founder of the Church of Jesus Christ of Latter-day Saints who had up to 40 wives. See an article written by Sam Sanders; Mormon Church Admits Founder Joseph Smith Had Up To 40 Wives. Available online at https://www.npr.org/sections/thetwo-way/2014/11/11/363324816/mormon-church-admits-founder-joseph- smith-had-up-to-40-wives. Accessed on 15th September, 2018 6 L. Foster. Religion and Sexuality: The shakers; The Mutinous and the Oneida Community (Oxford University Press, New York, 1981) page 223. 7 Polygamist comes from the Greek: poly- means "many" and gamos means "marriage." So by definition, a polygamist can be a man with multiple wives or a woman with multiple husbands. Available at https://www.google.com.ng/search?client=opera&rls=en&q=Greek+word+polugamos&sourceid=opera&ie =utf-8&oe=utf-8&gws_rd=ssl. Accessed on 15th September, 2018. 8 The New Webster Dictionary of the English Language (International Edition, Lexicon International- Publishers Guild Group, New York, New York 2004) pages 778-779, See also, Cambridge Advanced Learner‟s Dictionary (3rd Edition, Cambridge University Press, New York, 2010) page 1096 9 Polygamy in the real sense comprises of Polygyny, polyandry and group marriage. 10 Bryan A. Garner: Black’s Law Dictionary (10th Edition, Thompson Reuters, United State of America, 2014) page 1347. See also, What is polygamy? Definition and history. Available at http.//study.com/academylesson/what-is-polygamy-definition-history-lesson-html Accessed on 15thSeptember, 2018 Page | 60 AJLHR 3 (1) 2019 as a mating system in which an individual has more than one mate simultaneously that can either be male or female.11 This definition appears more explanatory because it shows that men do not enjoy the monopoly of polygamy12. Polygamy has equally been defined as a practice or condition of having more than one spouse, especially wife at one time.13 However, it appears from the above definition that, the broader meaning of polygamy is not captured although, it can be deduced that the central meaning of polygamy is having more than a spouse at a time. Generally, polygamy is seen as one- sided practice common to men alone without taking cognizance of the fact that polygamy is attributed to both men and women. Thus, this writer defines polygamy as a practice or custom of marrying more than one wife or husband at the same time. The reason for this definition is to clear the common mistake people make when explaining the meaning of polygamy that is a situation where a man marries more than one wife.14 It is however, important to clarify this misconception. Thus, polygamy is divided into forms: Polygyny this is where a man has multiple wives simultaneously, Polyandry is where a woman has multiple husbands simultaneously,15 and Group marriage16 Having discussed the 11 What does polygamy actually mean? Dictionary.com.blog-available at http//blogdictionary,com/polygamy-bigamy-polygamy- Accessed on 15thSeptember, 2018 12 Polygamy is often used interchangeably with polygyny, whereas, it has a broader meaning which comprises of polyandry that is, where a woman can marry more than a man simultaneously and group marriage. It must be noted polyandry practice is not allowed in Nigeria. See the case of Kpelanya v. Tsoka and Anor (1971) NNLR, 66 where the court held that under the TIV customary law a woman cannot lawfully be married to two men at the same time. 13 Mary Aderibigbe: Family Law, A friendly Guide to Right and Obligations in Marriage and the Family (Revised Edition, Godas Publishing Consult, Lagos, Nigeria, 2006) page 2. See also, Harper Douglas “polygamy only Etymology Dictionary”. Available at http//blog-dictionary,com/polygamy-bigamy- polygamy-mon to Friday Accessed on 15thSeptember, 2018 14 A more comprehensive definition of polygamy is articulated by the Law Reform Commission of Canada. In its 1985 report on bigamy, it authoritatively defined polygamy as follows: . . . polygamy consists in the maintaining of conjugal relations by more than two persons. When the result of such relations is to form a single matrimonial or family entity with the spouses, this is regarded as polygamous marriage (Law Reform Commission of Canada, 1985: 13). 15Polyandry is still practiced in parts of India, Nepal, Normadic Tibetans and Africa, as of 2014. Available at http;//www.ask.com/world/-view/countries-practice-polyandry-8bdi9551429fo1754. Accessed 16th September, 2018. 16 It is also referred to as circle marriage where the family unit consists of multiple husbands and wives (some combination of polygyny and polyandry). It exist in a situation where more than one man and woman form a single family unit and all the members of the family to the marriage share parental responsibility on any of the children arising from the marriage. Group marriage is occasionally called "polygynandry," from a combination of the words polygyny and polyandry, which describe polygamous relationships involving multiple wives or multiple husbands, respectively. The Oneida commune practiced sexual communalism and shared parental responsibilities, and in effect functioned as a large group marriage until sometime in the period 1879-1881. Nevertheless, among the cultures listed in George Peter Murdock's Ethnographic Atlas, the Caingang people of Brazil practiced group marriage most frequently as a socially accepted form of marriage. Available online at http://www.newworldencyclopedia.org/entry/Group_marriage. Accessed on 15thSeptember, 2018 Page | 61 ADEBAYO & BANKOLE: An Appraisal of Polygamy in Contemporary Family Law Practice: Validity and Challenges meaning of polygamy, this paper will go further to discuss comparative polygamy in India, United Kingdom, Kenya and Nigeria being countries under the common law jurisdiction. 3. Polygamy in India Polygamy is not alien to Indian marriage system especially the ancient Indian, though, it was not properly regulated. It was very rampant and commonly practiced by the rich merchant, warriors and feudal lords.17 In the past marriage among the Hindus was traditionally and historically meant for procreation and carrying out of obligatory duties in accordance with a person‟s duty18. The Hindu law books made provisions for polygamy and certain marriage relationships under special circumstances and not for canal pleasures purposes but for the procreation and continuation of family linage.19 In addition, the Hindu law allows a wife to marry any of her in-laws after the demise of her husband. The Hindu law further stipulates that if a man‟s wife drinks alcohol, is cantankerous, barren, wastes money, quarrelsome, begets only female children or is hostile to men, then the man may take another wife.20 However, the man must seek the consent of his wife before he can marry another woman and he cannot abandon the first wife after the subsequent marriage.21 However, the era of polygamy began to fade away after the enactment of Hindu Marriage Act of 1955 which prohibit polygamy. This Act prohibits polygamy among the Hindu, Jains, and Silks but the Muslims in India are allowed to have multiple wives.22 It appears that the prohibition of polygamy among the Hindus does not go well with some of them. Over the years, the issue of Hindu marriage remained a hot bed of legal and governmental debates in India. The controversy arose from the fact that since the Hindu laws forbids polygamy, the Hindu men have been showing increasing propensity to convert to Islam whenever they want to marry the second wife.23 However, the loophole has been settled against all potential Hindu 17 Hinduism and polygamy available at http://hinduwebsite.com/Hinduism/h-polygamy.asp visited on 15thSeptember, 2018 18 Ancient Hindu texts point out three main aims of marriage. These are dharma (duty), praja (progeny) and rati (sexual pleasure) Puja Mondal; An article on 5 Aims of a Hindu Marriage. Available online at http://www.yourarticlelibrary.com/marriage/5-main-aims-of-a-hindu-marriage-essay/436. 16thSeptember, 2018 19 Ibid. See also an online article Polygamy in Hinduism. Available at http://www.teachislam.com. Accessed on 16th September, 2018 20 Ibid 21 Ibid 22 Mishra; Marjan (2009-03-15) Chand-fizatalaq; ulerma now talk of screening-the times of india.polygamy in india. Available online at http:// www.polygamypractice in India .com. Accessed on 16th September, 2018. 23 Ibid, An instance of this is when the Deputy Chief Minister of Haryana, Chander Mohan and the Anuradha Bali, the former Assistant Advocate General of Haryana converted to Islam and adopted the names of Chand Mohammed and Fiza respectively so Mohan could marry Bali as his second wife. However, he converted back to Hinduism a while after marrying Bali and such incidence raise a concern for using Islam for polygamy. In addition to this, on the 10th of February, 2015, the Indian Supreme Court Page | 62 AJLHR 3 (1) 2019 bigamists. The position of the law now is, if any Hindu man purportedly embraced to be converted to a Muslim for the purpose of taking another wife, he will be prosecuted under the Hindu Marriage Act of 1955 and the Indian Penal code24. Bigamy for all Hindus has been ultimately outlawed; it therefore makes polygamy illegal in India for all the citizens except the Muslims who operate under the Personal Law (Shariat). It must be noted that Section 494 of India Penal code25 penalised the offence of bigamy and it does criminalise bigamy for the Hindus and a Muslim who marries the fifth wife and they may be prosecuted for bigamy. Thus, any marriage contracted in such manner while there is a subsisting legal marriage would be void and make the person guilty of bigamy which attracts 7 years imprisonment.26 However, the above provision admits some exceptions which are :Where the previous marriage has been dissolved by a court of competent jurisdiction, and Where either of the spouses for a continuous period of 7 years is absent and not been heard of by such person alive. In view of this, it is crystal clear that polygamy is not allowed in India except for the Muslims so a Hindu is not allowed to marry a second wife neither is a Muslim allowed to marry the fifth wife. Thus, polygamy is prohibited under the Indian Marriage Act except for the Muslim. It is worthy of note that the sanction attached to the commission of adultery under the India law has been revisited. Previously, if a man had sex with a married woman without the permission of her husband, he has committed a crime and he could be sent to a prison for a maximum of five years, made to pay fine or both27. However, in the recent time, the apex court in Indian ruled over a 45 page petition filed by Joseph Shine, an Indian business man who challenged the provision of Indian law which criminalized adultery against men and forbids Indian women to prosecute for adultery28. The petition was presided over by five Justices of the Supreme Court of Indian and they were of the view ruled on the issue polygamy and held that polygamy was not an integral part of Islam and justify the firing of a Ultar Predesh government employee for violating the Government Servant Rule following his marriage to the second woman. In October 2015, the Indian Supreme Court reinstated that polygamy is prohibited and is not legal in India. 24 Ibid. 25 Now amended by the Criminal Law (Amendment) Act No 13, of 2013 26 Ibid 27 See generally section 497 of Indian Penal Code which makes provision for adultery and it provides that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor”. Available online at https://indiankanoon.org/doc/1833006/. Accessed on 29th September, 2018. 28Joseph Shine vs Union Of India on 27 September, 2018, WRIT PETITION (CRIMINAL) NO. 194 OF 2017. Available online at https://indiankanoon.org/doc/42184625/. Accessed on 29th September, 2018. See also India Supreme Court scraps law that criminalizes adultery. Available online at https://www.upi.com/Top_News/World-News/2018/09/27/India-Supreme-Court-scraps-law-that- criminalizes-adultery/1431538042677/. Accessed on 29th September, 2018. Page | 63 ADEBAYO & BANKOLE: An Appraisal of Polygamy in Contemporary Family Law Practice: Validity and Challenges that the Indian law which criminalized adultery was archaic, arbitrary and unconstitutional29. Chief Justice Dipak Misra who read the judgment on 27th day of September, 2018 held that while adultery could be a ground for civil issues like divorce it cannot be a criminal offence30. 4. Polygamy in Kenya The practice of polygamy is not strange to Kenyan marriage practice and their family law. The practice of polygamy has always been part of Kenya‟s tradition and custom.31 Although, Polygyny was common but recently, a woman was able to marry two men legally.32 The Marriage Act of Kenya has given a legal backing to polygamy.33 In March 2014, Kenya‟s Parliament proposed a Bill allowing men to multiple wives.34 Though, the Bill had initially given the wife the right to veto the husband‟s choice, but the male members of the parliament overcame party division to push through a text that dropped the clause of the right of the wife to give consent to subsequent marriages of her husband35 and the Bill was made a legislation on the 1st of May 2014. The Kenyan president Uhuru Kenyatta equally described the Act as one which consolidates various laws relating to marriage, provides procedures for separation and divorce, it also regulates the custody and maintenance of children in the event of separation and divorce.36 Thus, the Kenyan Marriage Act of 2014 gave polygamy practice a legal existence when it defined marriage as the voluntary union of a man and a woman whether in a monogamous or polygamous union registered under the Act.37 Thus, the 29 Indian Supreme Court rules in favour of man who challenged Adultery Law-Decriminalises Adultery. Available online at https://www.courtroommail.com/2018/09/27indian-supreme-court-rules-in-favour-of- man-who-challeneged-adultery-law-decriminalises-adultery/. Accessed on 29th September, 2018. 30 Ibid 31 Kenya trio in wife-sharing deal BBC 26 august 2013 polygamy in Kenya retrieved from https://www.kenyamarriagelaw.com Accessed on 17th September, 2018. 32Rael Mukeku a 35-year-old woman has been married to two men, Muema Nguu (50) and Mutuku Muia (45) for 11 years now. Reported in Daily Nation on Monday, September 3, 2018. Available online at https://www.nation.co.ke/news/Rael-Mukeku-s-polyandrous-marriage-raises-eyebrows-in-Ukambani-- /1056-4740710-r9rrutz/index.html. Accessed on 17th September, 2018. 33 Kenya's parliament has passed a bill allowing polygamy without a wife's consent by Peter Martell, reported in The sudney morning herald dated 22 March 2014 — 3:45am. Available online at https://www.smh.com.au/world/kenyas-parliament-has-passed-a-bill-allowing-polygamy-without-a-wifes- consent-20140322-hvlhe.html. Accessed on 17th September, 2018. See also, President Uhuru Kenyatta signs Kenya polygamy law. Reported by BBC News dated 29th April, 2014. Available online athttps://www.bbc.com/news/world-africa-27206590. Accessed on 17th September, 2018. 34 Ibid 35 Ibid 36 The Kenyan legal system consists of a mix of Kenya Statutory law and English Common law, mixed with elements Of tribal and Islamic law:- Available online @ http://www.kenya-advisor,com Accessed on 17th September, 2018. 37 Ibid Page | 64 AJLHR 3 (1) 2019 enactment shows the incorporation of other laws regulating marriage under the Islamic and customary laws38. The Kenyan Marriage Act, 2014 defines marriage to include monogamous, polygamous, Customary, Christian, Islamic and Hindu marriage and it makes all marriage to be treated equally. It further allows all marriages to be issued certificates including the customary marriages which were initially treated as inferior marriage with no certificate.39 The new Kenyan Marriage Act legalises polygamy and equally recognises those legally celebrated abroad but do not provide an official limit on the number of wives a man can have. It flows from the illustration above that polygamy has been legalised in Kenya. 5. Polygamy in the United Kingdom In the United Kingdom, polygamy is not given a statutory flavor and is prohibited40 especially with respected to the marriages that are celebrated within the United Kingdom jurisdiction. Any marriage contracted while a valid marriage is subsisting is void ab initio and the party who has a subsisting marriage is guilty of the offence of bigamy41. In addition, if a marriage is not validly dissolved due to technicalities or for some other reasons and a party to such marriage might be guilty of bigamy if he or she contracts another marriage. Although, polygamy union celebrated in the country where it is legally allowed would be partially recognised by the United Kingdom laws for the purpose of welfare benefits and not for pension, immigration citizenship or other legally beneficial purposes.42 In addition, someone who is legally married in United Kingdom could potentially marry someone else abroad outside the United Kingdom jurisdiction which means the offence of bigamy under the United Kingdom law will not be applicable to the person provided the countries where he married the second wife does not criminalise polygamy43. Furthermore, the Immigration Rule of the United Kingdom states that a person should not be granted a United Kingdom spousal Visa if the United Kingdom sponsor is already married to someone as a husband or wife within the United Kingdom jurisdiction44. 38 The Kenyan Government has made a provision for a unified certificate for marriage conducted under the statute, Islamic and customary laws which is recognised and can be duly registered at the registry. 39 President Kenyatta assents to Marriage and Heros Bill 29 April 2014 in News, Press, Transformational Leadership/by PSCU NAIROBI, 29April 2014. 40 The Offences Against the Person Act 1861(24x25 vict.c,100) Section 57, the Criminal Justice Act of UK 1948(11x12 geo.6 c58). 41 Bigamy is an offence of marrying a second time, by one who has a former husband or wife still living and not divorced. The act of marrying one person while legally married to another and the marriage is subsisting. It is distinct from adultery and it a criminal offence if it is committed knowingly. 42 United Kingdom legally recognizes multiple Islamic wives. Available at https://www.polygamyintheunitedkingdom.com. Accessed on 17th September, 2018. 43 Talal Malik; United Kingdom Legally Recognizes Multiple Islamic Wives. Reported on 4th of February, 2008 at 05:07pm. Available online at https://www.arabianbusiness.com/uk-legally-recognises-multiple- islamic-wives-121789.html. 17th September, 2018. 44Ibid Page | 65 ADEBAYO & BANKOLE: An Appraisal of Polygamy in Contemporary Family Law Practice: Validity and Challenges Thus, it appears that a man who has married in United Kingdom cannot obtain a spousal Visa to bring a second wife into Britain. Sequel to the above, it appears that for any polygamous marriage to be allowed in the United Kingdom, none of the parties must domicile in the United Kingdom Jurisdiction as at the time of contracting the subsequent marriage while there is a valid and subsisting marriage.45 It is worthy of note that, records have shown that over 200,000 polygamous marriages are subsisting in Britain‟s Muslim communities,46 but such marriages are not recognized by the United Kingdom Laws. In the United Kingdom, polygamy is tantamount to a commission of bigamy and this is punishable with 7 years of imprisonment. However, the above provision admits some exceptions which are: Where the previous marriage has been dissolved by a court of competent jurisdiction, and Where the either of the spouses for a continuous period of 7 years is absent and not been heard of by such person alive. On this note, it can be said that polygamy is not allowed in the UK, however any legal polygamy union celebrated outside the United Kingdom would be partially recognized for welfare purposes. 6. Polygamy in Nigeria Polygamy is not strange to us in Nigeria; it is as old as Nigeria. It has been in practice for a very long time before the advent of the colonial masters who introduced their monogamous marriage to us47. Although, the rationale behind it could be because African men are believed to be polygamous in nature. In the past, African men‟s wealth can be measured by the number of wives and children they have48 because by implication it will determine their farm outputs thereby make them richer than their 45 Section 11 (d) of the Matrimonial Causes Act of 1973 (as amended) provides that an actual polygamous marriage entered into after July 31st, 1972 is void if either party to the marriage was at the time domicile in England and Wales 46 Rachel Stewar; The Men with Many Wives: the British Muslims who Practice Polygamy. Available online at https://www.telegraph.co.uk/culture/tvandradio/11108763/The-Men-with-Many-Wives-the-British- Muslims-who-practise-polygamy.html. Accessed on 17th September, 2018. See also, Polygamous marriage not legal in uk/uk/news/daily express. Available at http://www,dailyexpress.co.uk. Retrieved on 17th September, 2018. 47 Originally, the only marriage law known to Nigeria was the Customary Law which regulates the marriage practice in Nigeria usually polygamous. Monogamous system of marriage was English concept, principles and formalities of marriage which was imported to Nigeria in the 19th Century by the colonial masters. This led to the Marriage Ordinance of 1863 for Regulating Marriage in Nigeria. It was later was later replaced with Marriage Ordinance of 1914, now known as the Marriage Act of 1914. See Mary Aderibigbe: Family Law, A friendly Guide to Right and Obligations in Marriage and the Family (op cit.) page 2 48 Douglas R. White and Michael L. Burton, Causes of Polygyny; Ecological, Economy, Kinship and Warfare. Available online athttp://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=13&ved=2ahUKEwjx_dK- vNHdAhVHYxoKHXyWDuAQFjAMegQIBxAC&url=http%3A%2F%2Feclectic.ss.uci.edu%2F~drwhite Page | 66 AJLHR 3 (1) 2019 colleagues since agriculture was a primordial economic activity in Nigeria which formed the means of livelihood of the peoples and a strong factor for the rise of states and empires just as the case everywhere in the world49. Generally, in Nigeria, marriage can be celebrated under three different laws that is; under the Statute, the Customary law and the Islamic law. Polygamy is allowed under the Customary and Islamic laws50. However, the Marriage Act51 which gave birth to statutory marriage prohibit polygamy in Nigeria and makes the practice a criminal offence52. The Islamic law and indigenous customary law have cross fertilized each other. Thus, customary law allows a man to marry more than one wife53 while the Islamic law allows a man to marry up to four wives54. In addition to this, thirteen northern states in Nigeria have legalised polygamy and Zamfara state was the first to legalise polygamy under the Civil Law on the 7th of January, 200055. These Northern States practice Shariah law which has been incorporated and passed by the House of Assembly of these states respectively.56 It must be noted that there is no concrete religious requirement to have a polygamy union, thus, polygamy is not limited to the Muslim a lot of Christians too practice polygamy57. With reference to the Statute, Polygamy is not allowed especially under the Marriage Act and Matrimonial Causes Act and the combine effect of %2Fpw%2FCauses_ofPolygyny.pdf&usg=AOvVaw0iv98DmhcpKiFTAJkHNHPt. Accessed on 18th September, 2018. 49 Ugwuoke Joseph; Agriculture In The Precolonial Era Of Nigeria: Forms, Importance, Problems And Solution To The Modern Days. Available online at http://academicpower.blogspot.com/2018/01/agriculture-in-precolonial-era-of.html. Accessed on 18th September, 2018. 50 Qur‟an 4:3 provides “if you fear you shall not be able to deal justly with orphans, marry woman of your choice, two three, or four, but if you fear that you shall not be able to deal justly (with them), then (marry) one....” 51 Marriage Act Cap 218 Laws of the Federation of Nigeria 1990 52 Section 39 of the Marriage Act which provides that whoever unmarried, goes through the ceremony of marriage under this Act with a person whom he or she knows to be married to another person, shall be liable to imprisonment for five years. 53 E. I. Nwogugu, Family Law in Nigeria (Revised Edition, HEBN Publishers Plc, Ibadan, Nigeria 2011) page lxxii. 54 Ibid. Although, there are many Muslims in all the parts of the country but Islamic law is predominant is the Northern part of the country. 55 Sharia development in Nigeria. Available online at www.socialtheology.com Accessed on 17th September, 2018 56 The states include; Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Kastina, Kebbi, Niger, Sokoto, Kano, Yobe and Zamfara. 57 There were many Kings in the Bible who married many wives such as King David and King Solomon who had 700 wives of royal birth and 300 concubines. Although, it has been argued that King Solomon married many wives to secure peace with the neighboring Nations. See generally 1 King Chapter 11. Page | 67 ADEBAYO & BANKOLE: An Appraisal of Polygamy in Contemporary Family Law Practice: Validity and Challenges sections 3 (1) (a) of the Matrimonial Causes Act58 and section 39 of the Marriage Act59 prohibit polygamy in Nigeria see also the case of Nwankpele V Nwankpele.60 7. Validity of Polygamy under the Selected Common Law Countries The validity of polygamy varies from state to state. In some jurisdictions, it is totally outlawed while it is not in other jurisdiction. Polygamy is allowed to operate under the customary law and religious law i.e. the Islamic law. However, for the purpose of this paper the validity will be considered under the common law countries discussed above. Under the Hindu Marriage law, polygamy is forbidden for the Hindus, Jains and Sikhs but the Muslims are allowed to legally marry up to four wives while any attempt to marry the fifth wife would criminalised. It appears that the Indian law recognises polygamous marriage legally celebrated outside the jurisdiction. In the United Kingdom, polygamy is outrightly prohibited and anyone who practices such would be charge for the offence of bigamy. However, the United Kingdom law on marriage recognises any polygamous union that is legally celebrated outside before coming to the United Kingdom provided any of the parties was not domicile in the United Kingdom as at the time the subsequent marriage was conducted. In addition to that, the recognition given to such polygamous union is basically for welfare and not for any other benefits available for other United Kingdom citizens. The validity of polygamy under Kenya Marriage law is in affirmative. Polygamy has always been part of Kenya custom and this has been further buttressed by the passage of the Marriage Act in 2014 which defined marriage to include monogamous, polygamous, customary, Christian, Islamic and Hindus marriage and it furthers states that certificate should be issued to all the forms of marriage stated in the Marriage Act including the customary marriage. The validity of polygamy in Nigeria is not straight jacketed, thus polygamy is prohibited under the statutory marriage and makes it a criminal offence which attracts a number of years of imprisonment61. This position differs under the customary law and the Islamic law. Under the 58 Section 3 (1) (a) of the MCA make a marriage that takes place when either of the parties is at the time of marriage lawfully married to some other person void. 59 Section 29 of Marriage Act op. cit 60 (1973) 3 UILR 84 61 See Section 46 of the Marriage Act Chap M6, LFN, 2010. “Whoever contracts a marriage under the provisions of this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years”. See also Section 47 of the Marriage Act Chap M6, LFN, 2010 “Whoever, having contracted marriage under this Act, or any modification or re-enactment thereof, or under any enactment repealed by this Act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years”. It must be noted that the Marriage Act did not mention bigamy but a cursory perusal and joint reading of Section 370 of the Criminal Code Chap C38, LFN, 2010 with Sections 36 and 37 of the Marriage Act stated above give a better understanding to the term bigamy. Thus, Section 370 of the Criminal Code provides that “Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason Page | 68 AJLHR 3 (1) 2019 customary law, a man can marry more one wife without any restriction on the maximum number but under the Islamic law a man can marry more than one wife as well but must not be more than four. Thus, the validity depends on the type of the law regulating the marriage conducted. Argument in Support of Polygamy Polygamy could be said to have come with its own benefits and these are some of the points in support of polygamy: to protect against moral and spiritual maladies and abuse of womanhood; for procreation of children in an orderly manner to enhance growth and control infant mortality; to protect the orphans and avoid divorce of women who are barren; to provide another chance for the woman whose early marriage has collapsed and are willing to have another trial; to provide husband for the widows who have not passed the age of marriage, and to have more security and support for labour and wealth through the bride price of the female children. Arguments against Polygamy Having listed some of the points in support of polygamy practice, there are some other reasons why polygamy system should not be encouraged such as: It may increase domestic violence; it may encourage early marriage among younger females; it may affect parental motivation and supervision of their children, and it can increase poverty prevalence. 8. Challenges of Polygamy Polygamy as much as it is embraced by some people especially in Africa came with its own legal challenges which are but not limited to what will be discussed under this sub-heading. One of the areas where polygamy can pose a legal challenge is with respect to conflicts of laws on the marriage. Polygamy is not allowed under the common law, although it is not a gain saying that people still practice it in Common Law Countries under their customary and religious law respectively62. Thus, a country that practices plural legal system is likely to experience conflict among the plural laws in operation63. A clear example is in Nigeria where our Constitution recognises Customary and Islamic laws which allows polygamy and it is this same Constitution that validates the Marriage Act which prohibits polygamy64. Furthermore, the Marriage Act does not allow polygamy but in a situation of its taking place during the life of such husband or wife, is guilty of a felony, and is liable to imprisonment for seven years”. 62 Nigeria is a very good example because we practice common law which prohibits polygamy or bigamy but our customary and Islamic law allows it. 63 A close example is the case of some Hindu men who converted to Islam for the purpose of marrying more wives and later re-converted after they had married more than one wife. 64 It appears that the Islamic law and Customary law enjoy the statutory flavor of the provision of Section 315 of the 1999 Constitution of the Federal Republic of Nigeria as (Amended) to be part of the existing law on the ground of consistency with the Constitution. Section 315 of the constitution provides that “Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be Page | 69 ADEBAYO & BANKOLE: An Appraisal of Polygamy in Contemporary Family Law Practice: Validity and Challenges where some states have made Sharia law part of their laws giving polygamy a legal backing, then people who wish to practice polygamy might hide under the State laws as against the Act to marry more than a spouse. For instance, the 12 northern states in Nigeria who have legalized Sharia law made polygamy legal under their various State laws. The conflict of law is not limited to the contrast between internal laws alone; it can also be inferred from some International Treaty. Most of the Treaties signed at the international level are meant to promote equality of men and women and in the light of this it can be inferred that this equality also poses some threats to matrimonial matters.65 Some of these International Treaties have been domesticated in Nigeria which might invariably contradict some of our national laws that allow polygamy in Nigeria such has CEDAW, UDHR etc. Although, the researcher is aware that those Treaties are not enforced on the member states, yet attempts have been made to stop polygamy and promote fundamental right and discrimination against women. In several parts of Africa, polygamy is not only a marriage of choice but a value system that inspires and shapes family relations. As a value system, it has been in constant tension with and is resilient to imported marital ideology of monogamy66. Thus, polygamy may warrant a breach of fundamental right of a person to social life and the right to own a family.67 Generally, both international and domestic laws recognize the right of a man to enjoy his private life without any unreasonable interference and also a right to own a family68. It then boils out that, if a man has a right to is private life, then he should equally have the right to conduct his family in such manner he wants rather than be confined within the purview of what the Statute stated. By way of juxtaposition, the perception and incidence of polygamous union in Western countries is totally different from what is obtainable here in Africa69. Polygamy system has always been part of African culture, system, value, norm and general way of life in which Nigeria is not excluded. It is worthy of note that before a purported foreign law is domesticated, the possibility of its effectiveness and the purpose of its enactment should necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be…”.The same Constitution gave a life to the Marriage Act. 65An example is the Universal Declaration of Human Right (UDHR), Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) African Charter on Human and Peoples‟ Right. 66 Obonye J. “The practice of polygamy under the scheme of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa: a critical appraisal” A Journal of African Studies and Development Vol. 4(5), pp. 142-149, July 2012 Available online at http://www.academicjournlas.org/JASD. Accessed on 17th September, 2018. 67Sections 37 and 38 of the Constitution of the Federal Republic of Nigeria 1999 as Amended provides for the right to private and family life and right to freedom of thought, conscience and religion respectively. 68 See generally Section 37 of the 1999 Constitution of the Federal Republic of Nigeria as (Amended) provides that “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected. 69 Polygamy is part of our heritage in Africa, most times it can be termed as our norms, and it is our usual way of life. However. In the Western world it is close to abomination, highly prohibited. When we inherited the Marriage Ordinance from our Colonial Master, which metamorphosed to the present Marriage Act, we ought to have checked whether the imported law will have a fertile soil to germinate in our African system. Page | 70 AJLHR 3 (1) 2019 be considered after all is not every fruit that is brought from abroad will germinate well here in Nigeria.70 The question now is, should an English law which is not in conformity with our custom override our indigenous value, norms and culture? The view of the writer of this work to this question is not in affirmative because in Africa our rights, customs, indigenous norms and values should be preserved and guided at all levels. Thus, the position of Section 39 of the Marriage Act which provides for the term of 5 years imprisonment might be a restrain of the full enjoyment of sections 37 and 38 of the Nigerian Constitution respectively. Thus, putting a man in prison for marrying the second wife all because of an English law is uncalled for because the issue of bigamy is also a restriction on the practice of polygamy provided such a man has the means to maintain and provide for his family. Although, this researcher is aware that the customary and Islamic law allow polygamy practice but this assertion is channeled towards the provision of the Marriage Act which forbids a subsequent marriage and that is tantamount to the prohibition of polygamy. Another legal challenge associated with polygamy is discrimination. Discrimination in the sense that women are streamlined when it comes to polygamy issues. Most men marry more wives without consulting their wives. However, the reverse is the case even when a woman is merely suspected to be having extra-marital affairs not to talk of marrying two men. What a patriarchal world! The United Nation General Assembly‟s (2001) declaration of commitment on HIV/AIDS included a goal to ensure the implementation of national strategies for women‟s empowerment, the promotion of women‟s full enjoyment of all human rights and reduction of their vulnerability to HIV/AIDS through the elimination of all forms of discrimination, as well as all forms of violence against women and girls, including harmful traditional and customary practices such as polygamy.71 This discrimination is intertwined with gender inequality between men and woman. Polygyny is rampant in practice whereas polyandry is seen as a forbidden act among many societies and aside the fact that polyandry is not common, any woman who intends to practice it would be seen as an outcast. The question that crosses the mind of these researchers is, when talking about gender equality and non-discrimination both at the national and international level; be it as it may, would it be right for a man to take a second wife while the first marriage still subsists? If yes, then what makes it difficult for a woman to marry more than one man in exercising the right under gender equality? However, the possibility of allowing a woman to marry more than a man in reality is not envisaged by the researcher especially in Africa except on a very rare occasion. Although, it appears that polyandry practice is not encouraged in India but it is practice in some parts of India72. Discrimination on marriage practice is not limited to women alone; this can also be observed from the angle of the current trend in marriages celebrated in the western countries against men who practice polygamy. Men with more than a wife 70 Ibid 71 J. Obonye, op. cit. 72Polyandry is still practiced in parts of India, Nepal, Normadic Tibetans and Africa, as of 2014. Available at http;//www.ask.com/world/-view/countries-practice-polyandry-8bdi9551429fo1754. Accessed 17th September, 2018. However, an instance of polyandry has been reported in Kenya. Page | 71 ADEBAYO & BANKOLE: An Appraisal of Polygamy in Contemporary Family Law Practice: Validity and Challenges are treated differently,73 this is more rampant in the United Kingdom irrespective of whether the domestic law of the place of celebration legalize it or not. Furthermore, the societal perspective on the issue of polygamy cannot be over looked. Some people criticized polygamy on the basis of religion which may be variably inconclusive because religion is not a criteria for practicing polygamy. Recently, there are moves by some people campaigning that polygamy should be legalized in the United States.74 They based their argument on the fact that, since same sex marriage has been legalized, based on the rights claimed by those practicing it, then it behooves a kind of second thought on the United States Parliament to pass laws that will allow polygamy to be practiced. Although, in Nigeria, polygamy is allowed under Islamic and Customary law however, for a particular practice to be legally allowed it has to be rational and logical in nature and this writer does not think that if polygamy is statutorily legalised it will fall into an irrational category. Having discussed the challenges of polygamy, the issue that cuts across the mind of this writer is whether there can be one unified law that will regulate marriage and give it equal status in Nigeria? Flowing from what has been discussed in this paper, the common law prohibits polygamy and this is at variance with Islamic and Customary laws. As a result of this, different views, rights and duties are conferred on the marriage celebrated under any of the three. The writer of this paper is of the opinion that, this could be the reason some people celebrate double deck marriage or multi-tier marriage with the hope of fulfilling all righteousness forgetting the fact that, each of the practice has its own legal implications. The authors are aware of the fact that, it might be difficult, because of the difference in Common, Customary, and Islamic law, the legal validity and implications, right and duties and the procedure for a valid celebration of the marriage under the different laws respectively. Marriage under the common, Islamic and Customary laws can be unified by giving it legal backing and issue certificates respectively. This writer is of the view that it is possible, only that it might take a slow process for it to be effectively achieved. Practically, the Nigerian Marriage Act which prohibits another marriage while there is a subsisting one, made provides for the punishment of 5years 73 See the case of Brown v Buhman citation omitted but it is a case on bigamy in Utah and can further be buttressed by the comment made that ”there are tens of thousands of plural families in Utah and other states. We are one of those families. We only wish to live our private lives according to our beliefs. While we understand that this may be a long struggle in court, it has already been a long struggle for my family and other plural families to end the stereotypes and unfair treatment given consensual polygamy. Together we hope to secure equal treatment with other families in the United States”. Available at "Brown Family Challenges Utah's Polygamy Law". jonathanturley.org. Accessed on 17th September, 2018. 74 Ibid., These bans are now being challenged as a violation of the rights of liberty, equality, privacy, sexual autonomy, and (for some) religious freedom. Indeed, Professor John Witte, Jr. contends that polygamy laws will likely become the next hot legal topic on the contested borderlines between constitutional law, family law, and religious freedom. The Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor, has written on it. Available at [email protected] Accessed on 17th September, 2018. Page | 72 AJLHR 3 (1) 2019 imprisonment for anyone who contracts another marriage while there is a valid and subsisting on75, but the question that begs for answer is how many Nigerians who violated this provision have been convicted? It will only take the legislature the burden to see the possibility of abridging all the laws together and reenact them. Currently in Nigeria, 12 states out of the 36 states have legalized polygamy in their various States laws since they incorporated sharia law into their state laws. In addition to this, a unified law on marriage has been tried in Kenya and it was successful. Presently in Kenya, all the types of marriages have been unified and they have a common ground, they can be registered and a certificate will be issued to the parties irrespective of the type of marriage conducted. In Nigeria, the constitution derives its sovereignty from the people, after all, the Nigerian Marriage Act which prohibits polygamy was adopted from the white men and of which our law drafting men failed to think about the workability and the effectiveness of the domestication before they adopted it hook line and sinker. It is unfortunate that the law has not really found a fertile land to germinate and grow well in many African countries. This writer is of the opinion that it is possible to have a unified law in Nigeria that will regulate all the types of marriages we have and also accommodate them with respect to the validity, obligations, duties and rights of the parties involved just like how it has been achieved in Kenya. Another question that might beg for an answer again is that if all the types of marriages are allowed in Nigeria which majorly comprises of polygyny & polyandry and circle marriage, would polyandry be allowed to avoid inequality? Well, this question is for the future to decide when we reach that level. 9. Conclusion Polygamy is not a novel concept both in the western world and here in Africa. In fact, in Africa it is part of our culture and tradition and equally recognized by the indigenous laws in Africa i.e. various customary laws. This work has been able to discuss polygamy in the comparative family law, by discussing polygamy under four countries operating under the common law. The study has revealed that, polygamy is prohibited in United Kingdom, in India it is prohibited for the Hindu, Jains, and Silks but allow the Muslims to practice polygamy under their personal law „Shariah‟. In Nigeria, polygamy is equally not allowed under the common law but under the customary and Islamic law it is allowed. However, in Kenya polygamy is legalized under the Kenyan Marriage Act 2014. The work further discusses the validity of polygamy in the countries under review and the challenges of polygamy such as inequality, breach of fundamental right and conflicts of laws issues. The paper further raised an issue on the possibility of making a unified law in Nigeria to regulate all the forms of marriage with issuance of recognised certificate to promote individual right to own a family and avoid conflict of laws as it has been tested in Kenya. 75 Op.cit See (n) 57 Page | 73 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? THE INTERNATIONAL SEABED AS COMMON HERITAGE OF MANKIND: HOW COMMON FOR THIRD WORLD COUNTRIES?* Abstract Under the United Nations Convention on the law of the Sea (UNCLOS), 1982 the international seabed area was declared Common Heritage of Mankind by the international community. The area was to be collectively developed and the resources thereof exploited for the benefit of mankind as a whole. This paper critically examines the extent to which the international seabed has actually been common heritage of mankind with respect to Third World countries over three decades since the adoption of UNCLOS. It argues that events and developments in the post-adoption years have created doubts as to the place of the Third World in the development of the international seabed supposed to be common heritage of mankind. Considering the obvious handicap of Third World countries with regard to deep seabed mining technology, the huge capital requirement and technical know-how, the paper makes a case for the need for fairness, justice and inclusiveness in resource development and distribution in this supposed common resource areas of the oceans. Keywords: International, Seabed, Common, Heritage, Mankind, Third-world 1. Introduction The Global Commons are areas of the globe designated by the international community as falling outside national jurisdiction and the resources of which, therefore, are not amenable to appropriation by any state. Presently these areas are Antarctica,1 the outer space2 and the international seabed.3 Such areas and their resources are considered Common Heritage of Mankind (CHM). This means that whatever resources available in these common areas are the common property of all mankind and are not subject to the exclusive ownership of any state. The CHM principle was thus conceived for the *Vincent I. IWUNZE, LLB (Hons), BL, LLM, PhD, University Of Uyo, Nigeria, Phone Contact: +2348034370314. E-MAIL ADDRESS: [email protected]. Contact/Mailing Address: Paramount Attorneys, 16 Utang Street, Uyo, Akwa Ibom State, Nigeria. 1There have been recommendations that the common heritage approach be considered in a future international design for Antarctica. See, for example, U.N. Doc. A/C/1/38PV.2 (1983), 38th Sess., 1st Comm., Summary Record of the 42nd Mtg. (particularly the comments of Mr. Abidin of Malaysia). 2Art. 11 of the 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 5 Dec. 1979, 1363 U.N.T.S. 3 explicitly incorporates the principle of common heritage. 3Art. 136 of UNCLOS provides that the international seabed and its resources are the common heritage of mankind. J Frakes, „The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space and Antarctica: Will Developed and Developing Countries Reach a Compromise?‟ (2002) Wisconsin International Law Journal, 409–434. Page | 74 AJLHR 3 (1) 2019 internationalisation of common spaces beyond the limits of national jurisdiction.4 With respect to ocean governance, the Commons of the Seas are those submarine land areas of the seas agreed by nations to lie beyond the limits of national jurisdiction. They are the submarine land areas extending beyond the outer limits of the continental shelf of coastal states.5 These areas constitute the international seabed, which, under the United Nations Convention on the Law of the Sea, 1982 (UNCLOS),6 is called the “Area”.7 Article 136 of UNCLOS provides that „[T]he Area and its resources are the common heritage of mankind.‟ Under article 137(1), „[N]o state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any state or natural or juridical person appropriate any part thereof.‟ Although the CHM principle has also been discussed by nations with regard to Antarctica, and the outer space, it is with respect to the international seabed that it has found its fullest exposition so far.8 This is as a result of the discovery in the 19th century that the seabed and ocean floor of that part of the seas hold enormous quantities of various mineral resources.9 These resources, it was then believed, would play crucial roles in world economy in the future, especially when land-based, non-renewable minerals begin to decline. Considering the enormity of wealth anticipated to accrue from the international seabed area, the developed nations of the world which had the technology to exploit this wealth could not wait to commence exploitation. On the other hand, third world nations which lacked the requisite technology to explore and mine the deep seabed felt that they would be denied a share in this wealth of the oceans located outside state jurisdiction. The latter nations therefore took and advanced the view that the mineral resources of the international seabed were common heritage of mankind, belonging to all nations. At the Third United Nations Conference on the Law of the Sea (1973-1982),10 third world 4E Franckx, „The International Seabed Authority and the Common Heritage of Mankind: The Need for States to Establish the Limits of their Continental Shelf‟ (2010) 25 International Journal Of Marine And Coastal Law, 544. 5Under art. 76(1) of UNCLOS, the continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. A state may, however, under art. 76(4) and (5) establish a continental shelf in excess of 200 nautical miles where its shelf naturally extends beyond the 200-mile limit, provided it does not exceed 350 nautical miles measured from the baselines from which the breadth of the territorial sea is measured. 6The Convention was adopted on 10 December 1982 at Montego Bay, Jamaica by 130 votes to 4 with 17 abstentions, and entered into force on 16 November 1994, a year after Guyana became the 60th signatory: MN Shaw, International Law (5th Ed, London: Sweet and Maxwell, 2003) 492. 7Under art. 1(1) of the Convention the „Area‟ is defined as „the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.‟ 8E Franckx (n. 4) p. 545. 9 The discovery was made by the Challenger Expedition of 1872-1876. See note 12 below. 10The Third UN Conference on the Law of the Sea was convened in 1973 pursuant to UN General Assembly Resolution 3067 (XXVIII) of 16 November 1973. It held 11 Sessions from 1973 to 1982 with Page | 75 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? nations pressed hard their position, and, like many other positions they advanced at the Conference,11 succeeded in pushing through the argument that the international seabed and the resources thereof are the CHM. In this paper, the author critically examines the extent to which the international seabed has indeed been common heritage of mankind in relation to Third World nations who lack both the huge capital and cutting-edge technology needed to explore and mine the deep seabed and the ocean floor. In three main parts, it emphasises the economic importance of the international seabed, extensively examines the CHM principle, and interrogates the reality of the principle in relation to the Third World. 2. Economic Significance of the International Seabed It is the enormous mineral resources of the international seabed that made that part of the oceans of economic importance to nations today. The earliest discovery that the deep seabed and ocean floor is laden with valuable mineral resources was made in the 19th century during the Challenger Expedition12 of 1872-1876. That expedition made the important discovery that nature also deposited minerals in the seabed and on the seafloor as it did on earth. It found potato-sized manganese nodules scattered on the seafloor in the abyssal plains. These manganese nodules contain metal ores used in diverse industrial applications. The discovery gave rise to curiosity among nations as to the possibility of mining these nodules, located, according to Allsopp et al, at water depths of 4000 – 5000 metres.13 The curiosity engendered by this discovery was, however, soon to wane due to lack of technology to mine manganese nodules at such water depths. In the 20th Century, interest was renewed among the industrialised countries which had by then developed certain technologies for reaching the seafloor. This resurgent interest, according to the Global Ocean Commission, dampened again after the 1970s, as a result of a collapse in world metal prices and a relatively easy access to minerals in the 160 states participating: United Nations, Third United Nations Conference on the Law of the Sea, 1973- 1982. Page | 76 AJLHR 3 (1) 2019 developing world.14 Decades later, however, there has been new interest in deep seabed mining, driven mainly by a combination of technological advances in deep-sea mining technology; a dramatic increase in demand for metals fuelled primarily by emerging economies; rises in prices of metals globally; a decline in the grade of land-based metals; and an increased demand but reduced supply of rare-earth minerals.15 It is now globally accepted that the seafloor holds an enormity of these minerals. Putting things in perspective, one writer points out that since land represents only 30 percent of the earth‟s surface while 70 percent is submerged under water, it follows that 100 percent of current mining is done terrestrially on only 30 percent of the earth‟s surface while 70 percent remains untouched on the seabed.16 In more specific terms, Mitchell et al write that nearly 1.5 trillion tones of mineable manganese exist on the ocean floor, representing nearly limitless supply of metal for global consumption.17 So much is the quantum of mineral deposits in the international seabed that it has been said that a square kilometre area around the site with the highest concentration of these minerals holds a cache equivalent to one-fifth of the current annual demand for them.18 The importance of deep seabed minerals lies in the fact that they find use in numerous industrial applications for both commercial and military purposes. Uses to which these minerals could be put include the making of disk drives, fluorescent lamps, magnets, lasers, X-ray tubes, fibre optics, switches, liquid crystal display of television and computer monitors, roofs and pipes.19 These minerals become the more important when it is considered that their terrestrial supply is greatly limited and running out. China currently produces 97 percent of available rare-earths but has put a cap on the quantity exportable, causing prices to soar.20 Despite the fact that these minerals are in short supply, demand for them is said to have leapt from 30, 000 tonnes in the 1990s to about 120, 000 tonnes by 2010, in excess of the world‟s annual production of 112, 000 tonnes.21 The increasing importance of these minerals is also boosted by the dwindling supply of terrestrial copper – a key ingredient of industrialisation used in everything from wires and switches to pipes and roofs, which has caused 14Global Ocean Commission, „Strengthening Deep Seabed Mining Regulation‟, Policy Option Paper presented at the Third Meeting of the Global Ocean Commission, 1 November, 2013. 15Ibid. 16W Tarere, „Deep-sea Mining to Drive Green Growth and Economy‟ Vanatu Daily Post, July 6, 2013. Page | 77 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? miners to go after increasingly low grades of ore.22 With the shortage of such important industrial metal as copper, the necessity of mining manganese nodules which contain high quality copper in the international seabed cannot but be a global imperative. 3. The Common Heritage of Mankind Principle The common heritage principle is regarded as one of the most important agreements reached by states that participated in the Third United Nations Conference on the Law of the Sea. The importance accorded the principle during the Conference prompted the Canadian Ambassador at the Conference to describe it as „quite possibly the greatest of any principle or ideal which [would] emerge from the Conference.‟23 As already stated, the basic idea behind the common heritage principle is that the international seabed area and the resources thereof are the common property of mankind. This position remains the same even where one state had risked its own capital and deployed its own technology and know-how exclusively in the exploitation of the resources. The resources thereby won remain the common property of all nations, liable to be distributed on equitable basis. In fact, a Third World scholar took the principle to another level when he argued that even technology developed by any state for the purpose of developing the international seabed area should also be considered common heritage of mankind and should be made available to all states.24 It is not clear the very provenance of the CHM principle. Noyes has, however, traced the earliest origins and antecedents of the principle to the legal public trust doctrine and precepts of Roman law applicable to common space resources, and to religious and natural law underpinnings.25 For example, all religious traditions, according to the author, emphasise the promotion of peace and the resolution of disputes; the importance of generosity, of sharing of wealth with the poor and the unfortunate, even if they have not earned it.26 Judeo- Christian, Islamic and Buddhist traditions, the author further points out, all support the notion of human stewardship on earth, with responsibilities owed to future generations.27 With regard to its application to the law of the sea, scholars unanimously trace the common heritage principle to an influential speech delivered by Ambassador Arvid Pardo of Malta at the U.N. General Assembly in 22 WJ Broad, (n. 19) 23Statement by the Canadian Ambassador, Mr. A. Beesley, Third United Nations Conference on the Law of the Sea, Plenary Meetings, 130th Meeting, 28 July, 1980. 24MA Sayar, „Is Technology a Common Heritage of Mankind?‟ Page | 78 AJLHR 3 (1) 2019 August 1967.28 In that speech Pardo opined that the seabed and ocean floor are common heritage of mankind and should be used and exploited for peaceful purposes and for the benefit of mankind as a whole.29 He reminded the world of the resource potential of the seabed beyond the limits of national jurisdiction and warned that those resources created basic political problems that the world could no longer avoid. Pardo proposed the recognition of those resources as constituting CHM from which all states were entitled to benefit. Such recognition, in Pardo‟s view, would in particular, obviate the possibility „that technological capacity would determine which countries acquired the sea‟s wealth.‟30 Pardo entertained fears that if the exploitation of the resources of the seabed was left unregulated to the technological capabilities of states, then the rich nations would get richer, while the poor ones would get poorer. Conceptual Basis of the Principle What then is the conceptual basis of the CHM principle in the law of the sea? What features or contents constitute the essence of the principle? There are as many opinions as there are authors when it comes to the content of the concept.31 Holmila maintains that „there is no coherent concept of CHM which tells the international community the „do‟s and don‟ts‟.32 In fact, for him, „there are many disputed issues in relation to the nuts and bolts of the concept.‟33 While one author has described the concept as „interpretively prismatic and metaphysical‟,34 another considers it to be „more an underlying philosophy but does not give indications concerning the formal or substantive contents of a 28 A Cassese, „International Law in a Divided World, 379, 384 in (1988); Peter. M. A. Kiss, The Common Heritage of Mankind: Utopia or Reality‟ in H. Caminos (ed), Law of the Sea (Netherlands: Martinus Nijhoff, 2001) pp. 423-441; PM Leitner, „A Bad Treaty Returns: The Case of the Law of the Sea Treaty‟ Page | 79 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? legal regime in a general use.‟35 For Ballah, however, the whole concept is founded upon and revolves around two main elements – ownership by all, and non-appropriation by any.36 Wolfrum,37 Noyes,38 Holmila39 and Guntrip,40 in their respective analyses have articulated the conceptual underpinnings of the common heritage principle to include (i) the prohibition of acquisition or exercise of sovereignty over the Area or resources in question; (ii) the vesting of rights in seabed resources in humankind as a whole; (iii) the reservation of the seabed area for peaceful purposes; (iv) the protection of the natural environment; (v) the equitable sharing of benefits associated with the exploitation of deep seabed resources, paying particular attention to the interests and needs of developing states; and (vi) the governance of the deep seabed through a common management regime. Holmila thinks that the prohibition of exercise of sovereignty or jurisdiction by a state over the international seabed is the most important principle governing the CHM ideology and it is from this principle that other principles could derive.41 He argues that it is impossible to claim sovereignty or jurisdiction over a common heritage of mankind since that would be a contradiction in terms, and will be destructive to the whole concept.42 Noyes for his part sees the exclusion of the exercise of sovereignty in the CHM principle as a radical departure from the concept of high seas freedom, which permits individual acquisition of resources from the high seas. 43 Vesting of rights in the resources of the international seabed in humankind as a whole connotes that the CHM principle is opposed to appropriation otherwise than for the benefit of all mankind. Holmina explains, however, that the principle against appropriation is not absolute; it prohibits only appropriation without international supervision.44 That is to say that the CHM concept is not really against appropriation of the resources of the deep seabed by an individual state, but against appropriation by a state without U.N. imprimatur. The equitable sharing of benefits content of the principle implies distributive justice in the exploitation of deep seabed resources. It has been described 35N Matz-Luck, „The Concept of the Common Heritage of Mankind: Its Viability as a Management Tool for Deep Sea Genetic Resources‟ in O Elferink & EJ Molinaar (Eds), The International Legal Regime of Areas Beyond National Jurisdiction: Current and Future Developments (The Netherlands: Martinus Nijhoff Publishers, 2010) p. 65 36 L Ballah, „The Universality of the 1982 UN Convention on the Law of the Sea: Common Heritage or Common Burden? in N Al-Nauimi & R Meese (Eds), International Legal Issues Arising under the United Nations Decade of International Law (The Netherlands: Springer, 1995) p. 344. 37R Wolfrum, „The Principle of the Common Heritage of Mankind‟ Max-Planck-Institut Für Ausländisches Öffentliches Recht Und Völkerrecht, pp. 216-324 38JE Noyes, (n. 25) pp. 450-451 39 E Holmina (n. 31) pp. 195-202 40E Guntrip, „The Common Heritage of Mankind: An Adequate Regime for Managing the Deep Seabed?‟ 4 Melbourne Journal of International Law, 376-405. 41 E Holmina (n. 31) at 195. 42 Ibid at 196. 43JE Noyes (n. 25) p. 451 44E Holmina (n. 31) p. 197 Page | 80 AJLHR 3 (1) 2019 by Noyes as the most novel and most controversial of all the elements of the concept.45 This, according the author, is due to the dichotomy of perspectives between the developed and the developing countries regarding the propriety or otherwise of the common property rights entrenched in UNCLOS in respect of the deep seabed. For him this element is not only limited to the sharing of benefits or proceeds derived from deep seabed resources exploitation, but may also encompass the sharing or broadening of the base of knowledge about resources in the international seabed.46 The element of protection of the natural environment refers to the preservation of the commons of the seas for present use and for the use of future generations. To the preservation of the common areas of the seas Shackelford has added the avoidance of a „tragedy of the commons‟ scenario.47 Tragedy of the commons suggests that „unrestricted access to a resource ultimately dooms the resource to overexploitation.‟48 Also controversial about the CHM concept is the element of common management of the international seabed. While developing countries support common management under a supranational body, developed countries prefer leissaz faire in resource exploitation in the Area. Management is, however, vested in the International Seabed Authority (ISA) established in 1994 pursuant to article 156 of UNCLOS. With the vesting of the power of control and regulation of the international seabed on an international body, can a state carry out resource exploitation activities in the deep seabed outside the control of such body? Wolfrum thinks that each state may decide how to ensure that activities subject to the principle are carried out for the benefit of all mankind.49 To this end, each state, according to the author, retains discretion whether to achieve this objective by refraining from unilateral, in favour of joint activities, by seeking cooperation on a bilateral or multilateral basis, or by distributing revenues or information.50 For Groves, a state could legally mine the deep seabed outside the U.N. framework so long as it does not infringe upon the rights of others to also do so.51 The right to mine the deep seabed, according to him, is recognised under customary international law as part of freedom of the high seas. He further argues that nations cannot by their own agreement take away the rights of third parties who are not parties to such agreement. According to the author, the U.S., through domestic law and bilateral agreements has established a legal framework for mining the deep seabed without the necessity of ratifying UNCLOS.52 Wolfrum and Groves may be correct in their legal analyses, at least theoretically speaking. It is, however, submitted that giving practical support to their position will produce difficulties that will transcend the deep 45JE Noyes (n. 25) p. 451 46Ibid 47JE Jones (n. 25) p. 104 48Ibid 49R Wolfrum (n. 37) pp. 334-335. 50Quoted in JE Noyes (n. 25) p. 453 51S. Groves, „The U.S. Can Mine the Deep Seabed without Joining the United Nations Convention on the Law of the Sea‟ Page | 81 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? seabed. It will have adverse implications for other international arrangements that seem to, justifiably in this writers view, curtail high seas freedom. Any acceptance of their position by nations will render useless, for example, the United Nations Fish Stocks Agreement (UNFSA), 1995.53 Under the Agreement, states are encouraged to establish Regional Fish Management Organisations (RFMOs) for the purpose of managing straddling fish stocks and highly migratory fish species. A RFMO can, under the UNFSA, restrict fishing or fishing gear type in certain areas of the high seas at certain times. This would be impossible if the principle of high seas freedom were to connote such untrammeled freedom as Wolfrum and Groves seem to attribute to it. The United States, France, Italy, Japan, the United Kingdom, and the former West Germany enacted domestic seabed mining legislation during 1981–1983 under which they planned to unilaterally mine in the deep seabed area. As reciprocating nations, in September 1982, the United States, France, the former West Germany, and the United Kingdom adopted an agreement „to facilitate the identification and resolution of conflicts‟ that may arise between the four nations with respect to overlapping claims to the seabed.54 In August 1984, the four parties to the September 1982 agreement entered into another agreement with Belgium, Italy, Japan, and the Netherlands that further elaborated on mutual cooperation regarding the exploitation of the deep seabed on unilateral basis.55 Despite all these, none of these countries have embarked on a unilateral mining of the deep seabed yet. Developed-Country/Developing-Country Conceptual Dichotomy Although both the developed and Third World countries that participated in the third Law of the Sea Conference accepted the idea that the deep seabed was CHM, they interpreted the principle differently. For the developed nations, the principle meant that „the seabed and ocean floor and resources thereof could be explored and exploited freely for its benefit by any state that so desires, as part of the lawful exercise of the freedom of the high seas which is open to all nations.‟56 The developed states and their multinational corporations did not accept the principle as implying collective benefit from the resources of the seabed regardless of whichever state explored and exploited them. They considered any collectivist conceptualisation of the principle as a barrier and 53The full title of the agreement is “Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of the Straddling Fish Stocks and Highly Migratory Fish Stocks”. The Agreement was adopted on Aug. 4, 1995 and entered into force on Nov. 11, 2001. Seventy-eight states and entities have ratified the Agreement till date. 541982 Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules on the Deep Sea Bed Between France, the Federal Republic of Germany, the United Kingdom, and the United States, Sept. 2, 1982. 55Provisional Understanding Regarding Deep Seabed Matters (with appendices and memorandum of application), 3 Aug., 1984. 56 Ibid.; M Hope-Thompson, (n. 30) p. 47 Page | 82 AJLHR 3 (1) 2019 disincentive to the exploration and exploitation of the seabed area.57 These nations preferred unhindered access to the mineral resources of the deep seabed beyond the limits of national jurisdiction. Third World countries, on the other hand, understood the CHM principle to mean that any state that „exploited the resources of the seabed and ocean floor must bring the profits thereof to the hotchpotch for the benefit of all states.‟58 They saw it as a vehicle for the realisation of a New International Economic Order (NIEO) that would conduce to improved revenues for them. These states wanted to be participants in decision-making in the exploitation of the resources of the deep seabed. They aspired to be more than silent observers to the acquisition of new knowledge of the oceans so that marine science and technology could be put at the service of all and not only of a limited number of very wealthy and developed countries.59 To realise their goals, the Group of 77 Countries (G-77),60 following Pardo‟s lead, called for the establishment of a Seabed Authority which would have the power, among others, to regulate and control exploration and exploitation of the seabed; limit production and set prices; as well as award contracts and manage the exploitation of the resources.61 The Enterprise was proposed to be the operating arm of the Seabed Authority. The Enterprise was intended to co-operate with entities which had already developed seabed mining technologies in the development of the international seabed.62 The developed countries doubted the capability of the proposed Enterprise to exercise the requisite business judgement necessary for it to carry out its mandate.63 They were equally apprehensive that Third World countries would use the power of the proposed Seabed Authority and its organs against the interests of the developed states.64 57AO Adede, „The System for Exploitation of the “Common Heritage of Mankind” at the Caracas Conference‟ (1975) AJIL, 49 58 EE Essien, Essays on International Law of the Sea (Uyo: Golden Educational Publishers, 1994) 111 59 Ibid; J Tinbergen, Reshaping the International Order. A Report to the Club of Rome, 305-317 (1976). 60The G-77 was established on 15 June 1964 by 77 developing countries which were signatories to the „Joint Declaration of the Seventy-Seven Developing Countries‟ issued at the end of the first session of the United Nations Conference on Trade and Development (UNCTAD) in Geneva. It is a loose coalition of developing nations, designed to promote its members‟ collective economic interests and create an enhanced joint negotiating capacity in the UN. There were 77 founding members of the Group but the Group has expanded to 134 member countries. Despite the increase in membership, the original name has been retained by the Group because of its historical significance. 61Proceedings of the Third International Ocean Symposium, Tokyo, Japan, 1976, 6-12 (Hereinafter, „Third International Ocean Symposium‟). 62Id. at 25-33. 63EE Essien (n. 58) p. 111. 64A. O. Adede, „Seabed Mining: Developing Countries Expectations from and Response to the Regimes Proposed by the Law of the Sea Conference‟ paper presented at the Massachusetts Institute of Technology Seminar on Seabed Mining, 12 January, 1979. Page | 83 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? Resulting from mounting pressure from private industry in the developed states to gain access to seabed resources without further delay,65 and coupled with increasing dissatisfaction with the proposed UNCLOS seabed regime, the U.S. Congress began to tinker with the Deep Seabed Hard Mineral Resources Bill. The Bill when passed into law would enable U.S. citizens to mine hard seabed minerals pending the entering into force, with respect to the U.S., of an international regime of the sea. This was a course other developed countries were prepared to take if allowed to stand,66 and which could frustrate the CHM principle. Developed nations justified unilateral exploitation on three grounds: (i) that it would be of a provisional nature, pending the conclusion and entry into force of the new convention (UNCLOS); (ii) that it was a necessity for ensuring the development of research and technology; and above all, (iii) that it was lawful and derived from the freedom of the high seas.67 The G-77 which had been alert throughout the negotiations was not caught napping. In a swift response, the Foreign Affairs Ministers of the Group passed a Resolution declaring that „any unilateral measures, legislation, or agreement restricted to a limited number of states on seabed mining, are unlawful and violate well-established and imperative rules of international law.‟68 By his letter of August 23, 1979 to the President of the Conference,69 the Chairman of the G-77, Mario Carias of Honduras communicated the position of the Group on the issue to the Conference. In the letter, the G- 77 stated that it had carefully evaluated the justifications advanced by the developed states for unilateral mining of the deep seabed and found them untenable. The Group premised its objection to that course of action on three grounds: first, that neither the Geneva Convention on the High Seas, 1958 nor customary international law dealt with or regulated the exploration and exploitation of the resources of the international seabed area, and was therefore not covered by the freedom of the high seas; second, that the international seabed area beyond the limits of national jurisdiction as well as its resources was the common heritage of mankind; and third, that any unilateral legislation on seabed mining would not only not be recognised by the international community, but would also entail international responsibility to other states. The Group then warned that the enactment of unilateral legislation while negotiations were ongoing at the Conference would not only violate the rule of good 65There were at the time, four United States companies with proven technological capability to mine the wealth of the deep seabed. See Third International Ocean Symposium (n. 61) p. 28; T Beuttler, „The Composite Text and Nodule Mining - Over-regulation as a Threat to the Common Heritage of Mankind‟ (1977) 1 Hastings Int’l and Comp. L. R, 182. 66Like the U.S., between 1981 and 1983 other developed countries including the United Kingdom, France, Italy, Japan and the former West Germany enacted their respective domestic seabed mining legislation under which they also planned to unilaterally mine the deep seabed. 67See Letter from the Chairman of the G-77 to the President of the Conference, A/CONF. 62/100, Extract from the Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XII (Summary Records, Plenary General Committee, First and Third Committees, as well as Documents of the Conference, Resumed Eight Session) (hereinafter „Chairman of G-77‟s Letter‟). 68The Resolution signed by Ambassador Mario Carias Honduras, Chairman of G-77, was titled: „The Question of Unilateral Legislation on Seabed Mining,‟ U.N. Doc. A/CONF.622/94. 69Chairman of G-77‟s Letter (n. 67) Page | 84 AJLHR 3 (1) 2019 faith in negotiations, but could also have wider impact on economic co-operation between developing and developed states. In 1980, the Deep Seabed Hard Mineral Resources Act passed in the United States. Similar legislation followed in the U.K., Japan, and Germany allowing those countries to unilaterally embark on seabed mining outside the international framework. Till date, however, no seabed mining has taken place in the international seabed on the basis of such unilateral legislation. It is the view of this writer that the swift and vehement opposition provided by the G-77, among other considerations, deterred the developed nations in this regard. 4. How Common For Third World Countries? The G-77‟s position at the Third U.N. Conference on the Law of the Sea regarding the deep seabed was a reflection of Arvid Pardo‟s conception of the CHM principle. Third World countries wanted a regime of the seabed that would guarantee them, not only benefits but direct participation in the exploitation of the anticipated humungous resources of the deep seabed. Part XI of UNCLOS did not only guarantee third world states the right to benefit from resources recovered from the international seabed area, but also put them in a position to acquire deep seabed mining technology through mandatory technology transfer. But to what extent can it be said that the international seabed has, indeed, been common heritage to all nations? For Garrison, it was not long after the adoption of UNCLOS that the CHM principle lost its significance to Third World countries.70 The author attributes this first, to the increased dominance of free market thinking and, second, to the inclusion of the Exclusive Economic Zone in UNCLOS which robbed most of the riches of the ocean from the zone of the international regime under the CHM principle.71 There was also, according to the author, a dwindling expectation of the wealth associated with the deep seabed area, as the dreams among third world nations of an El Dorado on the abyssal plains faded. With this dwindled expectation came a dwindling, too, of the practical impact that the concept of CHM was likely to have. The developed states, according to Taylor, look upon the idea of CHM in the Area as a potential impediment to the use of market incentives such as property right to achieve economic and environmental benefits.72 As the author observes, the developed countries prefer, for example, exploitation by private enterprise conducted under licencing arrangements rather than a collectivist exploitation model. For Noyes73 and Taylor,74 it was the 1994 Implementation Agreement75 that effectively took the CHM principle outside 70 C Garrison, „Beneath the Surface: The Common Heritage of Mankind‟ (2007)1 KE Studies, 63. 71 Ibid. 72P Taylor, „The Common Heritage of Mankind: A Bold Doctrine Kept Within Strict Boundaries‟< http://www.wealthofthenations.org/essay/common-heritage-mankind-bold-doctrine-kept-within-strict- boundaries> accessed on 17 July, 2018) 73 JE Noyes, (n. 25) p. 464 74 P Taylor (n. 79) 75With the objective of allaying the fears of the developed countries which refused to ratify UNCLOS and to induce them to join the convention system, the UN in 1994 adopted the Agreement Relating to the Implementation of Part XI of the Law of the Sea Convention, 1982. The Agreement was adopted on July 29, 1994 in New York. It did away with or watered down most of the provisions that were the basis for the Page | 85 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? the mould made for it by the Third World countries. Noyes points out that the Implementation Agreement differed significantly from Pardo‟s original idea of a CHM regime. He shows that the Agreement has affected the equitable distribution of benefits; removed mandatory transfer of technology to developing countries and affected the common management system of the ISA as originally set up. Although the developing countries accepted the Implementation Agreement as a means of bringing the developed states into the Convention system, Degan has concluded that the Agreement only pays „mere lip service to the [CHM] principle‟, and that the Agreement together with its annex has destroyed the substance of the Principle.76 One would think that with the CHM principle watered-down under the Implementation Agreement the U.S. and other developed nations which had been lukewarm towards the development of the Area under the superintendence of the ISA would show more interest in deep seabed development. It has, however, not been so. The U.S. particularly has refused to join the Convention system. The position of the U.S. today on the matter is in tandem with the opinion expressed by Bandow who asserts that: „[UNCLOS] remains captive to its collectivist and redistributionist origins. It is a bad agreement, one that cannot be fixed without abandoning its philosophical presupposition that the seabed is the common heritage of the world‟s politicians and their agents, the Authority and the Enterprise.‟77 The common property element of the common heritage principle is, therefore, still under interrogation by states without the cooperation of which its underlying policies will never be realised. In Baslar‟s view, the acceptance of the Implementation Agreement by „the major objectors such as the U.S. and the U.K. does not indicate a U-turn in their rejection of the CHM principle, but shows that the concept has so radically changed from what it originally was.‟78 It needs be said that although the ISA has awarded contracts for the exploration of the international seabed for mineral resources,79 most developing countries of the world have nothing to do with the exploration activities so far. The contracts were awarded, predominantly and as expected, to corporations from the developed countries.80 Thus, though UNCLOS maintains that the Area and its resources are the CHM, for Third World countries, this appears to be so only in theory. In the words of Anand:81 ...Although the area of the deep seabed beyond the limits of national jurisdiction is still called and declared as the common heritage of mankind, the term has lost its original meaning and substance when it symbolized the interests, needs, hopes and rejection of the Convention by the developed countries, including mandatory transfer of marine technology and the powers of the ISA. 76VD Degan, „The Common Heritage of Mankind in the Present Law of the Sea‟, cited in JE Noyes (n. 25) p. 464. 77D Bandow, „The Law of the Sea Treaty: Inconsistent with American Interests‟, Testimony before the U.S. Senate Committee on Armed Services, Washington D.C., 18 April, 2004. 78 K Baslar, „The Concept of the Common Heritage of Mankind in International Law‟(1998) Kluwer Law, 348-349. 79The ISA has so far awarded 19 exploration contracts for the exploration of the deep seabed. See Global Ocean Commission, Strengthening Deep Seabed Mining Regulation, Policy Option Paper, Third Meeting of the Global Ocean Commission, 11 July, 2003. 80Ibid 81R P Anand, „Common Heritage of Mankind: Mutilation of an Ideal‟ in R P Anand (ed), Studies in International Law and History: An Asian Perspective (The Netherlands: Springer, 2004) p. 196. Page | 86 AJLHR 3 (1) 2019 aspirations of a large number of poor peoples. The principle has lost its lustre and soul... This writer cannot agree more with Anand. There is, indeed, nothing common in a CHM principle that fosters western exclusionist development of the international seabed area and overlooks the interests of the poor nations of the world, in whose interest the principle was, in the first place, conceived. Assuming that the CHM principle has remained intact as originally conceived by third world states and entrenched under UNCLOS, there is still the problem of uncertainty of the extent of the international seabed area. While it is generally accepted that the international seabed is the CHM under UNCLOS, it is still uncertain what areas presently form part and parcel of it. The deep seabed is bound by submarine land areas within national jurisdiction in the form of continental shelf. Under article 76 of UNCLOS, States are expected to establish their continental shelf not exceeding 200 nautical miles, and in the case of an extended continental shelf, one not exceeding 350 nautical miles. In his reflections on this point, Vitzthum has asserted that by defining the “Area” as the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction under article 1(1) of UNCLOS, the Convention „clarifies that the outer limit of the continental shelf constitutes the decisive criterion with regard to the extension of the Area.‟82 Therefore, unless coastal states establish the outer limits of their continental shelf, the exact extent of the international seabed will remain unknown. Where, therefore, the outer limits of the continental shelf have not yet been established, it would be difficult to determine where state jurisdiction ends and where the international seabed begins. In this state of affairs, developed coastal countries that have developed cutting- edge technology for mining the deep seabed have continued to explore resources beyond the limits of national jurisdiction and into the international seabed area. If allowed to go on, this would lead to a gradual diminution of the common resource space in the interest of the developed countries at the expense of developing ones. Third world countries without the requisite technology, know-how and capital to partake in deep seabed mining will be the worst for an international common heritage space encroached on from all sides. This is because they would have to watch helplessly as the industrialised states creep deeper and deeper into the international seabed. They would have to remain spectators as nations with the requisite technology, capital and know-how help themselves to the riches of the international seabed area. During the negotiation of UNCLOS developing countries realised that if their interests in the international seabed were to be adequately protected, there was need for them to be active participants, and not mere observers, in the development of that area of the seas. They therefore aspired and sought to be directly involved in activities in the deep seabed area. In line with their aspiration, UNCLOS provided for the participation of all states in the development of the resources of the international seabed irrespective of their social and economic systems or their geographical location. A major policy of the Convention with regard to the development of the international seabed area is „the enhancement of opportunities for all states, irrespective of their social and economic systems or geographical location, to participate in the development of the resource of the Area and the prevention of monopolisation of activities in the Area.‟83 The opportunity of participation by Third World states in the development of the resources of the Area is enhanced under the Convention in three significant 82WG Vitzthum, „International Seabed Area‟ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) p. 53. 83Art. 150 (g) UNCLOS Page | 87 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? ways. The first is the mandatory transfer of technology to the developing countries under the original UNCLOS.84 It was realised that direct participation of third world states in deep seabed development was only wishful thinking without the transfer to them, of mining technology developed by the technologically advanced countries of the world. Like many other things developing countries wanted at the negotiations, agreement was reached that deep seabed mining technology would be transferred to them. Article 144 of the original UNCLOS therefore provided that the ISA „shall take measures in accordance with this Convention: (a) to acquire technology and scientific knowledge relating to activities in the Area; and (b) to promote and encourage the transfer to developing States of such technology and scientific knowledge so that all States Parties benefit therefrom.‟ The Convention thus provided for the transfer of the technology of the industrialised nations to developing countries in facilitation of the latter‟s participation in the development of the international seabed area. Opposed to transfer of marine technology to developing countries, the industrialised states, led by the U.S., refused to ratify the Convention. This was followed by serious efforts by the UN to bring back the industrialised nations into the Convention system. These efforts culminated in the adoption of the Implementation Agreement. Under the Agreement, mandatory transfer of technology to developing countries was effectively watered down. 85 If developing countries must acquire deep seabed mining technology, they are now to do so in the open market on commercial terms or through joint ventures.86 There is no gainsaying the fact that deep seabed technology would be so expensive in the open market to be effectively beyond the reach of most developing countries ravaged by poverty. There is also no guarantee that such technology would even be put in the shelf for sale by the developers since the Implementation Agreement does not mandate them to do so. With regard to joint ventures, experiences from other areas where developing countries had in the past entered into joint ventures for the purpose of acquiring technology from the developed countries are not those of successes. It is submitted that without technology required to mine the international seabed, developing countries cannot directly participate in the exploitation of that area of the sea agreed by the international community to be CHM. To truly amount to CHM, all states, irrespective of their technological capabilities, should be able to directly participate in the exploitation of the resources of the international seabed. A dichotomy of participants and onlookers in the mining of the wealth of the deep seabed is, without a doubt, inconsistent with the substance of the CHM principle. The second way through which UNCLOS sought to ensure participation by developing countries in the exploitation of the international seabed is the provision of opportunities for the acquisition of marine scientific and technological knowledge relevant to activities in the Area by nationals of developing states. States Parties to the Convention are enjoined to: promote international cooperation in marine scientific research in the Area by ... ensuring that programmes are developed through the Authority or other international organizations as appropriate for the benefit of developing states and technologically less developed states with a view to (i) strengthening their research 84Ibid., art. 144; art. 5, Annex III, UNCLOS. 85See, for example, D Bandow, „Sink the Law of the Sea Treaty‟. Page | 88 AJLHR 3 (1) 2019 capabilities; (ii) training their personnel and the personnel of the Authority in the techniques and applications of research; (iii) fostering the employment of their qualified personnel in research in the Area.87 It was intended that through such programmes, nationals of developing countries could obtain training that would qualify them to play participatory parts in scientific and technological research in the international seabed area. In facilitation of the development of such personnel of developing countries, the ISA established the ISA Endowment Fund.88 The Fund is dedicated to the training of the nationals of developing countries in marine science through marine research programmes, and participation in international technical and scientific cooperation.89 Contributions to the Fund were expected to be made by the ISA itself, members of the ISA, other states, international organisations, academics, scientific and technical institutions, philanthropic organisations, corporations and private persons.90 As commendable as the establishment of this Fund by the ISA is, it is reported that the Fund has not really satisfactorily served the purpose for which it was established. Only few donors actually come forward to subsidise the participation of developing countries in the development of ocean mining by making donations to the Fund.91According to Bandow, the Fund is in such critical condition that the ISA has had to dip into its own budget to pay into the Fund.92 Without sufficient funding, there is a limit to what the ISA could do in providing training to scientists from developing countries of the world to enable their participation in the development of the international seabed area. Accordingly, only 83 scientists or government officials from 43 developing countries have so far benefitted from the Fund as at March 2016.93 This means that were mining activities to commence at the moment in the international seabed area supposed to be common resource area for all mankind, developing countries would still watch from the sidelines. It is submitted that such situation would be incongruous with the common development objective of the common heritage principle, especially as conceived with regard to the resources of the deep seabed under UNCLOS. 87Art. 143 (3) UNCLOS 88The International Seabed Endowment Fund (hereinafter „the Fund‟) was established by the Secretary- General of the ISA pursuant to ISA Assembly Resolution ISBA/12/A/11 of 16 August 2006 and in accordance with the Financial Regulations of the ISA. 89Section 2, Terms of Reference, Guidelines and Procedures for the International Seabed Endowment Fund, Annex to Decision of the Assembly of the International Seabed Authority Relating to the Terms of Reference, Guidelines and Processes for the International Seabed Authority Endowment Fund, ISA Doc. ISBA/13/A/6. 90Ibid, section 5. 91D Bandow, „Sink the Law of the Sea Treaty‟. Page | 89 IWUNZE: The International Seabed as Common Heritage of Mankind: How Common for Third World Countries? 5. Conclusion In this paper effort has been made to critically examine the origin, legal status and content of the CHM principle in the law of the sea. It was shown that the development of the principle was spearheaded by third world countries which hoped that it was by means of a generally accepted idea of common heritage that resource justice would be achieved in the exploitation of the enormous mineral resources of the international seabed. This paper has, however, shown that over thirty years since the CHM principle was adopted under UNCLOS Third World countries are yet to feel the impact of the principle with respect to resource development in the international seabed area. The industrialised countries which opposed the common property element of the CHM principle seem to pay only lip service to the principle today, preferring unilateral resource exploitation governed by market forces in the international seabed, rather than collectivist resource development under the central command model. Even third world countries seem to have lost faith in the principle with the passage of time and the obvious disinclination of the developed countries to commit to the development of the international seabed on the common heritage basis. Third World countries received UNCLOS together with its technology transfer and resource distribution policies as one of the key ingredients of a New International Economic Order (NIEO).94 They hoped that the Convention regime would conduce to remarkable, unprecedented income redistribution between them and the developed countries. For them, if the international seabed area was accepted as CHM, then the technology for exploiting it must also be seen in the same light.95 They took the view that the wealth of the world was unequally distributed, and therefore sought to correct the inequality via a political process, of which transfer of marine technology and deep seabed resource distribution were part of the agenda. Most of these countries believed that being the victims of exploitation by the Western powers throughout the period of colonialism they were due their fair share in global mineral wealth and advanced technology in return for decades of exploitation by the industrialised colonial powers.96 Those among them affected by the Trans-Atlantic slave trade have also not stopped thinking that there should be some form of reparation for the wrongs of the slave trade. The developed nations could demonstrate magnanimity through an inclusive deep seabed mining arrangement that involves Third World active participation regardless of the latter‟s obvious handicap. This will conduce to fairness and resource justice in the common heritage of mankind. Until the developed nations do so, the CHM principle will continue its present gravitation towards the Common Heritage of the Powerful Mankind. 94 J Stavridis, Marine Technology and the Law of the Sea (1978-1984) 68 Naval War College Review, 152- 153. 95 Ibid 96 Ibid Page | 90 AJLHR 3 (1) 2019 APPRISING THE SYRIAN CONFLICT: A FAILURE OF THE RESPONSIBILITY TO PROTECT* Abstract The emerging norm of responsibility to protect requires that state sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself; and that where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non- intervention yields to the international responsibility to protect. The Syrian conflict, now in its eighth year, is a bitter example where a sovereign state and the international community have manifestly failed in their responsibilities to protect civilians from mass atrocity crimes. This paper examines the successes and failures of the international community to intervene in Syria using the core principles that sustain the concept of ‘responsibility to protect’. This paper using the doctrinal method argues that the contradiction between the protection of civilians and the fear of regime change by Syria and her allies has undermined international confidence in the principle of responsibility to protect. This study concludes that the conceptual confusion and the Libyan experience have broken the international consensus on responsibility to protect and eroded whatever gains made by the concept particularly during the World Summit Outcome in 2005. The paper concludes that the international community has failed to live up to her responsibility to protect the people of Syria. Keywords: Responsibility to protect, International humanitarian law, Geneva Convention, Hague Convention, United Nations Security Council, the Syrian civil war 1. Introduction The war in Syria has seen the violations of all known international humanitarian laws including Hague Conventions, the Four Geneva Conventions and the Additional Protocols, the Convention on the Prevention and Punishment for the Crime of Genocide 1948 in the full glare of the international community.1 All prohibited means of warfare banned by Hague and Geneva Laws has been violated including the prohibition on the use of chemical weapons and other substances. Yet the international community stood-by while the senseless carnage continues. The civil war started less than six years * Mazi UDEGBULEM, LLM, BL, PhD Candidate (NAU), Lecturer, Faculty of Law, Imo State University, Owerri. .Email: [email protected] 1This is according to the report submitted by the Independent International Commission of Inquiry on the Syria Arab Republic which was set up by the UN Human Rights Council on 22 August 2011 to investigate human rights violations during the Syrian Civil War, the commission was established pursuant to the resolution adopted during her 17th special session. The mandate was to investigate all alleged violations of international human rights since March, 2011 in Syria. The Commission’s report indicted all the actors involved in the war of gross violations of human rights. OHCHR IICISyria Independent International Commission of Inquiry on violations of human rights in Syria. Available on https://www.ohchr.org>iicisyria>pages. Accessed on 12 March, 2019. Page | 91 UDEGBULEM: Apprising the Syrian Conflict: A Failure of the Responsibility to Protect after the international community gathered in New York and adopted a common document now referred as the 2005 World Summit Outcome on the emerging norm of responsibility to protect pledging to assume responsibility whenever the sovereign state is unable to protect its population from what it referred to ‘as mass atrocity crime.’ The UN General Assembly unanimously adopted the ‘World Summit Outcome Document and in paragraph 121 assigns all states, on an equal basis, ‘the duty to promote and protect all human rights and fundamental freedoms2. Though this is not a binding legal document but under the separate heading of ‘Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes Against Humanity,’ Paragraph 138 task states individually responsible for the protection of their populations from these four grave crimes, and includes the prevention of these crimes as well as their incitement.3 Moreover, Paragraph 139 urges for collective action of the International Community in the following words thus: The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.4 In an implicit manner, these two paragraphs consecutively refer to the ‘responsibility to prevent’ and ‘the responsibility to react’ aspects of Responsibility to Protect framework. Looking at the two paragraphs of the Document, it will be seen that the Document was done in such a way that it would 2 Resolution adopted by the General Assembly (A/RES/60/1), 2005 World Summit Outcome, 24 October 2005, 27-28. Full text is available at http://www.daccessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement accessed 10 August, 2018. Furthermore, paragraph 122 reads that: ‘We emphasize the responsibilities of all States, in conformity with the Charter, to respect human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status’ (pp. 27-28) 3Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. ‘We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability’. 4See particularly page 30 of Resolution (A/RES/601), of 24th October, 2005 adopted by the UN General Assembly. Page | 92 AJLHR 3 (1) 2019 be adopted without objection as can be seen from a careful reading of the text of the 2005 World Summit. In comparison to the Report of the International Commission on Intervention and State Sovereignty, the acts invoking a responsibility to protect, as enumerated in Paragraph 138, are limited in the Outcome Document to a set of four fundamental crimes with universal jurisdiction and defined by international criminal law5. This restriction can be seen as an attempt to make the terms of the concept less ambiguous, less flexible, and less open to interpretation. The document adopts a cautious language while assigning responsibility to the international community. In Paragraph 138, it uses the phrase ‘as appropriate’ and makes the conditions of action more flexible. In Paragraph 139, the Heads of States talk about their preparedness ‘to take collective action’ signalling that they refrain from undertaking a responsibility in a strict manner, which in essence would be an obligation. In affirmation of what was adopted in the Document, the Security Council thereafter has referred to paragraphs of the World Summit Outcome in her numerous resolutions. For instance, Resolution 1674 (2006)6 unanimously adopted by the Security Council at its 5430th meeting on 28 April 2006, concerning the protection of civilians in armed conflict, in Paragraph 4 reaffirmed: The provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Resolution 1706 (2006)7 adopted in its 5519th meeting made reference to its previous resolutions 13258 (2000) on women, peace and security, and resolution 15029 on the protection of humanitarian and United Nations personnel, 161210 on children and armed conflict, and 167411 on the protection of civilians in armed conflict, which reaffirms inter alia the provisions of paragraphs 138 and 139 of the 2005 United Nations World Summit outcome document, as well as the report of its Mission to the 5The Statute of the International criminal Court otherwise called the Rome Statute was adopted in July, 1998 in Rome and the Statute defined Crimes within the Courts jurisdiction to include Genocide created in Article 6 of the Statute of the International Criminal Court, War Crimes in Article 8, Crimes against humanity in Article 7. These are the crimes which were adopted in the 2005 World Summit Outcome Document regarding State responsibility, where states fail in this regard, the international Community would be compelled to act. 6General Assembly, (A/63/PV.99), p. 25. Full text of the Resolution is available at http://www.un.org/Docs/sc/unsc_resolutions06.htm (accessed July 28, 2018). 7United Nations Security Council Resolution 1706 adopted on August 31, 2006, after recalling previous resolutions on the situation in Sudan. Resolution1706-UN.org available on https://www.un.org>sc8821.doc.htm accessed on 15 March, 2019 8United Nations Security Council Resolution adopted on 31st October 2000 on Women, Peace and Conflict available on https://www.nwci.ie>good_practice_guide accessed on 15 March, 2019 9Adopted on 26 August, 2003 on the Protection of United Nations Personnel, associated personnel and humanitarian personnel in conflict zones available on unscr.com>resolution>1502. Accessed on 15 March 2019 10 Adopted on 26 July, 2005 available on https://www.un.org>blog>document. Accessed on 12 March, 2019 11 Adopted on April 28, 2006 available on https://www.un.org>blog>document Page | 93 UDEGBULEM: Apprising the Syrian Conflict: A Failure of the Responsibility to Protect Sudan and Chad from 4 to 10 June 2006.12 We have gone this far to demonstrate that the inability of the international community to end the war in Syria is not because of lack of legal framework but absence of political will on the part of the permanent members of the UN Security to do so. 2. The Concept of Responsibility to Protect The doctrine of responsibility to protect though not yet a binding legal principle has laid a firm foundation for the moral obligation of the international community to rise up against the commission of mass atrocity crimes against a civilian population. This papee shall herein examine the concept to deconstruct its normative content in the face of ever increasing armed conflict around the world. As stated by the United Nations Office of the Special Adviser on the Prevention of Genocide thus: ‘The Responsibility to Protect populations from genocide, war crimes, crimes against humanity, and ethnic cleansing has developed as an important global principle since the adoption of the United Nations World Summit Outcome Document in 2005’.13 As stipulated in the Outcome Document, the concept of responsibility to protect refers to the State’s obligation to their populations and toward all external populations at risk of genocide and other mass atrocities. Responsibility to Protect therefore specifies three pillars of responsibility. The first basic principle of the responsibility to protect is that every State has the responsibility to protect its populations from four mass atrocity crimes: genocide, war crimes, crimes against humanity and ethnic cleansing.14 The second basic principle is that the wider international community has the responsibility to encourage and assist individual states in meeting that responsibility while the third pillar is that if a State is manifestly failing to protect its populations or the State is the principal actor, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the United Nations Charter.15 The above principles originated in a 2001 report of the International Commission on Intervention and State Sovereignty, which was recognized by the United Nations General Assembly in the 2005 World Summit Outcome Document, paragraphs 138, 139 and 140.16 At 2009 General Assembly Summit on the implementation of the responsibility to protect, the United Nations’ Member States overwhelmingly reaffirmed the 2005 commitment and the General Assembly passed a consensus resolution affirming their desire to have an implementable doctrine. Moreover, the Security Council and Human Rights Council have invoked 12 Ibid 13 Kagusthan Ariratnam, ‘International Politics’, (2008) Available on https://www.linkedin.com/pulse/responsibility-protect-syria-case-study-kagusthan-ariaratnam/ accessed on 26 September, 2018. 14See the recommendations of the Document submitted to the UN General Assembly by the International Commission on Intervention and State Sovereignty. Available on https://.www.un.org>genocideprevention. Accessed on 12 March, 2019 15 Ibid 16See the World Summit Outcome Document, paragraphs, 138, 139 and 140. Available on www.un.org>docs>globalcompact> A/RES/60/1 2005 World Summit Outcome- the United Nations Page | 94 AJLHR 3 (1) 2019 Responsibility to Protect in more than 45 resolutions since 2006.17 It can therefore, be seen that responsibility to protect has been discussed, debated, and assessed on numerous occasions throughout the years, indicating its transformation from a mere report to an emerging norm. The remarkable achievement throughout these conventions and summit is that it has transformed responsibility to protect from a debate between sovereignty and human rights, to become a discussion on how to best protect people in danger.18 It must be noted however that these discussions are not without controversy. In fact, there is not a complete international consensus yet on how best to implement the responsibility to protect or how the norm will emerge because many States argue that since responsibility to protect involves sovereign nations forcibly intervening on other sovereign nations, it undermines the concept of sovereignty itself and threatens national and international security19. The moral aspect of responsibility to protect seems to be what justifies such responses, that is, the compassion for humanitarian intervention.20 3. Responsibility to Protect: A moral, legal, and/or political norm? Responsibility to protect is somehow misrepresented as an emerging legal norm, structured to legitimize humanitarian intervention and excuses form of military recklessness. However, member States do not find the argument of the proponent of the principle attractive because it somehow redefines sovereignty, enabling self interested coercive intervention, and expanding the scope of potential intervention none of which are tenable to the majority of States of the international community.21 This far reaching framework cannot be said to accurately constitute a norm of international law, not only because it developed outside of a normative vacuum, but also within an existing and comprehensive legal framework comprised of the UN Charter and customary legal documents such as the Genocide Convention, the Geneva Conventions and the Statute of International Criminal Court. The responsibility to protect can neither be considered a source of binding international law, as none of the relevant responsibility to protect documents conform to those sources of international law identified in the International court of Justice.22 At 2005 World Summit, World leaders endorsed the international principle of responsibility to protect, acknowledging that they had a 17 See the Global Centre for the Responsibility to Protect Report,2008. Available on www.globalr2p.org. Accessed on 10 March, 2019. 18A. J. Bellamy & N. J. Wheeler (2014). ‘Humanitarian Intervention in world Politics’ (Edns, N.J, 2014) cited in J. Baylis, S. Smith & P. Owens (Eds.), The globalization of world politics: An introduction to International Relations (6th edn. Oxford: Oxford University Press), pp.480-491 19 States like Iran, Venezuela, South Africa, India etc during the UN General Assembly debate on the report were all skeptical of the report and urged for a cautious approach to the doctrine because it has the potential of eroding the concept of sovereignty. See the minutes of the proceedings of the UN General Assembly debate on the Report of the UN Secretary General on the Responsibility to Protect framework. Retrieved from http://www.un.org/ga/president/63/interactive/ protect/conceptnote.pdf (Accessed August, 08, 2018). 20 Ibid 21N. Glover ‘ A Critique of the Theory and Practice of R2P- E-International Relations (2011) available on https:www.e-ir.info>2011/09/27>a-cr. Accessed on 14 March, 2019. 22 See Article 38 of the Rome Statute Page | 95 UDEGBULEM: Apprising the Syrian Conflict: A Failure of the Responsibility to Protect responsibility to protect their citizens from genocide and mass atrocities and pledging to act in cases where governments manifestly failed in their responsibility23. The summit marked a significant turning point in attitudes towards the protection of citizens worldwide24 who are subjected to severe violation of their international humanitarian law. Although Responsibility to Protect as an emerging norm in evolution can be seen as a part of de lege ferenda25, at this phase, it is far from being established as a legal norm. The language adopted in the 2005 Document26 avoided any legal commitment on the part of the international community. For instance, at the negotiations on the World Summit Outcome Document, the then US Permanent Representative John Bolton stated accurately that the commitment made in the Document was ‘not of a legal character. In a similar vein, the representative of Singapore noted in the preliminary meeting of the General Assembly: ‘For my delegation, it is clear that, four years ago, our leaders pledged their strong resolve to the notion of responsibility to protect. Certainly, that did not make responsibility to protect part of international law or a legally binding commitment.’27 Thus, currently there is neither an existing legal mechanism nor an attempt to establish one to assure international community’s collective response at times when there is State failure to prevent or halt grave violations of human rights. Consequently, in general terms, it is not necessarily possible to talk about a well-established legal responsibility to protect at the international level. In the absence of strictly established criteria for implementing responsibility to protect, the duty assumed by the international community stands out as a moral duty rather than a legal one. Therefore, the responsibility to protect is not yet an international legal norm, it is possible to argue that responsibility to protect has been internalized as a moral norm in international politics given the international and regional documents adopted by States as well as severe criticisms raised against inaction or late action by States and/or the international community in cases of humanitarian atrocities - such as those in Rwanda and Darfur, and this inaction led the African Union to begin fashioning their own legal 23 See the UN General Assembly debate on the Report of the UN Secretary General on the Responsibility to Protect framework. Retrieved from http://www.un.org/ga/president/63/interactive/ protect/conceptnote.pdf (Accessed August, 08, 2018). 24 A. J. Bellamy, Ibid 25The derivative expression means ‘with a view to the future law.’ The expression is generally used in the context of proposal for legislative improvements, especially in the academic literature, both in the Anglo- American and in the continental legal systems. 26 Based on the framework of the Outcome Document, it is clear that ‘the concept of a ‘responsibility to protect’ does not amount to a legal norm that would legitimize unilateral intervention in domestic affairs by individual States or regional organizations, but refers on the contrary to the encouragement and support the international community has to give to States so that they exercise this responsibility’ at least at that level even when all the member agree that the four prohibited crimes as agreed in the Summit must be prevented from happening. 27Being minutes of the proceedings of the UN General Assembly debate on the Report of the UN Secretary General on the responsibility to protect framework. Retrieved from http://www.un.org/ga/president/63/interactive/ protect/conceptnote.pdf (Accessed August, 08, 2018). Page | 96 AJLHR 3 (1) 2019 framework regarding humanitarian intervention.28 In the light of this, the acceptance of the necessity to avoid human suffering caused by man-made disasters and prioritization of human rights through international recognition29, at the current state of affairs, hint at the first admission of responsibility to protect as a moral norm. It is submitted that despite the lack of legal basis for the implementation of the responsibility to protect in the international arena, it is our considered view that protecting populations from grave human rights violations is a moral imperative, and that the principle of non- indifference should be embraced. In an affirming manner, Holy See indicates that ‘the international community has a moral responsibility to fulfill its various commitments including protecting populations from grave crimes.30 In the light of these statements, it can be argued that there is an understanding by the Member States of a moral responsibility to act in cases of Responsibility to Protect. Neither Paragraph 138 nor 139 of the famous 2005 World Summit Outcome Document on responsibility mentioned any possibility of unilateral action in the event of a failure of the UN to act in the face of mass atrocity crimes. The use of veto power is usually employed to frustrate such resolution calling for intervention. The case of Syria is a vivid example where Russia and China has blocked all resolutions calling on the Syrian regime to stop killing its own people and for using chemical weapons on her citizens.31 This is despite evidence of the regime’s use of siren gas on its civilian population. Therefore, in the absence of any legal framework to back up the responsibility to protect norm, it remains a moral obligation than a legal norm without any enforcement measures in event of lack of consensus by the international community. This is the situation the world is faced with in Syria. International humanitarian laws apply to armed conflicts. It is during armed conflicts that member nations seek the enforcement of the various international Conventions on rules of engagement. First, we ask the question whether the situation in Syria amounts to armed conflict. 4. Armed Conflicts in the Context The 1949 Geneva Conventions as well as the Additional Protocols of 1977 do not offer any definition of the term ‘armed conflicts’. This is not an oversight because parties to the treaties deliberately 28The AU Constitutive Act has provided for statutory intervention in member states in event of mass atrocity crimes in her Article 4(h). The African Union has assumed the responsibility to protect the people of Africa facing such crime in event of the failure of their State to do so. This is responsibility to protect given statutory backing. 29Article 55 (c ) of the UN Charter provides that the UN shall have universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion 30Being part of the Statement of H.E Archbishop Bernardito Auza, Apostolic Nuncio and Permanent Observer of the Holy See to the United Nations in 2005 during the debate on the Secretary-General Report. Available on https://www.holyseemission.org>statements accessed on the 10th August, 2018. 31On 14th April, 2018, Russia vetoes UN Resolution on Syria chemical weapon probe and subsequently similar such resolutions. Available on https://www.un.org>sc13296.doc.htm accessed on 9th August, 2018. Page | 97 UDEGBULEM: Apprising the Syrian Conflict: A Failure of the Responsibility to Protect avoided the technicalities that may arise from any definition. In the previous Conventions32 before the Geneva Law, States parties could argue that they were not at war and so the laws of war did not apply to them. It was because of this problem that a definition of armed conflict or war was avoided. However, the States parties to the 1949 Geneva Conventions have entrusted the International Committee of the Red Cross, through the Statutes33 of the International Red Cross and Red Crescent Movement, to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof. It is on this basis that the International Committee of the Red Cross takes this opportunity to present the prevailing legal opinion on the definition of ‘international armed conflict’ and ‘non-international armed conflict’ under International Humanitarian Law. International humanitarian law distinguishes two types of armed conflicts, namely international armed conflicts, opposing two or more States, and non- international armed conflicts, between governmental forces and non-governmental armed groups, or between such groups only.34 International humanitarian law treaty also establishes a distinction between non-international armed conflicts in the meaning of Common Article 3 of the Geneva Conventions of 1949 and non-international armed conflicts falling within the definition provided in Article 1 of Additional Protocol II. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I. Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II. International humanitarian law applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting. As earlier noted, it is important to differentiate between international humanitarian law(les specialis) and human rights law (les generalis. While some of their rules are similar, these two bodies of law have developed separately and are contained in different treaties. In particular, human rights law – unlike international humanitarian law –applies at all times and extraterritorially in times of occupation and many of its provisions may be suspended during an armed conflict. So does the situation in Syria amount to non-international armed conflict? 5. Non International Armed Conflict Two main legal sources must be examined in order to determine what is a non-international Armed Conflict under international humanitarian law. To that extent it is pertinent to recall the provisions of the Common Article 3 to the Geneva Conventions of 1949 as well as Article 1 of Additional Protocol 32 Referring to the Hague Law or Hague Laws of War 33 See Article 5 (2) (g) of the Statutes of the International Red Cross and Red Crescent Movement. 34Opinion of the ICRC. Available on https://www.icrc.org/eng/assets/files/other/opinion-paper-armed- conflict.pdf ( Accessed on 8 October 2018.) Page | 98 AJLHR 3 (1) 2019 II. Accordingly the Common Article 3 provides that non-International Armed Conflicts applies to ‘armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties’. These include armed conflicts in which one or more non-governmental armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-governmental armed groups or between such groups only. As the four Geneva Conventions have universally been ratified now, the requirement that the armed conflict must occur ‘in the territory of one of the High Contracting Parties35 has lost its importance in practice. Indeed, any armed conflict between governmental armed forces and armed groups or between such groups cannot but take place on the territory of one of the Parties to the Convention. In order to distinguish an armed conflict, in the meaning of common Article 3 from less serious forms of violence , such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of Additional Protocol II which excludes internal disturbances and tensions from the definition of Non International Armed Conflict also applies to Common Article 3. Two criteria are usually used in this regard as summarized by Schindler to the effect that: First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces. Second, non-governmental groups involved in the conflict must be considered as ‘parties to the conflict’, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations36 (if you have the Protocols go to the relevant articles and read the requirements and then support it with Schindlers opinion. It will make your work richer) From Schindlers opinion as well as Additional Protocol II as seen above, it is safe to conclude that the situation in Syria falls within the legal definition of non international armed conflict and as such the parties are bound to respect the various laws of war. The paper makes this conclusion mindful of the interventions of countries such as the United States and Turkey through their support of some rebel groups and Iran, Russia and the Hezbollah group from Lebanon purportedly on the invitation of the Syrian Government. Since there is no open confrontation between the foreign powers and the Syrian armed forces, it is safe to conclude that the fighting has not assumed international character. 35Article 3 Common to the Geneva Conventions provides that armed conflict not of an international character occurring in the territory of one of the contracting parties. 36See D. Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’, (RCADI, Vol. 163, -II, 1979), p. 147. Available on https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf accessed on 22 September, 2018. For a detailed analysis of this criteria, see ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03- 66-T, 30 November 2005,para. 94-134 Page | 99 UDEGBULEM: Apprising the Syrian Conflict: A Failure of the Responsibility to Protect 6. Syrian Civil War and International Humanitarian Laws Now, how did the warring parties including the Syrian Government respond to the crises in view of the various Conventions on the laws of war. All the parties to the Syrian conflict which erupted in March 2011 have committed war crimes punishable under international humanitarian laws and the Genocide Convention.37 The crisis which can be traced to the Arab spring which involved the mass movement of uprisings and demonstrations in the Arab world that began in Tunisia following a street vendor who set himself alight in protest of police brutality.38 The event subsequently led to a chain of uprisings that engulfed several Arab countries, including Syria. The peaceful protests in Syria were met with a violent response and turned out to be one of the most catastrophic humanitarian crises that led to an eventual civil war. This escalation was the result of external intervention.39 The Russian and Iranian Governments entered Syria purportedly on the invitation of the Syrian Government to help fight the menacing rebels including the Free Syrian Army heavily backed by the United States and Turkey. Thereafter the Hezbollah group from Lebanon entered Syria to fight on the side of the Syrian Government. Whereas the US and Turkey claims that they are in Syria to protect the Syrian people and to help curb the spread of the ISIS rebel group, Russian and Iran alleged that they are in Syria to help a friendly government chase out terrorists. However, behind these claims lies their personal and or national interest. For Russian and Iran, their main motive was to maintain their regional dominance and to curb the US imperialist spread in the East. It was this foreign forces that changed the character of the Syrian conflict and made impossible to resolve. The Syrian war as noted is more of a power struggle than humanitarian intervention. The BBC reported on March 1 2017 that since the eruption of full scale war, more than 280,000 people mostly civilian have been killed particularly in Aleppo where the Government backed troops and militias and the opposition have been accused of war crimes.40 The Syrian and Russian armed forces have both committed war crimes in Aleppo and other provinces of Syria following their deliberate targeting of civilian areas and safe zones.41 The investigators from the UN Human Rights Council’s Commission on Inquiry on Syria interviewed hundreds of eye witnesses, and examined satellite imagery and remnants of explosive devices and found civilians caught in the fighting during the battle for Aleppo. The report also alleged that Syrian Government forces carried out attacks on September, 2017 on a humanitarian convoy and killed 15 aid workers in Aleppo.42 The UN merely 37See Syria Salvaging Online Videos as proofs of war crimes in Syria available on observers.france24.com. Accessed on 13 March, 2019 38H. Hove & D. Mutanda, ‘The Syrian Conflict 2011 to the Present: Challenges and Prospects’, (Vol. 5) Journal of Asian and African Studies, pp. 559-570 39 Ibid 40 BBC News available on: https//www.bbc.com>news.world-middle-east-39126653 (Accessed on 28 September, 2018.) 41 See Syria Salvaging Online Videos as proofs of war crimes in Syria available on observers.france24.com. Accessed on 13 March, 2019 42The Independent International Commission of Inquiry on the Syrian Arab Republic was set up by the UN Human Rights Council on 22 August 2011 to investigate human rights violations during the Syrian Civil War, the commission was established pursuant to the resolution adopted at her 17th special session. The mandate was to investigate all alleged violations of international human rights since March, 2011 in Syria. Page | 100 AJLHR 3 (1) 2019 denounced the aid convoy attack as ‘savage and apparently deliberate’ but did nothing more. The report found a gas cylinder on a street in Aleppo after an alleged chemical chlorine attack in November, 2017.43 The use of chlorine as a weapon is prohibited by international law as well as the Chemical Weapons Convention, to which Syria is a signatory.44 All these means of warfare were illegal under the Geneva Convention but there is no political will on the part of international community to hold the perpetrators to account.45 According to the Global Centre for the Responsibility to Protect report both Russian and Syrian government aircraft by 2016 were conducting sustained airstrikes in Aleppo, with illegal barrel bombs, cluster munitions, and bunker-buster bombs on civilian populated areas all of which are banned means of warfare under the Geneva Conventions.46 As of September 2015, Russia commenced airstrikes in Syria, claiming that it would help defeat the militant groups, including the Islamic State in Iraq and Syria.47 The Syrian Observatory for Human Rights reported that at least 5,357 fighters of Islamic State in Iraq and Syria, and 611 civilians were killed during coalition airstrikes between September 2014 and September 2016, while Russian airstrikes had killed 2,861 fighters of Islamic State in Iraq and Syria and 4,162 civilians, including over 1,000 children, by 30 October 2016.48 The opposition fighters on their own were also not left out of the heinous violations of human rights norms and international humanitarian law. The rebels the report alleged continuously shelled western Aleppo using mostly unguided and imprecise weapon including the so called ‘hell cannons49’ which killed dozens of civilians. Upon the fall of Aleppo, the report alleged that there were reprisals attacks by Government forces, the most serious of which were executions of horse de combat armed groups fighters and the murder of their civilian family members.50 The first Geneva Convention51 basically protects soldiers who are hors de combat (out of the battle). It is a violation of international law to kill hors de combat. But all these prohibitions have taken place and yet the international community did nothing. The Commission’s report indicted all the actors involved in the war of gross violations of human rights. OHCHR IICISyria Independent International Commission of Inquiry on violations of human rights in Syria. Available on https://www.ohchr.org>iicisyria>pages. Accessed on 12 March, 2019. 43 Ibid 44 See Articles 35 and 36 of the Additional Protocol I on the use of prohibited means of warfare. 45 ibid 46See the 2016 Global Centre for the Responsibility to Protect report available on www.globalr2p.org>about_r2p accessed on 28 September, 2018 47The Syrian Observatory for Human Rights: The Syrian Observatory available on www.syriahr.com. Accessed on 10 March, 2019 48 Ibid 49 Ibid. 50 BBC News available on: https//www.bbc.com>news.world-middle-east-39126653 (Accessed on 28 September, 2018) 51The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949. Page | 101 UDEGBULEM: Apprising the Syrian Conflict: A Failure of the Responsibility to Protect The United Nations Human Rights Council-mandated Commission of Inquiry52 has asserted that Syrian government forces have committed crimes against humanity as a matter of state policy. Syrian government airstrikes in residential areas have breached the United Nations Security Council Resolution 213953, which demanded all parties cease attacks on civilians and the use of indiscriminate weapons. The Commission of Inquiry54 has reported that government-allied militias and other pro- government forces have also conducted widespread attacks on the population, committing crimes against humanity, including ‘extermination, murder, rape or other forms of sexual violence, torture, imprisonment, enforced disappearance and other inhumane acts’ which are offences within the fourth Convention55 adopted in 1949. Both the Syrian government forces and the opposition units have all violated the Geneva Convention. For instance, the Convention provides that civilians are to be protected from murder, torture or brutality, and from discrimination on the basis of race, nationality, religion or political opinion all which have happened in Syria.56 By Article 1457 of the Convention, hospitals and safety zone established for the wounded, sick, and aged, children under 15, expectant mothers and mothers of children under seven shall not be targeted by the warring parties. Numerous armed opposition groups, such as the Islamic State of Iraq, have also committed war crimes, violating International Humanitarian Law by targeting religious minorities through mass killings and sexual enslavement, destroying cultural heritages and religious place of worship all crimes within the Geneva Convention. According to the Syrian Observatory for Human Rights, between June 2014 and October 2016, the Islamic State of Iraq and Syria executed 4,500 people, and nearly 2,450 of them were civilians.58 Article 18 of the Fourth Geneva Convention equally guarantees the inviolability of civilian hospitals and their staff during wartime but the military tactics in Syria has no respect for these international humanitarian Conventions. By Article 27 of the Fourth Geneva Convention, the safety, honor, family rights, religious practices, manners and customs of civilians are to be respected while Articles 33 and 34 of the Fourth Geneva Convention provides that pillage, reprisals, indiscriminate destruction of property and the taking of hostages are prohibited.59 In Syria the Islamic States terrorist group has destroyed properties, churches, Islamic and Christian heritage site as well as systematic execution of Christians and moderate Islamic faithful who do not believe in their radical interpretation of Islam. Under the Fourth Geneva Convention, civilians60 are not to be subjected to collective punishment or 52UN Commission of Inquiry on Syria available on https://www.ohchr.org>HRC>NewsDetail. Accessed on 12 March, 2019. 53UN Security Council Resolution adopted on 30 January, 2014 renewing arms embargo on all sides to the Syria conflict available on https://www.un.org>sc11268.doc.htm (Accessed on 28 September, 2018.) 54 Ibid 55 The Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 56 See Article 13 of the Convention, Ibid 57 Fourth Geneva Convention, supra 58 The Syrian Observatory for Human Rights: The Syrian Observatory available on www.syriahr.com. Accessed on 10 March, 2019 59 Fourth Geneva Convention, supra 60 Articles 33, 49 Ibid Page | 102 AJLHR 3 (1) 2019 deportation and they cannot be forced to do military-related work for an occupying force61 while they are to be paid fairly for any assigned work.62 The rebel groups can be regarded as the occupying forces in the circumstance. In Syria, the opposition and the government forces are forcefully conscripting civilians to fight on their behalf contrary to international law.63 The Geneva Convention provides that the occupying powers are to provide food and medical supplies as necessary to the population and maintain medical and public health facilities while Medical supplies and objects used for religious worship are to be allowed passage.64 However, when that is not possible, they are to facilitate relief shipments by impartial humanitarian organizations such as the International Committee of the Red Cross. Red Cross or other impartial humanitarian relief organizations authorized by the parties to the conflict are to be allowed to continue their activities.65 Children, pregnant women, mothers with infants and young children, the wounded and sick and those who have been interned for a long time are to be released as soon as possible.66 In 1977, two Protocols supplementary to the Geneva Conventions were adopted by an International Diplomatic Conference to give greater protection to victims of both international and internal armed conflicts. Protocol I67 expands protection for the civilian population as well as military and civilian medical workers in international armed conflicts. Special protections are provided for women, children and civilian medical personnel, and measures of protection for journalists are specified.68 Meanwhile Article 35 of the Additional Protocol I provides that the use of weapons that ‘cause superfluous injury or unnecessary suffering,’ as well as means of warfare that ‘cause widespread, long-term, and severe damage to the natural environment’ are prohibited. Articles 51 and 54 of AP I outlaws indiscriminate attacks on civilian population and destruction of food, water and other materials needed for survival. Articles 53 & 56 of AP I provides that Dams, dikes and nuclear generating stations may not be attacked, nor can cultural objects and places of worship but the Islamic state terrorist group has committed all of these prohibited acts. The Syrian government has deliberately shelled civilian areas including hospitals and relief convoy contrary to these international prohibitions. The paper has gone this length to demonstrate the extent of violations of international humanitarian laws sufficient to justify the activation of the responsibility to protect principles by the United Nations Security Council but none is forth coming. It is the inaction by the international community in the face of these atrocities that questions the essence and the continued relevance of the doctrine. 61 Article 40 Ibid 62 Article 54 63 The Syrian Observatory for Human Rights: The Syrian Observatory available on www.syriahr.com. Accessed on 10 March, 2019 64 Articles 55, 58 65 Article 59 66 Article 132 67Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts. The Protocol has 102 Articles 68 See the Provisions of Articles 15, 76, 77 and 79 of the additional Protocol I to the Geneva Convention Page | 103 UDEGBULEM: Apprising the Syrian Conflict: A Failure of the Responsibility to Protect The second Protocol Additional to the Geneva Conventions69 elaborates on protections for victims caught up in high-intensity internal conflicts such as the Syrian civil wars. Protocol II specifically prohibits violence to the life, health and physical or mental well-being of people. In particular, it prohibits acts of murder and cruel treatment, terrorism, hostage-taking, slavery, and outrages on personal dignity, collective punishment and pillage. These protections are considered fundamental guarantees for all persons. Children are to be evacuated to safe areas when possible and reunited with their families.70 Persons interned or detained during internal conflicts are assured of the same humane treatment as specified by the Geneva Conventions.71 The Additional Protocol II also makes provisions that strengthen protection of the wounded, sick and shipwrecked as well as medical and religious personnel.72 The Additional Protocol73 II also provides that attacks are forbidden on civilians and on ‘objects indispensable to civilian survival’ such as crops, irrigation systems or drinking water sources, cultural objects, and places of worship. Finally Article 18 AP II provides that impartial humanitarian relief organizations, such as the International Committee of the Red Cross are to be permitted to continue their humanitarian services. None of this stipulations is been observed in Syria rather what the world continue to witness is a total abandonment of the rules of war by the warring parties and the unabated violations of the international humanitarian laws. The paper have highlighted the provisions of the Hague and Geneva Conventions as it affects civilian population to demonstrate the grave violations of international humanitarian laws by the warring parties in Syria and to show that the situation in Syria calls for the application of the responsibility to protect. 7. Syrian Civil War: Assessing Responsibility to Protect The Syrian conflict transformed from an internal political protest to an international affair.74 It was the intervention of ‘superpowers’ like the United States and Russia that influenced the dimension of the Syrian conflict toward a different direction than what would have taken place without their involvement. Russia was intensely opposed to the United States’ domination in the Middle East, and ultimately reacted mainly to protect her geopolitical interest rather than by any humanitarian consideration. Countries such as Russia, Iran, and Iraq do not want a regime change in Syria because this will cost them an important political ally. As such, these sovereign nations, acting in opposition to the United States and her Western allies, were fighting for regional, possibly global, hegemony. Like Russia, Syria and its supporters, were ultimately seeking to exercise powers of sovereignty. For example, this conflict was important to Russia because the Syrian regime is the only remaining 69 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts Protocol 70 See Article 4 of the Protocol II 71 See Article 5 of the Protocol II 72 Articles 7 and 9 (of what law) 73 Articles 10, 11, 13, 14 and 16 of Additional Protocol II to the Geneva Convention 74R. Hinnebusch, ‘Syria: From Authoritarian Upgrading’ to Revolution’ (88(2) International Affairs, 2012), pp.95–113. Page | 104 AJLHR 3 (1) 2019 geostrategic Russian ally in the region wherein Russia’s strategic naval base is located.75 It can therefore be seen that Russia’s intentions differed from that of the United States, because their intervention was not motivated by International Humanitarian Law and/or International Human Rights Law, rather, it was motivated by self-interest. Same applies to Iran and the Lebanese Hezbollah who are fighting on the side of Assad. At the international stage, the Russian state has always insisted that every attempt for a peace talk must include Assad and her key ally Iran. In so doing, President Assad wants to avoid a repetition of what Western powers did in Libya under the guise of responsibility to protect to effect a regime change and ultimately the death of Col Qhadaffi. Some of the regional powers including Saudi Arabia and Qatar also began arming and funding opposition groups against the Syrian government purportedly acting under the pretense of responsibility to protect. Meanwhile, Iran and Hezbollah continued to provide crucial economic, military, and political support to the Syrian government, all in the name of regional stability. All these external influence made the Syrian conflict unique and frustrated every attempt by the UN Security Council to intervene. It is safe to conclude that under the prevailing circumstance in Syria, the United Nations Security Council has failed in its responsibilities in Syria. In Libya, a simple UN Resolution 1973 urging member nations to take all necessary measures to protect civilians under attack by the regime forces and to enforce a no fly zone provided the US and her NATO allies the pretence to effect a regime change in the name of implementing responsibility to protect. The Russians and China are suspicious of the US motives for intervention. Ordinarily, States almost always have mixed motives for intervening, and are rarely prepared to sacrifice their own soldiers overseas unless they have self-interested reasons for doing so. For Russia, it has a geopolitical interest to protect and that accounts for why Russia sent both troops and fighting warfare into Syria to help the regime. Therefore, genuine humanitarian intervention is impossible because it does not serve the national interest of the world powers. The world powers only intervene when it suits them to do so, and that strategies of intervention are more likely to be guided by calculations of national interest than by what is best for the victims in whose name the intervention is ostensibly being carried out. These reasons account for the inability of the international community to implement the responsibility to protect in Syria. Syrian civil war therefore provides a textbook example of the failure of responsibility to protect. The intervention of some countries was motivated by political preferences that ultimately affected their power rather than intervening for the purpose of humanitarian protection. Responsibility to protect was created on the basis of legal and moral obligations to intervene; however, this is not what resulted. The Syrian government, with support from its international allies, continues to engage in its military might, grasping for more power at all costs. Combined Syrian and Russian airstrikes have enabled Syrian government forces to recapture Aleppo and regain the significant territory that was previously lost to opposition forces at the expense of civilian population. The direct participation of Russian aircraft in the bombardment of Aleppo makes them complicit in alleged mass atrocities and 75J F Ratelle, ‘Lecture on Introduction to the Study of Conflicts and Human Rights’. (Personal Collection of J.F. Ratelle, University of Ottawa: November 2016) Page | 105 UDEGBULEM: Apprising the Syrian Conflict: A Failure of the Responsibility to Protect war crimes.76 The failure of the various ceasefire agreements and escalation of fighting in Aleppo proves that all sides in Syria remain committed to an outright military victory and that the ongoing civil war continues to endanger the lives of countless civilians.77 Attacks on soft targets including hospitals and civilian infrastructures demonstrate a complete disregard for International Humanitarian Law and International Human Rights Law. Therefore, restoring the cessation of hostilities is vital for the protection of civilians and reviving peace talks. However, Syrians are still living with the reality of armed conflict that could not be resolved by responsibility to protect. By and large, the international society has failed in their moral and legal obligation to protect the vulnerable populations of Syria. 8. Conclusion The Assad regime in Syria has not only immensely failed to abide by principles of responsibility to protect but has equally violated all the three pillars upon which responsibility to protect was built. For instance, pillar One of responsibility to protect States that every state has the responsibility to protect its populations from four mass atrocity crimes: genocide, war crimes, crimes against humanity and ethnic cleansing. The Syrian government has failed to do so. It has also failed to observe the second pillar which is that the wider international community has the responsibility to encourage and assist individual States in meeting that responsibility. All international efforts to resolve the conflict have been blocked by the regime while the third pillar is that if a State is manifestly failing to protect its populations or the state is the principal actor, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the United Nations Charter. Here the international community failed the Syrian people. Russian and China continues to use veto to block every UN Security Council resolution calling on Assad to protect his people. As hostile divisions thrive within Syria, the United Nations Security Council continues to fail in enforcing compliance with intervention. Outside political influence, including western liberal democracies and the wider Middle Eastern regional powers, continue to weaken Syria’s chances of ceasing hostilities. Despite the current military, political and diplomatic stalemate, Russia, the United States, Iran, Turkey, and Saudi Arabia remain key players in all negotiation settlements regarding this conflict. Therefore, any significant change in the Syrian conflict will only be achieved when these sovereignties intervene solely on their legal and moral Responsibility to Protect, rather than advancing on motives of national interests, hegemonic culture, or selective bias 76 UN Commission of Inquiry on Syria available on https://www.ohchr.org>HRC>NewsDetail. See also The Global Centre for the Responsibility to Protect (2008) available on http://www.globalr2p.org/ (Accessed on 26 September 2018.) 77 Ibid Page | 106 AJLHR 3 (1) 2019 OUSTER PROVISIONS AND JUDICIAL REVIEW IN THE NIGERIAN COMMUNICATIONS ACT: AN OVERVIEW* Abstract The courts are vested with the judicial powers of the State to adjudicate on all justiceable causes and matters by the Constitution of the Federal Republic of Nigeria 1999 (As Amended). But there are some provisions in the Nigeria Communications Act which purport to oust the jurisdiction of, and impede access to the courts for judicial review. This paper posits that these provisions constitute an affront on the rule of law and calls for both legislative and judicial pro-active intervention. Keywords: Ouster Provisions, Judicial Review, Communications Act, Nigeria 1. Introduction The constitution is the basic document of governance. It is the supreme law to which all other laws are subordinate. Thus, by the provisions of sub-section (1) of section 1 of the constitution,1 ‘this constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria’. The constitution creates the various organs of government and allocates to these organs their various powers and functions. Every government properly so called is anchored on three basic organs or arms. These are, the law-making organ referred to as the legislature, the law-executing organ popularly referred to as the Executive; and the law- adjudicating or interpretation organ referred to as the Judiciary. In the Nigerian context, the Constitution broadly provides for these organs vide sections 4, 5, and 6 respectively. The Constitution thus, recognizes the principle of separation of powers which disallows one organ of government from usurping or appropriating the functions or powers of the other. The three organs of government are co- ordinate and distinct but nonetheless, interdependent parts of an organic whole for actualization of good governance2. The judicial powers of Nigeria and the constituent states are vested in the courts by the Constitution. The judicial powers so vested ‘shall extend to all matters between persons or between government or authority and to all persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person’3. Besides, section 36 of the same Constitution guarantees fair hearing to every citizen of Nigeria within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. Thus, the primary role of the judiciary is adjudication of disputes. It * Chijioke Uzoma AGBO, LLM, PhD, Legal Practitioner and Lecturer, Faculty of Law, Enugu State University of Science and Technology (ESUT), Enugu, Nigeria. E-mail: [email protected] 1Constitution of the Federal Republic of Nigeria 1999 (as amended), hereinafter, ‘the Constitution’. 2P. A. Oluyede & D. O. Aihe, Cases and Materials on Constitutional Law in Nigeria, (Ibadan: University Press Plc, 2003), p. 447. 3 S. 6(6) (b) of the Constitution. Page | 105 AGBO: Ouster Provisions and Judicial Review in the Nigerian Communications Act: An Overview also involves the interpretation of statutes and protection of the rights and values enshrined in the Constitution. This perhaps explains why the judiciary is often referred to as the custodian of the Constitution. It is the duty of the judiciary therefore, to resolve any ambiguity in the law, since even the draftsmen of statutes acknowledge the seeming impossibility of providing for every conceivable contingency. This is why the judiciary must readily exercise its power of judicial review. This will ensure justice and fairness by insisting that administrative actions and decisions which affect the rights and interests of other citizens are exercised legally, and within the limits allowed by law4. According to Uwais, ‘any denial of an aggrieved party to a judicial review of the decision of any institution established under the legal framework amounts to an ouster of jurisdiction of the court against the rule of law5. 2. Ouster Provisions To ‘oust’ is to put out of possession; to deprive of a right. ‘Ouster’ means the wrongful dispossession or exclusion of something6. In this context, attention is focused on some ouster provisions in the Nigerian Communications Act7, which purport to curtail the jurisdiction of the courts with respect to telecommunication issues and a fortiori, limit access to the courts. Thus, it is pertinent to recall some of these provisions. Section 90 of the Act is one of such provisions. It states: Notwithstanding the provisions of any other written law, the Commission (i.e the Nigerian Communications Commission) shall have exclusive competence to determine, pronounce upon, administer, monitor and enforce compliance of all person with competition laws and regulations, whether of a general or specific nature, as it relates to the Nigerian communications market8. This provision appears to override even the express provisions of the Nigerian basic law, the Constitution. The audacity of the commencement of that provision is a palpable derogation from the provisions of ‘any written law’ including the Constitution. Dodo takes the view that section 90 of the Act is not an ouster clause ostensibly because sections 88 and 138 of the Act vest powers of judicial review of decision of the Nigeria Communications Commission (NCC) in the courts. In the words of the learned commentator: It seems to me therefore that the law acknowledges that special competence is required to handle issues arising in the industry. It is respectfully my humble view that cases arising from competition laws and regulations or among operators 4M.L. Uwais, CJN (as he then was), Keynote Address to the Workshop on Legal Issues in Telecommunications For Judges and Legislators, in Proceedings of the Workshop on Legal Issues in Telecommunications for Judges and Legislators, 17th – 19th November, 2003, p. 26. 5 Ibid. 6 B. A. Garner, Black’s Law Dictionary, 8th edn, (St. Paul Minn: West Publishing law, 2004), p 1134. 7 No. 19 of 2003, hereinafter, ‘the Act’. 8 S. 90 of the Act, italics supplied. Page | 106 AJLHR 3 (1) 2019 or between operators and subscribers or third parties ought to be referred by the courts to the Nigerian Communication Commission for resolution. This is not an ouster clause because sections 88 and 138 [of the Act] vest in the court powers of judicial review of decisions of the Nigerian Communications Commission, and also of disputes involving the Nigerian Communications Commission and other parties. Judicial review necessarily implies that the focus of the review is not the merits of the decision of the Nigerian Communications Commission but the procedure followed in arriving at the decision. That is why section 88 is specific that challenging the Nigerian Communications Commission must be by way of an application for judicial review9. It is not in doubt that the Act provides for judicial review under section 88 and the courts have ruled on the conditions precedent for invoking the powers of the court for judicial review as therein provided10. However, with all due respect to the high learning of the commentator, it does not seem that judicial review generally, necessarily implies that the focus of the review is not the merits of the decision (in the instant case the decision of the NCC), but the procedure followed in arriving at the decision. Judicial review could be invoked as a result of substantive ultra vires, in which case, substantive provisions of the law have been exceeded in the exercise of its powers by a given public authority. It could also be invoked as a result of procedural ultra vires, in which case, the procedure set by the law have not been followed in arriving at a decision by the public authority. Nothing in section 90 of the Act restricts the exercise of power of judicial review to only procedural defects in the decision of the NCC in the purported exercise of powers conferred on it by the said section. The source of worry with the provisions of the said section however, is the exclusive appropriation of judicial powers by the NCC to the total exclusion of the provisions of ‘any other written law’, including the Constitution. It does not also seem that the purport of the said section is a mere acknowledgement that ‘special competence is required to handle issues arising in the industry’. There are a plethora of instances where the court in course of proceedings invites expert opinion or expert evidence of some witnesses to arrive at the justice of a matter. Besides, there are also provisions in rules of court11 enabling the court to refer certain special or technical matters to special assessors or referees for special determination and subsequent transmission back to the court for final decision. This would have been contemplated by the legislature and reflected in the vexatious section 90. Thus, the view of Dodo, that matters for determination et cetera under section 90 ‘ought to be 9 D D Dodo, ‘The Role of the Legislature and the Judiciary in the Nigerian Communications Industry’ in Proceedings of the Workshop for Judges on Legal Issues in Telecommunications, 15 – 17 February, 2006, Abuja, pp. 119 – 120, italics supplied. 10 Nigerian Communications Commission v MTN Nigeria Communications Ltd. (2008) 7 NWLR (Pt. 1086) 229, and a line of other cases. 11See for instance Order 27 rules 2 to 6 of the High Court Rules of Enugu State 2006. Page | 107 AGBO: Ouster Provisions and Judicial Review in the Nigerian Communications Act: An Overview referred by the courts to the NCC’ is, with all due respect, too speculative. If that were the intention of the legislature, it could have been expressly so stated in the Act. The provisions of section 90 seem strict sensu, not a condition precedent per se, but a naked attempt at usurpation of judicial powers. It appears well settled that the courts will disregard any enactment which purports to usurp or whittle down the judicial powers conferred by the Constitution. Thus: The courts would disregard any statute that seeks to regulate and obliterate their judicial powers conferred on them by the express provisions of the Constitution, the supreme [law] and grundnorm of Nigeria. By virtue of the provisions of section 6 of the 1999 Constitution, the judicial powers vested in the various courts created by the Constitution are constantly unassailable. An enactment will therefore be considered oppose to the constitutional provisions vesting judicial powers in a court if it had provided for sharing the judicial powers with any other body other than the courts in which it is vested by the Constitution, or purported to remove judicial powers vested in the courts or define it in a way to whittle it or limit the extent of the power vested or conferred on the court by the Constitution… Put in other words, no provision of any enactment save the express provisions of the Constitution itself can confer powers and rights limiting the supreme judicial powers conferred on the courts by section 6 of the Constitution. Therefore, the provisions of any other law which improperly restricts, impedes, or curtails a complainant from commencing an action as laid down by constitutional provisions will be disregarded and declared void.12 There is need for urgent legislative intervention by the National Assembly to amend the said section to bring it within the confines of the Constitution. The legislative action herein canvassed is in accordance with the provisions of sub-section (3) of section 1 of the Constitution to the effect that ‘if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void’. Akin to the foregoing are the provisions of sub-section (2) of section 94 of the Act which appear to convey a similar purport as the proviso to sub-section (2) of section 78 of the Act. Sub-section (2) of section 94 of the Act provides: A person shall obtain a certificate from the Commission for leave to proceed to the court for enforcement of the provisions of this part (of the Act ie on General Competitive Practices) except in the case of an injunction. The proviso to sub-section (2) of section 78 also requires a certificate for leave to proceed to court for enforcement of the decision of the Commission. 12Per Omoleye JCA in Njikonye v MTN Nig. Communication Ltd (2008) All FWLR (Pt. 413) 134 at pp. 1368 – 1369. S. 78(2) of the Act similarly encroaches upon the constitutional right of a citizen to unimpeded access to the courts. Page | 108 AJLHR 3 (1) 2019 It is again inexplicable why a person should obtain a certificate from the NCC for leave to proceed to court for ‘enforcement’. It is therefore, reiterated that this apparent condition precedent derogates the constitutional right of a person to access the court of law to vindicate his cause. The powerful dictum of Karibi-Whyte JSC in E. C. Amadi v Nigerian National Petroleum Corporation13 is quite instructive in this respect. According to his lordship: Regulations of the right to access to the courts abound in the rules of procedure and are legitimate. It seems to be accepted that when an enactment regulates the right of access to the courts in a manner to constitute an improper obstacle to access to court, such enactment could be appropriately regarded as an infringement of section 33(1) of the Constitution14. The sub-sections should be expunged from the Act by the National Assembly at the earliest opportunity. 3. Judicial Review Judicial review is a general principle of law by which if an act of a public authority which is in excess or ultra vires the powers conferred on it by an enabling law; or if the power though not in excess, but is used improperly, or takes into consideration matters that are irrelevant to the issue, then such act or power will be declared null, void and of no effect by the courts15. The point appears to be more succinctly put by Nwabueze as follows: Judicial review is the power of the court, in appropriate proceedings before it, to declare a governmental measure either contrary to, or in accordance with, the Constitution or other governing law, with the effect of rendering the measure invalid and void or vindicating its validity and so putting it beyond challenge in the future16. The scenario of validating an act or measure in question is thought as implying that the act or measure lacked validity prior to the court pronouncing in its favour. This is stricto sensu not the case. Thus, an act of a competent governmental authority or agency done in exercise or purported exercise of its power under the Constitution or other laws has apparent validity until the court decides otherwise. 13 (2000) 6 SC (Pt. 1) 66 at p. 65. 14 S. 33(1) of the (1979) Constitution therein referred which bothers on the right of fair hearing is captured in S. 36(1) of the (1999) Constitution. 15P. A. Oloyede & D. O. Aihe, op cit, p. 447. Sec also Iwuji v. Federal Commissioner for Establishment (1985) 1 NWLR 497; E O. Lakanmi &Anor v A.G. (Western State) & Ors (1971) 1 UILR 201 where the Supreme Court held inter alia that the Forfeiture of Assets etc (Validation) Decree No. 45 of 1966 is nothing short of a ‘legislative judgment’ an exercise of judicial power and therefore ultra vires and invalid. 16 B. O. Nwabueze, Judicialism in Commonwealth Africa, (London: C Hurst & Company, 1981) p. 229. Page | 109 AGBO: Ouster Provisions and Judicial Review in the Nigerian Communications Act: An Overview Instances of this scenario that readily come to mind are where the court declines to rule for or against an act or measure. In consequence, the efficacy of the act or measure continues unimpaired without vindication by the court. On the contrary, the court may declare an act or measure unconstitutional and void if (a) it was not passed or done in the prescribed manner or form; (b) it is in violation of guaranteed rights; (c) it is in violation or usurpation of constitutionally conferred powers or jurisdiction of other organs of government such as the executive or the courts; (d) it is an unauthorized delegation or abdication of power to another or other organ(s); (e) it violates or usurps the powers of another constituent government in a federation; or (f) it otherwise conflicts with certain other provisions of the Constitution17. The ultimate implication of judicial review appears best appreciated in terms of checking and legitimizing acts and functions of governmental organs, agencies and authorities to keep them within legitimate limits allowed by the law18. The Act provides for judicial review subject to a number of conditions in section 88 thereof. Under the section, any person aggrieved by the decision of the NCC may appeal to the court for a judicial review of the Commission’s decision or other action. However, such decision or direction of the NCC, subject matter of an application for judicial review shall subsist and remain valid and binding until expressly set aside in a final judgment or order of the court. Besides, a person shall not apply to court for a judicial review unless and until that person has first exhausted all other remedies provided under the Act19. Section 88 is made subject to the conditions and procedure set down in section 87 of the Act. Section 87 provides that an aggrieved person may at any time not later than thirty days after the date of receipt of the NCC’s statement of reasons for its decision and any relevant information taken into account in making the decision, request the Commission in writing for a review of the Commission’s decision, specifying thereby the reasons and basis of the request. The NCC shall meet to review its decision, taking cognizance of the terms of the written request and shall, not later than sixty days of receipt of the request conclude its review of the decision and inform the aggrieved person in writing of its final decision and the reasons therefor20. Under the foregoing provisions of the Act, an aggrieved person must comply with the laid down conditions and procedure before becoming eligible as it were, to apply to the court for a judicial review of the decision or direction of the NCC. In other words, he must invite the NCC to sit on ‘appeal’ over its decision. This must be done by an aggrieved person within a specified period of thirty days and the reasons and basis therefor must also be stated. The NCC must also within sixty days of receipt of such written request carry out a review and hand down its final decision and the reasons therefor. In any event, the decision of the NCC remains valid and binding until reversed by the court. Perhaps, more devastating is the implication that a person is barred as it were, from applying to court for a judicial review until the person has first exhaust all other remedies provided under the Act. 17 Ibid. 18 AG. Bendel State v AG Federation (1981) 10 SC 1. 19 S. 88 (1) (2) and (3) of the Act. 20 Ibid, s. 87 (1)(2)(4). Page | 110 AJLHR 3 (1) 2019 It seems difficult to comprehend why a person aggrieved with a decision of the NCC must first apply to the same NCC to review its decision complained about before that person will be entitled to access the court for a judicial review of that same decision. The conditions and procedure laid down in the Act appear to be quite doctrinae and a palpable waste of time and resources. The procedure appears circumlocutory. Why must an aggrieved person first apply to the NCC for a review of its decision when ultimately the court remains the final arbiter clad with powers of review with finality of permanence? Besides, it is almost always difficult if not impossible, for an institution invited to review its decision, to hand down a radically different decision from that under review, which will be entirely new. It is important to note that although the NCC shall upon receipt of the said written request by an aggrieved person provide a statement of the reasons for its decision, such disclosure will not be made if it would breach confidentiality, or likely prejudice the fair trial of a person, or involve unreasonable disclosure of personal information about any person whether living or dead21. The courts have however, gone ahead to give effect to the said sections of the Act under review. Thus, in Nigeria Communications Commission v MTN Nigeria Communications Limited22 the issue before the Court of Appeal was whether the trial court has jurisdiction to hear and determine the respondent’s suit challenging the appellant’s decision on interconnect rate having regard to the fact that the respondent did not apply to the appellant for a review of the decision before filing the suit. This suit may be better appreciated on the facts. The appellant (defendant at the trial court) wrote a letter dated 03/02/2003 to all fixed and mobile telephone operators asking for a consultative meeting on all lingering issues in the telecommunications industry. The meeting was held on 06/02/2003 at which all participants agreed that the appellant should engage a consultant on the issue of arriving at the interconnect rate. The appellant complied with the request and presented the report of the consultant for discussion at a subsequent meeting in June. All operators were given up to August 2003 to make further imput on the report, which they did. The respondent (plaintiff at the trial court) made written and oral submissions. At the deadline of 03/12/2003, the appellant made a determination of the interconnect rate. The respondent being dissatisfied, instituted a suit by way of Writ of Summons claiming inter alia a declaration that the decision of the appellant conveyed to the respondent vide letter dated 03/12/2003 having been taken in breach of the respondent’s fundamental right to fair hearing guaranteed by section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, was null, void and of no effect whatsoever. The respondent also sought an order of perpetual injunction to restrain the appellant. The appellant raised a preliminary objection inter alia to the effect that the trial court had no jurisdiction to hear the suit because the respondent failed to meet the condition precedent for instituting the action for judicial review of the appellant’s decision. The trial court overruled the objection that the suit ought to have been commenced by way of application under the Fundamental Rights (Enforcement Procedure) Rules 1979, holding that complaint based on violation of the Constitution could be filed by any process. The court however, declined to rule on other grounds of the objection including that, based on non-fulfillment of condition precedent for judicial review of the regulator’s decision on the premise that they were matters for substantive trial. Dissatisfied with the 21 Ibid, s. 86. 22 [2008] 7 NWLR (pt. 1086) 229. Page | 111 AGBO: Ouster Provisions and Judicial Review in the Nigerian Communications Act: An Overview ruling of the trial court, the appellant appealed to the Court of Appeal. In unanimously allowing the appellant’s appeal and striking out the respondent’s cross-appeal, the Court of Appeal held that under section 88(1) of the Act, a person aggrieved with a decision or other action of the NCC may apply to court for judicial review of same. However, that right is subject to sections 87 and 88(2) and (3) of the Act. Thus, while section 87(3) of the Act provides that an aggrieved person should first forward a written request to the NCC for a review of its decision, section 88(3) of the Act provides that a person shall not apply to court for a judicial review of the regulator’s decision unless that person has first exhausted all other remedies available under the Act. In the instant case, the respondent should have first forwarded a written request to the appellant for a review of its determination as a condition precedent before seeking judicial review in the court. The respondent’s failure to meet that condition precedent robbed the trial court of its jurisdiction and the trial court should have struck out the case23. According to the Court of Appeal, a court can only be competent to entertain a suit if all the conditions precedent for invoking its jurisdiction have been fulfilled. Thus, any defect in competence is fatal because the proceedings are a nullity however well conducted and decided. In the instant case, the respondent failed to fulfill a condition precedent before commencing its suit for judicial review24. In Econet Wireless Nigeria Ltd v Nigerian Communications Commission25, which is similar to the case of Nigeria Communications Commission v MTN supra, the issue in contention was also a challenge to the determination of the interconnect rate by the NCC. The NCC challenged the jurisdiction of the court to entertain the suit on the ground that Econet had not followed the necessary procedural requirements before filing the suit. The Court upheld NCC’s contention and ruled that the Plaintiff (Econet) had not complied with the conditions precedent set out in sections 86 to 88 of the Act. The suit was therefore struck out26. Orakul Resources Ltd v Nigerian Communications Commission27 was also to the same effect that conditions precedent as set out in the Act were not complied with. The suit was also struck out. Perhaps, one of the most interesting cases on this point with special regard to the regulatory powers of the NCC to issue Spectrum Mobile Licenses is Blue-Chip Communications Co Ltd v Nigerian Communications Commission28. Herein the Plaintiff, Blue-Chip Communications Co. Ltd applied for a Third Generation (3-G) Spectrum Mobile License from the NCC pursuant to the Act and the regulator’s licensing procedures. The defendant in a letter dated 28/10/2003 addressed to the Plaintiff’s Counsel, refused the defendant’s application for a license on the ground that there is five year exclusively contract between it and the GSM operators by virtue of which no mobile license 23 Ibid, pp. 270 – 271. 24 Ibid, 257 – 258. See also Nduka v. Ezenwaku (2001) 6 NWLR (Pt. 709) 494; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Western Steel Works Ltd v Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (Pt. 30) 617; Abakaliki Local Government Council v Abakaliki Rice Millers, Owerri (1990) 6 NWLR (pt. 155) 182; Gambari v Gambari (1990) 5 NWLR (Pt. 152) 572. 25 (2004) 1 TLR 43. 26However, dissatisfied with the decision of the Federal High Court, Econet vide Appeal No. CA/A/83/2004 appealed to the Court of Appeal which upheld the appeal in part and remitted the suit back to the Federal High Court for a hearing de novo by another Judge. 27 Suit No. FHC/ABJ/CS/88/2004 delivered on 17/12/2004, cited in D O Dodo, op cit, at p. 83. 28 (2004) 1 TLR 23. Page | 112 AJLHR 3 (1) 2019 could be issued within the period. Dissatisfied with the decision of the defendant, the Plaintiff commenced an action in the Federal High Court by Originating Summons. The defendant filed a Notice of Preliminary Objection challenging the competence of the action in the main, for non- compliance with the conditions precedent set by the Act. The court held that the procedure laid down in sections 86, 87 and 88 of the Act are harmless steps which are prima facie targeted at sorting out all complaints against the NCC administratively, ostensibly to avoid needless litigation. The said provisions have been made pre-action conditions which must be exhausted before any aggrieved person can institute an action in court for judicial review. Dissatisfied with the judgment of the Federal High Court, the Plaintiff appealed to the Court of Appeal29 seeking inter alia an order restraining the defendant/respondent from refusing to grant it (the Plaintiff/Appellant) a 3-G Spectrum Mobile License. The Court of Appeal refused the supplications of the appellant, upheld the judgment of the Federal High Court and struck out the suit. In another suit, Celtel and MTN Nigeria Communications Ltd v Nigerian Communications Commission30 bordering on quantum of compensation payable by the Plaintiff to their subscribers for poor Quality of Services (QoS) as determined by the regulator, the NCC, the Plaintiffs applied to the Federal High Court for an interlocutory injunction restraining the defendant from adopting a certain proposed parameter to determine the said compensation. The defendant raised a preliminary objection for non-compliance with the conditions precedent as required by the Act. The court struck out the application and dismissed the suit for non-compliance with pre-action requirements of the Act. Dissatisfied with the decision, the Plaintiffs filed a Motion before the same court, seeking for an injunction pending appeal. The court on 20/03/2008 dismissed the plaintiff’s motion. 4. Implications of the Provisions As stated earlier, the judicial power of the State is vested in the court to hear and determine justiceable issues and disputes of whatever nature. Any attempt therefore, to oust the jurisdiction of the court or impede access to justice in the court will be tantamount to an affront against the ride of law31. It is our humble view that inhibitions imposed by the Act by way of ouster provisions or pre-conditions for access to courts for judicial review are needlessly dilatory, circulatory and frustrating. This is a case of law triumphant and justice prostrate. Such statutory impositions will not fairly enable the NCC to do a thorough review of its decision complained about. And even where it does, it cannot disclose all material facts involved in the exercise. This limitation will obviously weigh in the mind of not only the aggrieved person but also a reasonable person that justice has not been done. It appears under the circumstance, a daunting task to expect an aggrieved person to first exhaust all other remedies provided for in the Act before accessing the court for a judicial review of the NCC decision or direction complained about. This is because a review of such decisions is also centred on the NCC as the regulator, the decision maker and the reviewer put together. It seems difficult to get justice under this procedure. This is because as Hewart C. J. stated in his popular dictum in R v Sussex Justices ex 29 Appeal No. CA/A/108/M/2004. 30 Suit No. FHC/L/CS/909/2007. 31M. L. Uwais, op cit, p. 26. Page | 113 AGBO: Ouster Provisions and Judicial Review in the Nigerian Communications Act: An Overview parte McCarthy32: ‘It is not of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’. Similarly, as the very distinguished Lord Denning clearly put it in Metropolitan Properties Co Ltd v Lannon33, ‘justice must be rooted in confidence, and confidence is destroyed when right – minded people think the judge is biased’. Justice is the ligament that holds a civilized society in harmony. Its functionality finds expression in the application of the rules and principles of legal justice to social problems brought before the court, quasi-judicial and administrative bodies34, inclusive of the NCC in the process of decision making in regulator adjudication. According to Adaramola, functional justice: Connotes justice in the perpetual and inevitable balancing of jural relationships between individual citizens inter se, on the one hand, and citizens and communal institutions such as government and its agencies on the other… it demands that … there must be established a scheme or plan of distribution of claims and obligations which inspires confidence and commands acceptability among the people35. It follows therefore, that an unjust system of justice dispensation cannot instill confidence in litigants, or command acceptability among the people. On the contrary, it provides a ready recipe for organized disenchantment with the system and inspires an abandonment of the rule of law and a resort to self- help and violence. 5. Conclusion It is acknowledged that the telecommunications industry has flourished in Nigeria. This exponential growth of the industry has also thrown up a myriad of challenging issues and disputes. Much as there is need to protect the industry from unscrupulous gold-digging litigants, there is also a greater need to protect the alter of justice from unconstitutional curtailment of its powers to deliver justice and most importantly, to guarantee uninhibited access to justice through the instrumentality of the courts as provided for in the Constitution. There is therefore, need for legislative intervention to amend the Act accordingly to make it more people-friendly. The courts are also enjoined to give a more jurisprudentially proactive construction of the Act and the law as was done by the court in Njikonye v MTN Nigeria Communications Ltd36. This will promote a more healthy development and cohesion in the industry among all strata of stakeholders. 32(1924) 1KB 256 at p. 258 33(1968) 3 All ER 304 at p. 310 34 F. Adaramola, Jurisprudence, 4th edn, (Durban: Lexis Nexis Butherworths, 2008) p. 217. 35 Ibid 36 (2008) All FWLR (pt. 413) 134 Page | 114 AJLHR 3 (1) 2019 APPRAISING THE EXPANDED JURISDICTION OF THE NATIONAL INDUSTRIAL COURT UNDER THE 1999 NIGERIAN CONSTITUTION Abstract This paper attempts an appraisal of the expanded jurisdiction of the National industrial court of Nigeria in the light of statutory provisions and judicial decisions. From a humble beginning as a Court for the referral of trade disputes that could not be settled by mediation, conciliation or arbitration, the Court has now metamorphosed into a judicial colossus with exclusive jurisdiction over all labour and employment disputes as well as other broader industrial relations causes and matters. The paper found that the constitutionally expanded jurisdiction of the court has received judicial imprimatur in recent times. It also found that additional subject matter which the court had no clear jurisdiction on and others upon which it previously shared concurrent jurisdiction with the regular high courts has now come within the ambit of the exclusive jurisdiction of the Court. It further found that the raging controversy on whether or not the decisions of the court can be challenged at the Court of Appeal judicial authorities. This has produced the effect that appeals are now possible to the Court of Appeal from the decisions of the Court and the Court of Appeal is now the final court with respect to the subject matter jurisdiction of the National Industrial court. Keywords: Mediation, Conciliation, Arbitration, National Industrial Court, Jurisdiction, Appeals 1. Introduction The National Industrial Court (NIC) was first a creation of the Trade Dispute. Act.1Sections 14, 15,16,17,18 and 20 of the Trade Disputes Act provided for the Minister of Labour referring trade disputes to the Court for resolution. At the inception of the court, it was an inferior court whose orders were enforceable only through the enforcement mechanisms of the regular high courts. The jurisdiction of the court under the Trade Disputes Act was to adjudicate strictly only over ‘Trade Disputes’ and not disputes connected with contracts of private employment. The term ‘trade dispute’ has been given both a liberal and restrictive interpretation.2The liberal school views trade disputes as encompassing every kind of labour and employment dispute while the restrictive school is of the opinion that trade disputes are only disputes arising from general industrial and labour relations, to wit, disputes that has to do with an employer and a workers’ collective such as a trade union.. Whether or not the jurisdiction of the National Industrial Court extends to cover every employment *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. 1 Trade Disputes Act, Cap 432 Laws of the Federation of Nigeria, 2004. 2 T C Eze & A. G Eze, ‘ A Critical Appraisal of the Legal Framework for the Resolution of Trade Disputes in Nigeria’ in S. E. Edeko (ed) Law and Contemporary Issues,(2007, Department of Public Law, Ambrose Alli University, Ekpoma) Page | 117 EZE: Appraising the Expanded Jurisdiction of the National Industrial Court under the 1999 Nigerian Constitution dispute remains one of the controversies rocking the interpretation of the expanded jurisdiction of the Court. 2. Background to the Expanded Jurisdiction of the National Industrial Court In 2006, the National Industrial Court Act was enacted to confer jurisdiction on the National Industrial Court over Industrial/labour relations disputes as well as all other forms of employment disputes to the exclusion of all other courts in Nigeria..3These provisions made for the NIC’S exclusive jurisdiction were notwithstanding the fact that the state high courts and the high court of the Federal Capital Territory have unlimited jurisdiction over all civil causes and matters by the 1999 Constitution. Besides, the Labour Act also made provisions for courts that should handle certain labour matters. The situation become more confusing when it was realized that the regular High Courts which are vested with unlimited jurisdiction subject to the jurisdiction of the Federal High Court) are listed as superior Courts of records under the constitution while there is no such listing for the National Industrial Court.. By virtue of the 2006 Act however, the NIC seized to be a referral court and became a court with original jurisdiction over labour and employment disputes.4The Third Alteration Act to the 1999 Nigerian Constitution has now listed the NIC as a superior Court of records under the constitution in Nigeria.5 Under the 2006 Act, the Court became the final court on all labour and employment disputes. Appeals to the Court of Appeal could be countenanced only in respect of matters connected to the items listed as fundamental rights under the Constitution.6 The Third Alteration Act has however changed the situation by providing for appeals to the Court of Appeal as of right on matters connected to fundamental rights. It did not stop at that, it extended the right of appeal to all other decisions of the NIC subject however to the leave of the Court of Appeal.7The Act did not however state whether such leave should be sought and obtained before the commencement of the Appeal or the leave could be obtained in the cause of the appeal. If the leave is obtainable in the course of the appeal, then the appeal itself and the leave are not separable. This paper examines the current trends in the interpretation of the expanded jurisdiction of the NIC in the light of current judicial decisions. 3 Section 7, National Industrial Court Act, 2007 4T.C Eze & A.G. Eze, ‘A Critical Evaluation of the of the Jurisdictional Provisions of the National Industrial Court Act 2006’ in Nnamdi Azikiwe University Journal of Public and Private Law, (2008) Vol. 1, No. 1, pp. 153-162 5T C Eze, ‘ The Effect of the Third Alteration Act to the Nigerian Constitution on the Jurisdiction of the National Industrial Court’ in Nnamdi Azikiwe University Journal of Public and Private Law (2013) Vol. 6, No. 1, 6 Section 9(2) National Industrial Court Act, 2006. 7Section 243(2) Constitution of the Federal Republic of Ni8geria, 1999, (Third Alteration Act, No. 3, 2010) Page | 118 AJLHR 3 (1) 2019 3. Current Interpretations of the Expanded Jurisdiction of the National Industrial court In Coca Cola Nig. Ltd v Titilayo Akinsanya,8 two notable controversies associated with the jurisdiction of the National Industrial Court arose for determination before the Supreme Court. The first was the extent of the subject matter jurisdiction of the National Industrial Court. It should be recalled that when the NIC was a creation of the Trade Dispute Act, the convergence of its jurisdiction was limited to the determination and resolution of trade disputes. Trade dispute was defined under the Trade Dispute Act as ‘any dispute between employers and workers or between workers and workers connected with employment or non-employment, or any terms of employment and physical conditions of work of any person’.9 According to the above definition, for a dispute to come within the proper meaning of a trade dispute, it must involve an employer or employers and a group of workers. By implication, disputes over individual contracts of employment were excluded from, the classification of ‘Trade Dispute’ The NIC Act of 2006 appear to have removed this restriction when it conferred on the court exclusive jurisdiction over civil causes and matters relating to labour and industrial relations. Construing the use of the term ‘Labour’ and ‘Industrial relations’ by the act, the lid that restricted the Court’s jurisdiction to trade disputes only was effectively removed. When the Third Alteration Act to the\ 1999 Constitution came on stream, it gave further impetus to the inclusion of disputes arising from private employment contracts to the jurisdiction of the court by providing as follows; Notwithstanding the provisions of sections 251,257,272 and anything contained in the 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 (a) Relating to or connected with any labour, employment, trade unions, industrial relation and matters arising from the workplace, welfare of labour, employee, worker and matters incidental thereto or connected therewith…10 From the inception of the Third Alteration Act, 2010, defining the scope of the subject matter jurisdiction of the NIC to include disputes over private employment contracts became the correct interpretation of the law. The controversy however came up again in Cocacola Nig. Ltd v. Titilayo Akinsanya. The respondent/plaintiff, who was the plaintiff at the trial court was summarily dismissed by the appellant. She was the Human Resources Director of the defendant/appellant. She incurred some costs and 8(2017) 17NWLR (Pt. 1593) 78 @ 122 9Section 47 Trade Disputes Act, Cap 432, Laws of the Federation of Nigeria, 2004 10 Section 254©(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 ( as amended by the Third Alteration Act, 2010) Page | 119 EZE: Appraising the Expanded Jurisdiction of the National Industrial Court under the 1999 Nigerian Constitution expenses in the course of her work and submitted a claim for re-imbursement. The defendants/appellants refused to honour the claim but instead set up an audit committee to investigate her. The audit committee neither invited the plaintiff nor was its report made known to her. She was subsequently summarily dismissed by the appellant. She commenced an action at the National Industrial Court against the defendants/appellants claiming injunctive reliefs, the voiding of her dismissal and also special and general Damages in the sum of N150,000,000.00 (One hundred and fifty million naira. The defendants/appellants filed a preliminary objection to the suit on the ground that the National Industrial Court lacked jurisdiction to entertain suits on private employment matters. The NIC dismissed the application and the defendants appealed to the Court of Appeal, which upheld the decision of The National Industrial Court. The defendants/appellant further appealed to the Supreme Court wherein the plaintiff opposed the appeal on the ground that it was contrary to the provision of section 243(4) of the 1999 Constitution (Third Alteration) Act, No.3 of 2010). The Supreme Court further affirmed the judgment of the NIC and held that private contract of employment disputes were part of the subject matter jurisdiction of the National Industrial Court and that the Court of Appeal was the apex court with respect to appeals from the decisions of the National Industrial Court. By this decision, the law has become settled that private employment matters are part of the subject matter jurisdiction of the National Industrial Court. The Supreme Court also confirmed the Court of Appeal in the same judgment as the final appellate court for the decisions of the National Industrial Court when it upheld the objection of the plaintiff (Mrs. Titilayo Akinsanya) to the further appeal of the defendants/appellants (The Coca-Cola Group) to the Supreme Court. Thus, it also laid to rest the controversy as to whether or not the Court of Appeal is the final court on all matters within the subject matter jurisdiction of the NIC and which has been brought before it for adjudication. It is interesting to note that under the NIC Act of 2006, the NIC was the apex court on all matters within its exclusive jurisdiction except matters bordering on Fundamental human rights guaranteed by Chapter IV of the 1999 Constitution. The court therefore had the jurisdiction as the final court on all labour and employment matters before the enactment of the Third Alteration Ac. This has been expressed to be too gargantuan for a court of first instance.11 This position has however been altered by the Third Alteration Act to the 1999 Constitution.14 The Third Alteration Act to the 1999 Constitution provides as follows: (2) An appeal shall lie from the decision of National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this 11T.C Eze & A.G. Eze, ‘A Critical Evaluation of the of the Jurisdictional Provisions of the National Industrial Court Act 2006’ in Nnamdi Azikiwe University Journal of Public and Private Law, (2008) Vol. 1, No. 1, pp. 153-16 @ p. 161. Page | 120 AJLHR 3 (1) 2019 Constitution as it relates to matters upon which the National Industrial Court has jurisdiction. (3) An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal, as may be prescribed by an Act of the National Assembly; Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Court to the court of Appeal, such appeal shall be with the leave of the Court of Appeal. (5) The National Industrial Court shall have and exercise jurisdiction and power criminal cases 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. (6) Notwithstanding anything to the contrary in this Constitution, appeal shall he from the decision of the National Industrial Court from matters in subsection (5) of this section to the Court of Appeal as of right.12 It is clear from the foregoing provisions that the National Industrial Court is no longer the final court on labour and employment matters. Thus, where an issue of fundamental rights arises from matters within the subject matter of the jurisdiction of the National Industrial Court, appeal shall lie as of right to the Court of Appeal. Similarly, all decisions of the National Industrial Court made pursuant to its criminal jurisdiction are appealable to the Court of Appeal as of right. The significant shift however lies in Section 243 (3) which allows for appeals to the Court of Appeal with the leave of the Court of Appeal on all other decisions of the National Industrial Court. The implication of this provision is that appeals are now allowed for every decision of the National Industrial Court to the Court of Appeal. This is because in seeking the leave of the Court of Appeal to bring any appeal, the judgment in question as well as the notice and grounds of appeal together with the records of proceeding are transmitted to the Court of Appeal to enable it exercise its discretion to grant or refuse such leave. It is apposite that such an application for leave will only be denied where the records of appeal, and notice and grounds of appeal does not disclose a prima facie substance of appeal. It is submitted that where leave is refused by the Court of Appeal, the appeal could as well be said to have failed before it started. In summary, there is now a right of appeal from the decisions of the National Industrial Court to the Court of Appeal on labour and employment matters under the Third Alteration Act to the 1999 Nigerian Constitution. In Skye Bank PLC, Victor Anaemem Iwu,,13the respondent was formerly a staff of AfriBank PLC which later became Skye Bank PLC and finally Mainstream Bank Ltd. Somewhere along the line, he was dismissed for gross misconduct. He filed an action at the National Industrial 12Section 243(2)(3) and Section 254C(5)(6) of the Constitution of the Federal Republic of Nigeria 1999 ( as amended by the Third Alteration Act, 2010) 13(2017) 16NWLR (Pt, 1590) 24 @ 105-106 Page | 121 EZE: Appraising the Expanded Jurisdiction of the National Industrial Court under the 1999 Nigerian Constitution Court claiming arrears of salary and allowances owed him and other sundry benefits. The respondent filed an objection to the competence of the suit on grounds that parties were improperly constituted. The National Industrial Court overruled the defendant/applicant in that the National Industrial Court was not to be burdened by technicalities. The defendant appealed to the Court of Appeal while the plaintiff respondent contended that the appeal was incompetent on grounds that an appeal does not lie from the decisions of the National Industrial Court to the Court of Appeal on labour and employment matters. Before the court of appeal could deliver its ruling on the competence of the appeal, the appellant sought and obtained the leave of the Court of Appeal for a case stated to the Supreme Court. Three question were raised for determination at the Supreme Court, to wit, 1. Whether the Court of Appeal has the jurisdiction to hear and determine appeals arising from the decisions of the National Industrial Court. 2. Whether there was any constitutional provision that divested the Court of Appeal the power to hear and determine appeal from the National Industrial Court. 3. Whether the power of the court of appeal to hear appeals arising from the decisions of the National Industrial Court was limited only to that connected with fundamental human rights. The Supreme Court applied the provisions of the section 243(3) of the 1999 constitution (Third alteration act), 2010, and held that the Court of Appeal had jurisdiction to hear and entertain appeals from the National Industrial Court and that there was no constitutional provision divesting the Court of Appeal the power to entertain such appeals. It further held that appeals to the Court of Appeal from decisions of the National Industrial Court were not limited to matters of fundamental rights only. 4. Conclusion and Recommendations It is safe to conclude that the National Industrial Court has come a long way from its days as an inferior referral court for the resolution of trade disputes that could not be resolved at the stages of mediation, conciliation and arbitration. It is now a superior court of records with jurisdiction guaranteed by the 1999 Constitution (as amended). The jurisdiction of the court has expanded from trade disputes to all kinds of labour and employment matters as well as industrial relations. Furthermore, this expanded subject matters jurisdiction is to be exercised to the exclusion of all other courts in Nigeria. Consequently, the regular high courts have been divested of the power to adjudicate over disputes arising from contracts of employment whether in the private or public sector. Adjudication of such disputes is now within the exclusive jurisdiction of the National Industrial Court. The law is now also settled that appeals lie from the decisions of the National Industrial Court either as of right or by leave to the Court of Appeal. Similarly, the Court of Appeal is now firmly established as the apex court in labour and employment matters and all other disputes that fall within the jurisdiction of the National Industrial Court. For the purpose of exercising any jurisdiction conferred Page | 122 AJLHR 3 (1) 2019 upon it by the constitution or any other law, the National Industrial Court shall have all the powers of a high court and can even confer on itself additional powers beyond that of a regular high court to be more effective in the exercise of its jurisdiction. This means that the court is imbued with inherent powers to punish for contempt and can invoke all available common law and statutory writs for the enforcement of its orders. Finally, the court is now composed of only legal practitioners as the judges of the court and unlike the situation under the NIC Act of 2006 where nonprofessionals could be members of the panels of the court; a single judge can now competently preside over all the matters brought before the court. This is however subject to the direction of the president of the court.14 In view of the expanded jurisdiction of the court, it is recommended that each state, of the federation should have a minimum of three judicial divisions of the National Industrial Court to ensure ease of access by citizens. Second, environmental disputes should be included in the jurisdiction of the court to ensure cost effectiveness and as a way of decongesting the regular high courts. There should be a circumscription of the time allowed for appealing against the decisions of the Court to the Court of Appeal. This is in view of the enormous social and economic costs associated with trade disputes, labour, and employment squabbles. Finally, the court must ensure sustenance of its simplicity of procedure even in the face of an expanded subject matter jurisdiction. Exclusion of the application of the technical rules of evidence and other technicalities such as the court held in the case of Skye Bank Plc v Iwu should remain the order of the day in the court. This will ensure that hopeless and hapless workers and other vulnerable persons retain ease of access to the court. 14Section 254(E)(1) CFRN,1999,(Third Alteration Act) Page | 123 EYONGNDI & FABODE-BALOGUN: Supreme Court’s Decision in Mainstreet Bank Capital Ltd & Anor V Nigeria Reinsurance Corp Plc: Is the Supreme Court Pro-Arbitration? SUPREME COURT’S DECISION IN MAINSTREET BANK CAPITAL LTD & ANOR V NIGERIA REINSURANCE CORP PLC: IS THE SUPREME COURT PRO-ARBITRATION?* Abstract Unarguably, arbitration has become a universally acceptable means of settling commercial disputes which offers several advantages than litigation. In Nigeria, several legal and institutional efforts are being put in place to encourage the development of arbitration as a compliment to litigation despite several drawbacks. If arbitration would develop in Nigeria to an enviable height, the role of the judiciary cannot be overemphasized as the court plays vital roles before, during and after the arbitral proceedings. This paper through doctrinal research methodology, critically appraises the Supreme Court’s decision in the case of Mainstreet Bank Capital Ltd. v. Nigeria Reinsurance Corporation Plc by highlighting its implications on the development of arbitration in Nigeria. It identifies landmines that a person seeking stay of proceedings pending arbitration and drafting an arbitration clause/agreement, must note to avoid having a party litigates disputes intended to be arbitrated. The paper found the decision has re-echoed the point that an arbitration agreement in a contract; does not oust the jurisdiction of a court but merely suspends it. The paper recommends for the immediate review of the Arbitration and Conciliation Act 1988 to incorporate the developmental strides in the judgment and urges arbitration practitioners especially lawyers to subscribe to professional training for skill enhancement and professionalism. Keywords: Arbitration, Nigeria, Stay of Proceeding, Arbitration Agreement, Litigation 1. Introduction Today in Nigeria, several examples abound to the fact that arbitration is gaining general acceptability within disputes settlement circle as compliment to arbitration.1 This includes the consistent establishment of arbitration institutions in Nigeria such as the Lagos Court of Arbitration; Charter Institute of Arbitrators United Kingdom, Nigeria Branch, Charter Institute of Arbitrators of Nigeria, ADR Society of Nigeria and the various State Multi-doors Court Houses (MDCHs) has arbitration as * David Tarh-Akong EYONGNDI LLB (Hons) (Calabar), LLM (Ibadan) BL, Department of Private and Commercial Law, Faculty of Law, Bowen University, Iwo, Osun State, Nigeria. Email: [email protected] Phone Number: +2347033252212. He is current a Doctorate Candidate at University of Ibadan and his areas of research interest are International Commercial Arbitration, Labour and Industrial Relations Law and Private International Law. *Caroline A. FABODE-BALOGUN, LLB (Hons), LLM (OAU), MPhil (in view), BL, Department of Public and International Law, Faculty of Law, Bowen University, Iwo, Osun State. Phone: 08033936336. 1 D. T. Eyongndi, ‘International Arbitration Agreement under Nigerian Law: Form, Content and Validity’ Vol.1, No. 5, Babcock Socio-Legal Journal, 2016, P. 108. Page | 124 AJLHR 3 (1) 2019 one of the doors.2 Hence, the various High Courts Civil Procedure Rules (HCCPRs) makes room for amicable settlement of which arbitration is the most preferred option. While there has been consistent campaign by arbitration protagonists for its full entrenchment in Nigeria, the fact is that the role the judiciary has to play in order to achieve this is enormous. The reason is that aside the fact that before, during and after conclusion of arbitration proceedings, the Courts play vital roles, an arbitration agreement does not sequestrate the Court of jurisdiction over a dispute subject to arbitration. Thus, interestingly, Nigerian Courts have progressively taken a pro-arbitration posture in several matters pertaining to arbitration particularly stay of proceedings, appointment of arbitrator, enforcement and setting aside of arbitral awards, refusal or anti-arbitration injunction, etc. Recently, the Supreme Court of Nigeria delivered judgment in Mainstreet Bank Capital Ltd. v. Nigerian Reinsurance Corporation Plc.3 wherein the Court dealt extensively with several nuances of arbitration. Some of which include the meaning and nature of arbitration, the jurisdictional tension created by an arbitration clause/agreement vis-à-vis arbitral tribunal and Court, the important issue of stay of proceedings pending arbitration as provided for under section 4(1) and 5(1) of the Arbitration and Conciliation Act4, the binding effect of an arbitration clause between the parties. This decision has far reaching pronouncements on the desired growth and development of arbitration in Nigeria especially that the Supreme Court unequivocally, stated judicially delineate its hitherto sweeping statement in Obi Obembe v. Wemabod Estates Ltd.5 The main aim of this article is to examine the impact of this decision on arbitration in Nigeria by highlighting its merits and demerits and based on that make vital recommendations towards overcoming the demerits with a view to fostering the growth of arbitration. For the purpose of presentation, the article is divided into four parts. Part one contains the introduction. Part two is a review of the fact and decision in Mainstreet Bank Capital Ltd. v. Nigerian Reinsurance Corporation Plc.6 Part three discusses various nuances of arbitration that the case dealt with by highlighting the impact of the decision on these issues against the background of the clamour for growth of arbitration in Nigeria. Part four contains the conclusion and recommendation based on the findings in the preceding sections. 2. A Survey of Mainstreet Bank Capital Ltd. & Anor. v. Nigeria Reinsurance Corp Plc Before a review of the decision of the Supreme Court in Mainstreet Bank Capital Ltd. v. Nigerian Reinsurance Corporation Plc.7 is undertaken, it is pertinent, howbeit, passively to adumbrate on the 2 E. A. Akeredolu, ‘Enforcement of Alternative Dispute Resolution Agreements: What is New under the Lagos Multi-door Court House Law?’ Vol. 6, No. 1, Nigerian Bar Journal, 2010, Pp. 201-202. 3 [2018] 14 NWLR (Pt. 1640) 423. 4 Arbitration and Conciliation Act 1988 Cap. A18 LFNN 2004. 5 (1977) 5 SC 70 (Reprint). 6 [2018] 14 NWLR (Pt. 1640) 423. 7[2018] 14 NWLR (Pt. 1640) 423. Page | 125 EYONGNDI & FABODE-BALOGUN: Supreme Court’s Decision in Mainstreet Bank Capital Ltd & Anor V Nigeria Reinsurance Corp Plc: Is the Supreme Court Pro-Arbitration? subject of arbitration.8 According to Ajokwu9, arbitration is the fair resolution of a dispute between two or more parties by a person or persons other than by a court of law. It is the reference of a dispute by parties thereto for settlement by a person or tribunal of their own choice. Ajetumobi10 posits that arbitration is a form of alternative dispute resolution in which two or more parties agree to submit a dispute to the binding decision of a person called arbitrator who acts in a judicial manner in private, rather than to a court of law.11 He lists the flowing as prerequisites to a valid arbitration, the existence of a dispute12, an agreement to refer the dispute to arbitration when it arises, agreement to be bound by the award, and initiation of the arbitration.13 Eyongndi14 defines arbitration in the following manner, ‘arbitration is a private alternative dispute resolution mechanism where the parties to a contract either through an arbitration clause inserted in the contract or a post-dispute settlement agreement (submission agreement) agree to surrender their dispute to an arbitrator or a panel of arbitrators selected by the parties to hear in an adjudicatory manner the dispute between the parties in a place and time agreed upon by the parties whereby at the end of the proceedings, a decision known as an award is given which is final and binding on the parties to the arbitration.’ Sublime from the above definition is the fact that arbitration is private, flexible, confidential and informal.15 From the above definitions, one issue that needs further articulation is the question, is arbitration an ADR process? Thus, with regard to the statutory and institutional status of arbitration, in recent times, it has been doubted whether arbitration can be described as an ADR process. According to Orojo and Agomo,16 ‘the general stand on this issue is fluid in that opinions are divided.’ By its characteristic nature, arbitration has some of the features of ADR properly so-called and some of the features of 8J. D. M. Lew, L. A. Mistelis & S. Kroll, Comparative International Commercial Arbitration, London, Kluwer Law International, 2003, Pp. 1-3. 9F. Ajokwu, Commercial Arbitration in Nigeria: Law and Practice, Lagos, Mbeyi and Associates (Nig.) Ltd., 2009, P. 5. He posits that ‘therefore, arbitration is a method of dispute resolution in which a neutral third party, an arbitrator, conducts an evidentiary hearing and/or reviews written submissions from the parties. Upon consideration of the evidence, the arbitrator makes a legally binding decision which can be enforced in the same manner as a civil court judgment. The basis for the arbitration is the consent of the parties to submit or refer their dispute to arbitration. The strength of arbitration lies in the enabling law that confers it with the sanction of enforcement once a final award is made in a judicious manner.’ 10O. A. Ajetunmobi, Alternative Dispute Resolution and Arbitration in Nigeria: Law, Theory and Practice, Lagos, Princeton and Associates Publishing Co. Ltd., 2017, P. 105. 11See Hirst L J dictum in O’ Callaghan v. Coral Racing Ltd. [1998] WL 10444030, 1. 12See generally London & Amsterdam Properties Ltd. v. Waterman Partnership Ltd. [2003] EWHC 3059 (TCC). 13Ajetunmobi, (No. 8) Op. cit. P. 106. 14D. T. Eyongndi, ‘International Arbitration Agreement under Nigerian Law: Form, Content and Validity’ Vol. 1, No. 5, Babcock Socio-Legal Journal, 2016, P. 111. 15G. Ezejiofor, The Law of Arbitration in Nigeria, Lagos, Longman, 2005, P. 33. 16A. J. Orojo & M. A. Agomo, Law and Practice of Arbitration and Conciliation in Nigeria, Lagos, Mbeyi and Associates (Nigeria) Ltd., 1999, P. 4. Page | 126 AJLHR 3 (1) 2019 adjudication through court process. Thus, arbitration can be likened to a bat which has the features of a bird as well as a mammal. Since arbitration has the features of ADR which are absent in court litigation, it is regarded as an ADR process nonetheless. These ADR features of arbitration include autonomy of the parties, informality of the process and proceedings, confidentiality, privacy and intoxicity of outcome (relationship fostering). On the other, weighty arguments have been advanced in support of the position that arbitration is not an ADR process, in fact, dispute resolution mechanism have been classified into three, litigation, ADR and arbitration.17 Chukwuemerie18 in support of the view that arbitration is distinct and different from ADR and litigation posit as follows: Let it immediately be said very clearly that arbitration is no longer regarded as an ADR. Though an alternative to litigation in the general sense, experts in the field no longer see it as an ADR. Disputes resolution mechanisms are therefore now generally classified as litigation, arbitration and ADRs. However when exposure to (or awareness of) Western style arbitration and ADRs are new in a jurisdiction as they are in Nigeria, or awareness of the vibrancy of recourse to their customary law equivalents is dull amongst lawyers trained in Western law nuances (as the case also presently is in Nigeria), it is common to hear assertions-sometimes profuse and resolute – to the effect that arbitration is an ADR. A lawyer who has been sufficiently exposed to litigation... is well pleased to easily understand the principles and workings of arbitration and such ADR as conciliation. Ajetunmobi19 also advocates the in favour of the fact that arbitration is distinct from ADR although it shares certain similarities with it such as flexibility and this feature is what distinguishes it from litigation while the fact that it is conducted in a judicial manner makes it synonymous to litigation.20 Agomo and Orojo have present weighty arguments against classifying arbitration as an ADR process, they argue as follows: Arbitration is said to be closer to litigation in its approach. In the first place, an agreement to enter into arbitration will be enforced by the Courts whereas agreements to enter into an agreement to enter into an ADR process will not be. Secondly, in arbitration, the outcome is determined in accordance with an objective standard, the applicable law. In mediation, for example, any outcome is determined by the will of the parties. This is why it is often said that said that mediation is an ‘interest-based procedure’. Thirdly, in an arbitration, a party’s task is to convince 17 E. O. I. Akpata, The Arbitration Law in Focus, Lagos, West African Book Publishers Ltd., 1997, P. 163. 18 I. A. Chukwuemerie, ‘An Overview of Arbitration and the Alternative Dispute Resolution Methods (ADRs)’, A Journal of the Civil Litigation Committee of the Nigerian Bar Association, Lagos, Pearls Publishers, 2010, Pp. 100-118 at P. 100. 19 Ajetunmobi, (No. 8) Op. cit. Pp. 107-108. 20 See England and Wales Cricket Board Ltd. v. Kaneria [2013] EWHC 1074 (Comm) at 27, Per Cooke J. Page | 127 EYONGNDI & FABODE-BALOGUN: Supreme Court’s Decision in Mainstreet Bank Capital Ltd & Anor V Nigeria Reinsurance Corp Plc: Is the Supreme Court Pro-Arbitration? the arbitral tribunal of its case. On the other hand, in mediation, for example, since the outcome must be accepted by both parties and is not decided by the mediator, a party’s task is to convince or compromise with, the other side. Fourthly, mediation and conciliation, in many countries, are not subject to any statutory regulation. The position was the same in Nigeria until 1988 when the Arbitration and Conciliation Decree was promulgated. Part II of the Decree, section 55 and the Third Schedule to the Decree make provisions in respect of conciliation. In the light of what we have said above, it is submitted that arbitration is in a curious position when discussing ADR processes. It is basically a form of adjudication, though like ADR properly so-called, it is also an alternative to litigation.21 The above assertion is worthy of scrutiny. The assertion that ‘an agreement to enter into arbitration will be enforced by the Courts whereas agreements to enter into an agreement to enter into an ADR process will not be’ is misleading. Arbitration like any other ADR process within commercial sphere is purely contractual (subject to instances where it has been made statutorily as the first option for dispute resolution e.g. where a statute establishing an agency provides where the agency transacts with anybody and a dispute arises, arbitration or any other ADR process will first be resorted to, thus, any contractual obligation of the agency, is subject to such a provision) and once parties have so agreed on any mode of settling their dispute, upon its occurrence, the court would enforce such an agreement where same is valid and subsisting. Thus, it does not matter whether the agreement is a mediation, conciliation, negotiation, early neutral evaluation, mini-trial, rent a judge or arbitration agreement. Court recognition and enforcement is not an exclusive advantage of arbitration but any other lawful means of dispute resolution chosen by the parties including media, negotiation, conciliation, etc. Hence, to assert therefore that an agreement to arbitrate will be enforced and other ADR agreements will not be is not correct and enforcement of an arbitration agreement cannot be advanced as a distinguishing feature distinguishing it from ADR. The facts of the case are as follows: The Appellants commenced an action against the Respondent at the Federal High Court by way of Originating Summons. In the action, they sought several issues inter alia, determination of their shareholding status and rights in the Respondent, and their right to participate in the meetings and management of the Respondent pursuant to the MOU and underwriting agreement between the 1st Appellant and the Respondent. They sought 16 declaratory reliefs against the Respondent in the event that the suit was determined in their favour. Upon being served with the Originating Summons, the Respondent entered conditional appearance and filed a Notice of Preliminary Objection (NPO) to the jurisdiction of the Court on the ground that the Appellants failed to comply with clause 7 of the MOU, which provided that any dispute arising from the MOU may be resolve in accordance with the provisions of the ACA. The Appellants opposed the objection. 21 Orojo & Agomo, (No. 14) Op. cit. P. 5. Page | 128 AJLHR 3 (1) 2019 Subsequently, the Respondent file a counter-affidavit and written address in opposition to the origination summons; a motion for extension of time to file counter-affidavit and written address in opposition to the originating summons; and an affidavit of compliance. The Respondent denied most of the pertinent depositions of the Appellant in the affidavit in support of the originating summons and challenged the Appellant’s claim for dividends on the ground that none has been declared for its shareholders for ten year preceding the suit. The Appellants contended that the several acts of the Respondents constitutes waiver of their right to seek stay of proceedings pending arbitration as they have taken steps in the proceedings.The NPO and the originating summons were heard together and the learned Trial Judge held that pursuant to clause 7 and 8 of the MOU, arbitration was a condition precedent to activating its jurisdiction and that having failed or neglected to fulfill the condition precedent, the Appellants suit was premature. The NPO was upheld and the suit was struck out. The Appellants being dissatisfied with the Judgment filed an appeal at the Court of Appeal urging it to uphold their appeal and invoke its powers under the Court of Appeal Act to hear its originating summons on the merit. The Court of Appeal in its judgment held that the filing of processes against the originating summons by the Respondents did not amount to taking steps in the proceedings within the ambits of section 5(1) of ACA to bar them from applying to the court for stay of proceedings pending arbitration under the ACA. However, it held that due to the failure of the Respondents to fulfill certain conditions different from those prescribed in section 5(1) of the ACA, their application ought to have be refused. Consequently, the Court of Appeal allowed the Respondent appeal and set aside the judgment of the trail court but refused to hear the originating summons on its merit but transfer the suit to the general cause list to be heard by another judge. Thus, the Appellant being dissatisfied but some part of the judgment appealed to the Supreme Court which dismissed the appeal but made very remarkable pronouncement which has far reaching effects on the growth and development of arbitration in Nigeria on such matters as the nature of arbitration, the proper language in which an arbitration clause must be couched in, the steps which if taken by a party would amount to waiver of the right to apply for stay of proceedings under the ACA, binding effect of arbitration agreement between parties, the effect of an arbitration court on the jurisdiction of a court, etc. The arbitration pursuant to which the Respondent sought for an order of the court staying proceedings pending arbitration reads thus: This memorandum will be governed by Nigerian Law and any dispute arising therefrom may be resolved by the Arbitration and Conciliation Act, Cap. A18 LFN 2004 or any statutory modification or enactment thereof for the time being in force. It is agreed that any claim, controversy, or dispute under, arising out of, or with regard to the terms contained in this agreement shall be determined by a sole arbitrator to be appointed with the consent of the parties to such disputes, claims, controversy or difference. The place of arbitration shall be Lagos.’ Page | 129 EYONGNDI & FABODE-BALOGUN: Supreme Court’s Decision in Mainstreet Bank Capital Ltd & Anor V Nigeria Reinsurance Corp Plc: Is the Supreme Court Pro-Arbitration? The first paragraph of the above arbitration clause is faulty. The fault is in the choice of word for the lex arbitri. The supposed applicable law to the arbitration is the Arbitration and Conciliation Act, Cap. A 18 LFN 2004 however, instead of selecting it in a mandatory term of ‘shall’ or at least, ‘will’ it was provided in a permissive language of ‘may.’ Generally, an arbitration clause must be couched in mandatory language giving the impression that parties have an obligation to first and foremost subscribe to arbitration. There must be a command to arbitrate and not a mere intention to arbitration. Thus, it is inappropriate to use the word may in an arbitration agreement because it is permissive rather than mandatory and an unscrupulous party may exploit it to avoid arbitration. 3. Mainstreet Bank Capital Ltd. & Anor. v. Nigeria Reinsurance Corporation Plc. and the Development of Arbitration in Nigeria Several principles of arbitration were enunciated and expounded in this case. This section of the paper discusses them in no particular order. The principle of taking a step in the proceedings in application for stay of proceedings pending arbitration is foremost in the decision of the Supreme Court in the case. Of outmost importance in dispute resolution is the fact that adjudicatory powers of the Federal Republic of Nigeria by virtue of section 6 of the 1999 Constitution, resides in the Courts listed in section 6(5). This means that ordinarily courts have adjudicatory powers over all disputes between individuals and even government and its agencies. This notwithstanding, parties subject to certain exceptional instances, parties can choose to settle their disputes especially those of a commercial nature by means other than the courts. Thus, where parties so decides, the Courts are statutorily enjoined under the Arbitration and Conciliation Act22 to give effect to this agreement.23 Thus, it is possible for a party if defiance to such an agreement to commence proceedings in court on a subject matter which the parties have agreed to settle through arbitration. Where this happens, the other party has the options of waiving the agreement and litigates or applies to the court to stay the proceedings and refer the parties to arbitration.24 The above position is the purport of sections 4 and 5 of the ACA. For clarity sake, section 5 of the ACA provides as follows: If any party to an arbitration agreement commences ay action in any court with respect to any matter which is a subject of arbitration agreement any party to the arbitration may, at any time after appearance and before delivering any pleading or taking any steps in the proceeding, apply to the court to stay the proceedings. A court to which an application is made under subsection (1) of this section may, if it is satisfied-(a) there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement; and (b) that the applicant was at the time when the action was commenced and still remains 22Arbitration and Conciliation Act 1988 Cap. A18 LFN 2004. 23 Section 2 Arbitration and Conciliation Act 1988 Cap. A18 LFN 2004. 24 Section 4 and 5 Arbitration and Conciliation Act 1988 Cap. A18 LFN 2004. Page | 130 AJLHR 3 (1) 2019 ready and willing to do all things necessary to the proper conduct of the arbitration, make an order staying the proceedings. Thus, the Respondent case against the Applicants’ originating summons was that it was brought contrary to the provisions of clauses 7 and 8 of the MOU. Particularly clause 7 thereof provides that disputes between the parties would be submitted to a one man arbitration panel to be conducted in accordance with the provisions of the ACA.25 However, the Respondents in applying to the Trial Court to stay proceeding and order the parties to arbitrate took certain steps beyond the expected steps. Before there is further amplification on this, it is germane to highlight a crucial sublime point made by the court with regard to the relationship between the jurisdiction of court and an arbitration clause or any other ADR clause in a contract. The court adopted the definition of arbitration as contained in Black’s Law Dictionary 8th Edition thus ‘arbitration is a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.’26 The neutral third party referred to in the definition is the arbitrator as the court had held in cases such as Nigerian National Petroleum Corporation v. Lutin Investment Ltd. & Anor.27 and Kano State Urban Development Board v. Fanz Construction Company Ltd.28 The Court succinctly described the nature of arbitration by emphasizing that it is purely consensual. Thus, the parties have a choice, they may choose to have their dispute resolved by a court of law or they may choose to have it decided by an arbitrator as it was held in Ras Palgazi Construction Co. Ltd. v. Federal Capital Development Authority29 Deductively, it can be safely asserted that every arbitrable dispute is a litigable dispute but not every litigable dispute is arbitrable and this partly underscores the doctrine of arbitrability and the immutability of the jurisdiction of the court by an arbitration agreement.30 Thus, where the parties opt for arbitration as opposed to litigation, they are at liberty based on the principle of party autonomy to choose the how the arbitration is to be conducted as well as the law that will guide the procedure provided this does not contravenes the public policy for the time being applicable. Thus, based on this agreement of the parties, the duty of the court is to respect same and pronounce on it and not to make a contract for them or rewrite the one they have already made as was held in J.E.S. Investments Ltd. v. Brawal Line Ltd. & Ors.31 and Sona Breweries Plc. v. Peters.32 This, goes to show that an application for stay of proceedings pending arbitration is an attestation to the fact that an 25[2018] 14 NWLR (Pt. 1640) 423 at 433-434, Paras. G-A 26 Ibid, at P. 444, Paras. B-C. 27 [2006] 2 NWLR (Pt. 965) 506. 28 [1990] 4 NWLR (Pt. 142) 1. 29 [2001] LPELR-2941 (SC) at 12, Paras. E-F.; [2001] 10 NWLE (Pt. 722) 559. 30M. O. Ajayi, D. T. Eyongndi & K. O. Onu, ‘Arbitrability and the Doctrine of Party Autonomy under Nigerian Arbitration Law: Same or Strange Bed Fellows?’ Vol. 6, University of Ibadan Journal of Public and International Law, 2016, Pp. 169-172. 31 [2010]18 NWLR (Pt.1225) 495. 32 [2005] 1 NWLR (Pt. 908) 478. Page | 131 EYONGNDI & FABODE-BALOGUN: Supreme Court’s Decision in Mainstreet Bank Capital Ltd & Anor V Nigeria Reinsurance Corp Plc: Is the Supreme Court Pro-Arbitration? arbitration clause or any other none litigation dispute resolution clause in a contract does not oust the jurisdiction of court but at most, merely keeps the court’s jurisdiction at abeyance. This is the reason the application is for the court to ‘stay proceeding pending arbitration’ and not to ‘quash’ or ‘prohibit’ the court from further proceedings. Thus, a court can only stay proceedings over a dispute that it has the power to conduct the proceedings and not otherwise. Hence, a stay of proceedings is an action in exercise of jurisdiction to conduct the proceedings. This point was underscored by the Supreme Court in Obembe v. Wemabod Estates Ltd.33 Per Fatia-Williams JSC (of blessed memory) thus: As we have pointed out, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission.34 Thus, it is based on the fact that the jurisdiction of the court is not ousted that is why an application for stay of proceedings can be made pursuant to section 5(1) of the ACA. Thus, any decision or statutory provision that seeks to limit the extent to which the court can intervene in arbitration is null and void to the extent of its inconsistency because it seeks to oust the jurisdiction of the court.35 Thus, stay of proceedings is not as of right but discretionary. As to application for stay of proceedings, the law is that a party seeking the court to exercise its discretion to grant stay of proceedings, ‘must have taken no step in the proceedings.’36 Thus, where a party takes a step beyond seeking for a stay of proceedings, he/she will be deemed to have waived the right to seek a stay of proceedings and therefore unintended opted to litigate. The principle of taking a step in the proceedings was enunciated by Fatai William CJN (of blessed memory) in Obembe v. Wemabod Estates Ltd.37 in a rather omnibus manner as the court did not specify step (s) if taken by an applicant, would amount to waiver of the right to seek a stay of proceedings. Thus, in the case under review, the Respondent/Applicant at the trial court had taken various steps in response to the originating summons. These steps includes the filing of a counter affidavit and written address in opposition to the originating summons filed on 24/11/2014; motion on notice for extension of time to file the counter affidavit and written address in opposition to the originating summons files on 26/11/2014; and affidavit of compliance filed on 26/11/2014. These are steps beyond applying for a stay of proceedings. The Court of Appeal had it in plausible manner attempted to periscope the rather blanket statement of Fatia William CJN in the case 33 (1977) 5 SC Reprint 70. 34 See also City Engineering Nigeria. v. Federal Housing Authority (1997) LPELR-868 (SC) at 21-25 Paras. D-C. 35 See generally section 34 Arbitration and Conciliation Act 1988 Cap. A18 LFN 2004. 36 M. V. Lupex v. N. O. C. & S. Ltd. [2003] 15 NWLR (Pt. 844) 469. 37 (1977) 5 SC Reprint 70. Page | 132 AJLHR 3 (1) 2019 of Wemabod Case38 which failed to define steps that once taken will defeat an application for stay of proceedings. In the case of Onward Enterprises Ltd. v. M V Matrix & Anor.39 it was held that application for extension of time, filing of an affidavit in opposition to summons for summary judgment, service of a defence, application to the court for leave to serve interrogatories or for a stay of proceedings pending the giving of security or cost or for extension of time to file defence are all steps that once taken would bar the right to apply for stay of proceedings as was reiterated in Fawehinmi v. O. A. U.40 Thus, merely entering an appearance whether conditional or not is neither controlling nor relevant to the party’s right to rely on an arbitration clause as was held in Nisan (Nig.) Ltd. v. Yaganathan41 What really matters is the nature of the step taken by an applicant after entering an appearance.42 Despite the acts taken by the Respondent in the case under review, the Court of Appeal held that they did not constitute steps precluding it from applying for stay of proceeding. This finding of the Court of Appeal is contrary to its earlier position in cases such as M V Panormos Bay v. Ola (Nig.) Plc.43 and Sino-Afric Agricultural & Industrial Company Ltd. & 2 Ors. v. Ministry of Finance & Incorporation & Anor.44 Hence, the Supreme Court aptly recognized this anathema and held that: …with due respect to the lower court, it was wrong when it held that the steps taken by the respondent after the filing of the preliminary objection did not preclude it from applying for stay of proceedings pending arbitration vide section 5(1) of the ACA… any step taken apart from seeking a stay of proceedings (or seeking to oust the jurisdiction of the court) amounts to a step in the proceedings and the applicant is presumed to have waived his right to insist on the arbitration agreement. Indeed, in this instant case, having not objected to the preliminary objection being heard along with the originating summons, it was evident that if the objection was overruled, the court would proceed to determine the substantive case. By this pronouncement, the Supreme Court has unequivocally catalogued steps that if taken by an applicant for a stay of proceedings, would preclude him from urging the court to exercise its discretion toward granting same. While this for the time being is the position of the law as regard application for stay of proceedings pending arbitration, it is unlikely that the court would deemed that an applicant who due to the perishable nature of the subject matter or extreme urgency to preserve the res, makes 38 (1977) 5 SC Reprint 70. 39 [2010] 2 NWLR (Pt. 1179) 530 at 551, Paras. A-E. 40 [1998] 6 NWLR (Pt. 553) 1 at 183, Paras. E-F. 41 [2010] 4 NWLR (Pt. 1183) 135. 42 Enyelike v. Ogoloma [2008] 14 NWLR (Pt. 1107)247. 43 [2004] 5 NWLR (Pt. 865) 315. 44 [2014] 10 NWLR (Pt. 1416) 515. Page | 133 EYONGNDI & FABODE-BALOGUN: Supreme Court’s Decision in Mainstreet Bank Capital Ltd & Anor V Nigeria Reinsurance Corp Plc: Is the Supreme Court Pro-Arbitration? an application other than merely entering an appearance and applying for the stay is precluded. It is unconscionable to expect that where it is necessary to take preservatory steps in the interest of the subject matter, the applicant right to arbitrate should be sequestrated. For example, where the respondent enters an appearance and applies for a mareva injunction45 against the party who is overtly removing assets from the jurisdiction of the Court as well as seat of arbitration to frustrate the outcome of an award; it would be fools hardy to expect such a party to fold his arms and allow the perfection of such a roguish act. While an arbitration award can be executed anywhere in the world, the justice system must be operated it a manner that a party is saved from avoided expenses and an act done in furtherance of this should not prejudice a person’s right. Thus, steps taken in a situation where expedience requires it would not be deemed as foreclosure to the right to apply for stay of proceedings because they are beyond the control of the party who is constrained to take them to preserve his interest. Another fundamental issue highlighted in the case is the appropriate language in which an arbitration clause ought to be couched in. It is not enough to just have an arbitration clause inserted in a contract or as an independent agreement either before or after the occurrence of a dispute but same must be capable of achieving the intention of the parties to arbitrate in the event that a dispute occurs. Thus, an arbitration clause must be couched in clear and unambiguous terms as it pertains to the number of arbitrator, the seat of arbitration, the language of the arbitration, the applicable law, the procedure for conducting the arbitration, etc. The fact that the parties intend that their dispute should be resolved by arbitration must be so clear that no other intention can be conceived from the totality of the arbitration agreement. The arbitration agreement in the case under review was couched in a way that the applicable law (i.e. the Arbitration and Conciliation Act) was made applicable discretionary. The arbitration clause in the MoU between the parties was couched as follows ‘this memorandum will be governed by Nigerian Laws and any dispute arising therefrom may be resolved by the Arbitration and Conciliation Act Cap. A18 LFN 2004 or any statutory modification or enactment thereof for the time being in force.’46 The intention of the parties as far as the lex arbitri and mode of settling any potential disputes is through arbitration to be regulated by the ACA. However, the use of the discretionary word ‘may’ in the selection of the applicable law is anomalous. The implication of this is that any party could choose not to be bound by the ACA as far as the arbitration is concerned. This practice should be avoided as it creates opportunity for avoided disagreement which may lead to delay. Ajokwu,47 in support of the need to draft an arbitration agreement in clear and unambiguous words, posits that: In drafting an arbitration agreement, it must be clear from the wordings of that contract that the parties intend to have their dispute resolved by arbitration, and not by the courts. If this intention is blurred or cannot be inferred on the face and substance of the agreement, then there is a defective basis for arbitration. The arbitration clause must not be ambiguous of the options available to parties, as between going to arbitration or going to court. 45 This is a preemptory equitable injunction granted by the Court to prevent a party from removing his assets from the jurisdiction of the Court so that where the judgment of the Court is rendered against him/it, the judgment creditor would be able to satisfy the judgment by execution. 46 [2018] 14 NWLR (Pt. 1640) 423 at 443-444, Paras. H-A. 47 Ajokwu, F., (No. 9) Op. cit. P. 38. Page | 134 AJLHR 3 (1) 2019 Thus, it is germane for the parties to ensure that the wordings of their arbitration agreement are framed in mandatory terms which are clear and unambiguous explicating the fact that they have agreed that arbitration rather than any other dispute resolution mechanism, including litigation is the means through which their dispute is to be settled. 4. Conclusion Arbitration has become the dispute settlement jewel of persons engaging commercial transaction because of its several advantages over other dispute resolution mechanism. Arbitration has grown and acquired a distinct stature and status from litigation and ADR to the extent that in classifying dispute resolution mechanisms, they are grouped in litigation, ADR and arbitration. The growth of arbitration in Nigeria is catalyzed not only by the fact that it has statutory support but it has received judicial fortification. A classic example is the case of Mainstreet Bank Capital Ltd. v. Nigerian Reinsurance Corporation Plc.48 the Supreme Court in this case has laid to rest the contentious issue of how to successful stay court proceedings and order parties to arbitrate pursuant to their arbitration agreement which has been neglected. The Supreme Court in a commendable manner has outlined steps that if taken by applicant will sequestrate his right to have the proceedings stayed. Also, the court has laid down the tone of language an arbitration clause which parties expect to be recognized and enforced must be couched in. it is not enough to have an arbitration clause, same must be couched in mandatory term clearly indicating the fact that it was intended to be abide by failure to so, would exculpate parties from abiding by it. Thus, person (individual or corporate bodies) and counsel selecting arbitration must ensure that their arbitration agreement is couched in mandatory terms in order for the court to enforce same. Thus, it is trite that the Supreme Court of Nigeria has demonstrated beyond any iota of doubt, that it is pro-arbitration. Based on the above, it is hereby recommended that to give statutory backing to the decision of the Supreme Court as regarding steps that if taken would defeat an application for stay of proceedings; the Arbitration and Conciliation Act be amended to incorporate the steps listed in the decision. Also, there is the need for arbitration practitioners and the justice delivery sector to continue to enlighten the public on the benefits of arbitration as an alternative to cantankerous litigation so that more persons can embrace it. 48[2018] 14 NWLR (Pt. 1640) 423. Page | 135 EMELIE: The Place of Rural Women in Environmental Protection in Africa THE PLACE OF RURAL WOMEN IN ENVIRONMENTAL PROTECTION IN AFRICA* Abstract This paper examined the place of rural women in environmental protection in sub-saharan Africa. Observations in our immediate surroundings on women and the environment show that women are significant actors in natural resources management and they are major contributors to environmental rehabilitation and conservation. We looked at the major contributions of women to environmental protection, challenges faced by women in their efforts to manage the environment. We discovered that women play important role in environmental protection and suggested that proper orientation, governmental support among others will go a long way in enhancing women participation in environmental protection. Keywords: Rural Women, Environmental Protection, natural Resource Management 1. Introduction The Beijing platform for action adopted by fourth world conference on women in 1995 proposed strategic objectives and specific actions in critical areas of concern, which taken together would contribute to building an enabling environment for women’s participation in national development. It has also stated that it is essential to design, implement and monitor effective, efficient and mutually reinforcing gender sensitive policies and programmes and institutional mechanisms that will foster the environment and advancement of women1. The broad understanding of women’s participation in development expressed in the Beijing Declaration and Platform for Action complements the concept of women’s participation in all areas of public life contained in the convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).2 The Beijing Platform for Action notes the linkages between poverty, natural disaster, health problems, unsustainable development and gender inequalities. It notes the importance of a holistic and multidisciplinary approach in dealing with environmental issues3. The Platform examined the issue of women and the environment and emphasized the essential role that women play in the development of sustainable and ecologically * C.I.N. EMELIE, PhD, Lecturer, Faculty of Law, Chukwuemeka Odumegwu Ojukwu University, Igbariam Campus, Anambra State. Phone : 0803-768-3043, 0802-332-0179. E. mail: reachmeifeyinwa @ yahoo.com. 1‘Enhancing Participation of Women in Development Through an Enabling Environment for Achieving Gender Equality and The Advancement of Women’ U.N.O Division for Advancement of Women, Expert Group Meeting , Bangkok, Thailand, 8-11th November 2005, p2. 2 Ibid at 246- 252. 3 A.G Shettima, Gender Issues in Monitoring the Environment: The Case of Rural Nigeria, A paper presented at the 39th Annual Conference of The Nigerian Geographical Association 5th-8th May, University of Maiduguri. Page | 136 AJLHR 3 (1) 2019 sound consumption and production patterns and approaches to natural resource management and stressed the need for women to participate in environmental decision making at all levels. Women through their roles as farmers and as collectors of water and firewood have a close connection with their local environment and often suffer most directly from environmental problems. This direct contact with the environment has also resulted in an in depth knowledge about the environment. Aside this, they are also protective and caring about their environment4. Women in the course of carrying out their domestic and household activities interact more with both their natural and built up environment, consequently, they are more likely to suffer from a degraded home, neighborhood and city environment and to shoulder more of the burden that go with living in a degraded environment5. 2. Conceptual Framework Rural Women- there are adult females who live, work and carry out other activities in their rural communities of our nation. The rural women constitute one fourth of the world’s population6. About 79.2% of the rural women are said to be involved in farming and contributed significantly to land / soil conservation 7. The contributions of the rural women to community development cannot be overemphasized. According to the United Nations, community development is the process by which the efforts of the people themselves are united with those of government authority to improve the economic, social and cultural conditions of communities to integrate these communities into the life of the nation and to enable them to contribute fully to national progress8. Environment Protection means the act of giving maximum protection to the environment for the benefit of both the present and future generations. The protection of the environment is now a vital concept in the contemporary human right doctrine. It is a sine qua non for other numerous human rights. The Nigerian environment like others is a victim of human exploration because; of the quest for national development at the expense of sustainable development. However, present dispositions towards environmental protection have shifted beyond mere development to sustainable environmental development. 4 F.E. Etta , Maroko Law-Income Settlement in Lagos Nigeria: Gender and Urban Natural Resources Management in O.L. Smith, Women Managing Resources, Mazigira Institute, Nairobi, 1999 p2. 5 United Nations Women, (2012) http/www.unwomen.org/en/news/stories/2012/rural-women,t their contribution Accessed 4-4- 2018. 6 Z. Wuyep,etal, Women Participation in Environmental Protection and Management:, Lessons from Plateau State Nigeria, American Journal of Environmental protection 2.2, 2014, p32-36. 7 United Nations in I.Ejirefe, ‘The Challenges of Rural Women in Community Development: The case of Agbarha-otor, Delta State, Journal of Social Sciences, Vol. !4, IAUE, Port Harcourt, 2017, p205. 8 S. Mucavele, The Role of Rural Women in Agriculture. www.wfocma.org accessed 16/3/2018. Page | 137 EMELIE: The Place of Rural Women in Environmental Protection in Africa 3. Major Roles Played by the Rural Women In Environmental Protection Rural Women in Agriculture Women are the backbone of the development of rural and national economies. They comprise 43% of the world’s agricultural labour force, which rises to 70% in some countries like Nigeria. In Africa, 80% of the agricultural production comes from small farmers who are mostly rural women. Women comprise the largest percentage of the workforce in the agricultural sector but do not have access and control over all land and productive resources9. Women make essential contributions to the agricultural and rural economies in all developing countries. Their roles vary considerably between and within regions and are changing rapidly in many parts of Africa in particular and the world in general, where economic and social forces are transforming the agricultural sector10. Formation of Environmental Group One of the first environmentalist movements which was inspired by women was the Chipko Movement (women free-huggers in India). The movement was an act of defense against the state government’s permission given to a corporate commercial logging11. Women of the village resisted, by embracing trees to prevent their felling, to safeguard their lifestyles which were dependent on the forests. The group adopted the slogan ‘ecology is permanent economy’12. Another such movement, which is one of the biggest in women and environment history, is the Green Belt Movement, which was given birth to by the Nobel Prize winner Wangari Maathai, which she founded on the world Environment Day in June 1977. The starting ceremony was that very few women planted seven trees in Maathai’s backyard. By 2005, 30 million trees had been planted by participants in the Green Belt Movement on public and private land- the move focused on restoration of Kenya’s rapidly diminishing forests as well as empowering the rural women through environmental preservation13. Water Resources Management Women are always at the centre of the management of the communal water resources and household water requirement14. Women provide water for their various domestic activities in rural areas and the 9 www.fao.org- docrep accessed 4/4/2018. 10S.K. Aditya, ‘The Role of Women in Environmental Conservation, Academic research journal, vol.4(4), Central University, Lucknow, India, 2016, p142-144. 11 Ibid 12 Ibid 13 F.E. Etta, op cit note 4, p3. 14 A Gender Perspective on Water Resources and Sanitation, Background paper 2, Commission on Sustainable Development, 2005, www.un.or/esa/sustde/esd/csd/csd 13/document/bground 2 pdf. accessed 6-3- 2018. Page | 138 AJLHR 3 (1) 2019 search for and carriage of water was solely women’s responsibility. In addition, there are specific examples of increased participation of women in water resource management at the local level. In Luanda, a community water supply and sanitation programme involves a woman led sanitation team with responsibility for 23 tap stands in 160 households. In the village water committee elects a water minder who is given the tools to maintain the water cistern and latrines. Up to 90% of the water minders are women. In Nkujo, most of the community water projects have been started and run by women15. Also in Okpuno-Etiti of Oba in Idemili south Local Government Area, Anambra State, about 85% of the community source of water were started and run by women. Participation in Biodiversity and Conservation Management Traditionally, women have been responsible for subsistence and survival for water, food, fuel fodder and habitat. Studies have shown that women and men often have different knowledge of plants, seeds and natural resources use and that women’s knowledge is often overlooked by planners and policy makers. Various initiatives have tried to overcome this bias and recognize and build on women’s work with natural resources. For example, an initiative involving the promotion and adoption of bean varieties discovered the critical importance of involving women in the process when women were consulted on the varieties to be tested, their selections proved to be highly popular16. Programme Development As far back as 1960 in Cameroun, the women were prominent with as the Corn-Mill Societies and engaged in micro-enterprises that protected communal forest and wood. Lots of other micro- enterprises ran by women flourished in the Oku-Kilum mountain. Also in Senegal, a programme for alternative energy sources and improved earth ovens, championed by society of women was successful in reducing fuel consumption17. Again, in Kenya, Malawi and Sudan, the initiatives aimed to improve the living and working conditions of women in rural households through the use of fuel- saving-wood-burning stoves, improved health and time savings for users of the stoves, as well as relief from the pressures caused by wood fuel shortages were huge success18. The women were at the forefront of these initiatives. 15 San Jose, Diversity Makes the Difference. IUCN (2004) www.gender and environment.org/admin bibliotela/documenttos/EVERYTHING%20COUNT. Pdf-accessed 16/3/2018 16 N.E. Ngwu, The Role of Women in Environmental Management- An Overview of Rural Cameroonian Situation; Geo Journal, 1995,p20. www.neb.nim.nin.90. Accessed 16- 3- 2018 17 B.K Njeuga, (2001) Upesi Rural Stoves Project in Kenya in Generating Opportunities: Case studies on Energy and Women, New York, UNDP. www.undp.org/energy/publications/2001. accessed 16 3- 2018 18 Beijing at 15 online report (UNEP) Women and the Environment, Gender Equality, Development and Peace. Gender Unit and UNHABITAT, 1st -26th February, 2010, p. 5. Page | 139 EMELIE: The Place of Rural Women in Environmental Protection in Africa 3. Factors Militating Against Women In Environmental Protection. Non Participation In Decision Making Despite the role of the women in environmental protection, women continues to be under-represented in decision making processes on the environment at all levels, internationally, nationally and particularly locally. In developing countries of Africa in particular, due to their role as primary provider of food, water and fuel fortheirfamilies19,women are affected by climate change but are also a pivotal force for building responses to direct climate change impacts. More importantly,women are frequently the decision-makers about household consumption and represent an increasing share of wealth around the world. Yet they are not included or allowed to participate in decision making roles in climate change bodies particularly at the national and local levels. The fundamental explanation for the lack of gender considerations in climate debates generally is the fact that women are poorly represented in planning and decision making processes in climate change policies, limiting their capacity to engage in political decisions related to climate change20. Women’s limited participation in decision making processes relate to almost all environmental sectors. Other obstacles to their participation include among others, lack of secure access to land, adverse financial conditions, women’s time constraints, public policy traditionally focused on the male population as head of household and gender division of labour along socio-cultural norms21. Lack of Awareness and Building Capacity of Women on Environmental Issues There seems to be an urgent need to create awareness and building capacity relating to gender and environmental issues by decision-makers and environmental stakeholders in order to achieve improved policies. This calls for educating and building the capacity of women (and men) as well as youth and children in matters that relates to gender and environmental issues in order to increase pressure on policy-makers and stakeholders. This is to make For effective mitigation and adaptation efforts and more importantly to bridge the gap between local action and decision making by bringing local experience to the decision making levels through advocacy and lobbying. The global knowledge base on gender and environment must also be increased through research, action learning and frequent knowledge exchange in order to identify a growing host of multiple benefits22. 19 Yianna Lambrou and Regina Laub, Gender, Local Knowledge and Lessons Learnt in Documenting and Conserving Agro biodiversity. Research paper No. 2006/69 United Nations University, UNU- WIDER. www.wider.unu.edu\publications\rps\rps2006\rps2006-69. pdf accessed 1- /3- 2018 . 20 International Fund for Agricultural Development, 2006. Gender and Desertification: Expanding Roles for Women to Restore Dry Lands. www.ifad.org/pub/gender/genderdesert. Pdf accessed 16 3- 2018. 21Elaine Enarson, Gender and Natural Disaster Working Paper No1, 2007 Geneva: ILO. www.ilo.org/public/english/employment/recon/crisis/download/criswp/. Pdf accessed 16/3/2018 22 UNEP Women and Environment, Op Cit Note 18, p5. Page | 140 AJLHR 3 (1) 2019 Non Appreciation of The Differential Impact of Natural Disaster on Women and Men (adaptation) With The Growing Environmental Instability It is expected that natural disasters will increase in frequency and impact. The importance of understanding the different impacts of natural disasters on women, men, boys and girls is to enable the government and stakeholders to put in place an effctive disaster preparedness and response system as well as international relief efforts23. Such adaptation actions are likely to be more effective if they are made using a decision making process that allows the full participation of all parties involved, particularly women, indigenous population and migrant groups. Issues such as access, control and distribution of disaster relief benefits must also be addressed. Vulnerability and capacity of a social group to adapt to change depends greatly on their assets. As such, next to their physical location, women’s assets such as resources and land, knowledge, technology, power, decision making potential, education, healthcare and food have been identified as a Determinant factor of vulnerability and adaptive capacity24 Technology Transfer, Non Gender Neutral Technology transfer is non gender neutral because women and men have different attitudes to any relationship with all aspects of technology. In many circumstances, environmental assessments are seen as technical exercises to becarried out by engineers and scientists, which has long been considered a ‘male domain’. For instance, a United Nations training manual designed to build capacity on environmental assessments has almost no attention to gender equality issues25. Despite women’s ingenuity and ability to improve with whatever materials they happen to have at hand, women in most parts of the world and Africa in particular are highly under-represented in the formal creation of new technologies yet they are active users of technology. Women’s specific needs in technology development, their access to technical information, tools and machines is often is very different from that of men. These differences must be recognized and integrated into our thinking about environmental protection. If technologies are to be used by both men and women, they must be designed to reflect the circumstances and preferences of both sexes. This is especially true in the case of technologies aimed at tasks most frequently performed by women26. 23 See IISD\UNEP. Capacity Building for Integrated Environmental Assessment and Reporting : Training Manual. 2000,www.iisd.org/pdf/geo manual 2. Pdf accessed 16/3/2018 24 L. Archibald and M.Conkouich, If Gender Mattered; A Case Study of Inuit Women, Land Claims and the Visey’s Bay Nickel Project. Research Paper, Status of Women Canada. www.swccfc.ac.ca/pubs/pubspr/0662280024/199911- accessed 16-- 3- 2018. 25 L. Archibald and M.Conkouich, If Gender Mattered; A Case Study of Inuit Women, Land Claims and the Visey’s Bay Nickel Project. Research Paper, Status of Women Canada. www.swccfc.ac.ca/pubs/pubspr/0662280024/199911- accessed 16- 3- 2018. Page | 141 EMELIE: The Place of Rural Women in Environmental Protection in Africa Environmental Protection Financing The government must apply a gender budgeting laws in mobilizing and disbursing environmental funds, which involves a systemic examination of government budget allocation to environmental challenges, for their different impacts on women and men as well as decision-making that promotes gender equality in raising and spending funds. For example, a just and sustainable financing framework for mitigation and adaptation must guarantee that the financial burdens of coping with environmental challenges are not transferred to those whose activities may contribute less to environmental protection. Financing policies for environmental protection mustexplicitly consider as well as respond to different experiences and needs of women especially those women who are on the socio-economic margins of the society (rural women). Non Recognition of Women as Agent of Change It is a fact that women and children tends to be the most to be affected whenever there is an environmental disaster. However, it is important to note that women are not vulnerable because they are ‘naturally weaker’, but because the conditions of vulnerability faced by men and women are different due to their gender. Women are capable of bettering themselves, they can become empowered change agents. They are not passive, they do not only wait to receive help, but are active agents with different capacities to respond to the challenges posed by the environment. Undermining Women’s Knowledge And Contribution It is obvious that women’s knowledge as well as the traditional roles they play in managing natural resources and food security is not appreciated. However, women are often excluded from participating in land conservation, in development projects and in policy. Not taking women’s knowledge about contribution into consideration in decision making is likely to conceal women’s knowledge and practices that are related to environmental resources. Women’s knowledge and contribution are down played by using a top-down approach. 4. Way Forward for Effective Rural Women Participation in Environmental Protection. Our crave for effective rural women participation in environmental protection is achievable if the following recommendations are implemented: Gender Mainstreaming is necessary. Gender must be universally integrated in to all environmental related legislation. Rural women need to be involved in environmental protection negotiations at all levels and in all decisions on environmental matters. Representation by numbers is not enough, we need women represented and we need gender and rural experts involved. Gender Mainstreaming of environmental related research, policy making and implementation needs to be monitored at the local, national, regional and at the international levels. The training of rural women is very important especially with adoption of modern agricultural techniques that are tailored to local conditions and that use natural resources in a sustainable manner, Page | 142 AJLHR 3 (1) 2019 with a view to achieving economic development without degrading the environment. This is because of the natural positioning of women as environmental protectors at the rural level. Policies established for the benefit of rural women should be tested and reassessed by the beneficiaries using them as social learning and not as individuals on whom political authority is exercised. Fighting hunger and malnutrition are some of the measures which should be taken to elevate women to higher incomes and better living conditions in the most vulnerable communities, by the rural women who practice small scale agriculture, should be mostly targeted in Africa. The government must undertake joint efforts to create favourable conditions in agricultural areas, including the reinforcement of road networks for thetransportation of produce from production areas where rural women work, as well as the processing and commercialization of such products. Government priorities should be adjusted so that awareness and promotion ofgender equality are integrated into financial planning. Land titling for rural women should be supported since secure access to land is an important prerequisite for both poverty reduction and sustainable land- use practices. Without title to land people generally and women in particular lack access to related resources such as credit, agricultural extension services, new technologies and water rights. This is because throughout the developing world, women and particularly rural women control land and other productive resources less frequently than men. 5. Conclusion The commitments and road maps for gender equality and women’s participation in environmental protection are making waves at the local, national regional and at the international level. The main challenge is to identify concrete change strategies and suggestions that are in place to enable the realization of rural women participation in environmental issues. Importantly, gender concern and perspectives needs to be urgently integrated into policies and programmes for sustainable development and mechanisms at all levels, and must be strengthened and or established in order to assess the impact of development and environmental policies on women. There is lots of information on the technical aspects of the environment but a general information deficit with regard to women and the environment and related policies. New information materials and strategies need to be developed to provide policy and decision-makers with sufficient information that would enable them to make well informed decisions. Gender relevant aspects would need to be included and targeted at specific groups and tailored for women’s information channels. Page | 143 UMEJIAKU & UZOKA: Violation of Health and Reproductive Rights of Children in Nigeria: A Critique VIOLATION OF HEALTH AND REPRODUCTIVE RIGHTS OF CHILDREN IN NIGERIA: A CRITIQUE* Abstract The paper examines the numerous health and reproductive rights violations meted out on children in Nigeria. It further discusses the meaning and historical origin of health and reproductive rights. It equally reviews the existing legal frameworks and policies at the nationals, regional and international levels which aim at safeguarding the health and reproductive rights of Nigerian children. The paper further identifies and analyses the factors that have militated against the full realization of health and reproductive rights of Nigerian children. The method adopted in this research is purely doctrinal. Which involve content analysis, thematic analysis on copious reviews of related academic literature such as journal article, textbooks and case law. The work revealed that despite international and national laws on health and reproductive rights, that reproductive health right of children is still violated with impunity. The paper concludes by recommending urgent domestication of all international instruments on health and reproductive rights in Nigeria and also calls for a total overhauling of all gender discriminatory laws and cultural practices in Nigeria. Keywords: Health and Reproductive Rights of Children, Nigeria, Violation, Critique 1. Introduction Reproductive health rights of the children particularly the girl child is very germane in recent time, because they are vulnerable and need to be protected. Their wellbeing is very pivotal to development of nations and an imperative condition for achieving Sustainable Development Goals. Reproductive health is all encompassing because it entails a complete physical, mental and social wellbeing of the child. In Nigeria different forms of health and reproductive rights violations are visible and include rape, child marriage, female genital mutilation and medical negligence. Violation of health and reproductive rights of children has serious health implication globally, Africa and Nigeria and include poor mental and physical health injuries, gynecological problem, unintended pregnancy, unsafe abortion HIV/, AID. Hence, enjoyment of health and reproductive rights by children will position, them to be productive in every sphere, so that they will make positive impact in their nations. Therefore the objective of this work is to critically x-ray the legal framework that provides for health and reproductive health of children, analyse the factors that impede them and proffer viable recommendations that will curb violence. 2. Meaning and Historical Development of Health and Reproductive Rights of Children in Nigeria Reproductive health is a state of complete physical, mental and social wellbeing and not merely the absence of reproductive disease or infirmity. It deals with the reproductive processes, functions and systems at all stages of life (WHO Report). Further, it embraces human rights that are already recognized in national and international human rights documents and other consensus statement. They include the right of all persons to be free from coercion, discrimination and violence to: (1) The highest attainable standard and reproductive health care services, (2) seek, receive and impart information related to sexuality, (3) sexuality education, (4) respect for bodily integrity, (5) choose their partner,(6) decide to be sexuality,(7) consensual sexual relations, (8) consensual marriage, (9) decide whether or not, and when to have children,(10) pursue a satisfying and pleasurable sexual life.1 *Nneka Obiamaka UMEJIAKU, Lecturer Faculty of Law Nnamdi Azikiwe University, Email:[email protected]. *Ngozi Chisom UZOKA, LLM, Lecturer Faculty of Law Nnamdi Azikiwe University, Email:[email protected] Page | 144 AJLHR 3 (1) 2019 This implies that, reproductive health is a crucial part of general health and a central feature of human development. It is a reflection of health during childhood, and crucial during adolescence and adulthood, which sets the stage for health beyond reproductive years for both women and men, and affects the health of the next generation,for instance the health of the newborn is largely a function of the mother’s health, nutritional status and of her access to health care. Reproductive health is a universal concern, but is of special importance for children particularly during the reproductive years, in old age general health continues to reflect earlier reproductive life event at each phase having importance implications for future wellbeing. Thus, failure to deal with reproductive health problems at any stage in life sets the scene for late health and development problems because reproductive health is an important component of general health, it is a prerequisite for social, economic and human development. The highest attainable level of health is not only a fundamental human right for all; it is also a social and economic imperative because human energy and creativity are the driving forces of development. Such energy and creativity cannot be generated by sick, tired people, and consequently a healthy and active population becomes a prerequisite of social and economic development.2 3. International Legal Instruments that are Relevant to Women’s Health and Reproductive Rights Universal Declaration of Human Right: which provide for the principle of equality and nondiscrimination on any ground,Article 1provides for the dignity of human person. Article 3,provides for right to life while Article 25,provides for right to a standard of living adequate for the health and well-being and access to medical care (UDHR). Convention on the Elimination of All Forms of Discrimination Against Women: This instrument is focuses on eliminating obstacles that impede reproductive rights of children. It recognizes that poverty deprives children to have access to good food, health and equal opportunity in every sphere. WhileArticle 12 provides that state parties should take appropriate measures to eliminate discrimination against children in the rural areas and to ensure that children have adequate health care facility including access to adequate nutrition, safe water information and counseling services. It further provides that children should enjoy,adequate living condition particularly in relation to housing sanitation electricity, water supply transport and communication (CEDAW). Other legal international legal framework include: the Protocol on the Rights of Children in Africa, African Union Charter on the Right and Welfare of the Child, UN Convention against Torture and other Cruel, Inhuman or degrading Treatment of Punishment (CAT), UN Convention on the Rights of the Child (CRC), 1S. Gruskin, ‘The Conceptual and Practical of Implication of Reproductive and Sexual Right: How Far have we come? As quoted in C. Ngwena & E. Durojaye, Strengthening the Protection of Sexual and Reproductive Rights in the African Region through Human Rights Health Right, (South Africa: Pretoria University Law Press 2014) Asnithicaen.m.wikipedia.orglipedia accessed on 18/4/2018 2Ibid. Page | 145 UMEJIAKU & UZOKA: Violation of Health and Reproductive Rights of Children in Nigeria: A Critique International Covenant on Civil and Political Rights (ICCRR), International Covenant on Political Rights (ICCPR).All these documents extols the health and reproductive rights of children and Nigeria is a signatory to all of them and therefore she is legally bound to ensure the full implementation of their provisions. 4. Domestic Legal Framework Constitution of Federal Republic of Nigeria 1999 (as amended) Although, the Nigerian 1999 Constitution has no specific provision on health and reproductive rights, however, it could be rightly argued that some sections of the Constitution have indirectly made allusion to the rights of children. For instance, section 17 obligates government to direct its policies to ensure adequate medical and health facilities for all persons while section 18 provides that Government should direct it’s policy to give adequate education at all levels,section 33 equally recognises right to life while section 35recognises right to liberty and section 42prohibitsdiscrimination (Constitution FRN 1999).3 Childs Right Act 2003 Every child is entitled to enjoy the best attainable state of physical, mental and spiritual health. Hence Government, parent, guardian, institution, service, organization or body responsible for the care of a child shall endeavor to provide for the child the best attainable state of health, reduce infant and child mortality rate. Further, the government shall ensure the provision of necessary medical assistance and health care services; particularly emphasis is made on development of primary health care. The Government shall also ensure the provision of adequate nutrition and safe drinking water; good hygiene and environmental sanitation. Furthermore, Government should, combat disease and malnutrition within the framework of primary health care through the application of appropriate technology. Additionally, Government should ensure appropriate health care for expectant and nursing mothers; and support, through technical and financial means, the mobilization of national and local community resources in the development of primary health care for children. Every parent, guardian or person having care and custody of a child under the age of two years shall ensure that the child is provided with full immunization. Hence ,every parent, guardian or person having the custody of a child who fails in the duty imposed on him under Subsection (4) of this section commits an offence liable on conviction to a fine not exceeding five thousand naira any subsequent offence, whether in respect of that child or any other child, to imprisonment for a term not exceeding one month.4 5. Factors that Exacerbate Violence on Health and Reproductive Rights of Children in Nigeria Legal Factors 3 Constitution of Federal Republic of Nigeria 1999 (as amended). 4Child’s Right Act, 2003 section 13. Page | 146 AJLHR 3 (1) 2019 Non implementation of Legislation Despite the lofty provisions of international and national laws for the protection of the rights of children, Nigerian children still suffer series of violence because these rights are not enforceable, for instance all the provisions enunciated in Chapter II of Nigeria 1999 Constitution are mere fundamental objectives and directive principle of state policy that are not enforceable. They are the second generational rights. It is pertinent to note that these second generation rights are the economic, social and cultural rights, reminiscent of Russian revolution that emphasized the concept of welfare, in order to counter capitalism experience in the west with the exploitation of people on the increase. The basement of this second generation rights is hinged on the notion that the enjoyment of the socio- economic rights is a pre-requisite for the enjoyment of civil and political rights. These rights make a mandatory positive demand on the governments so as to provide the living conditions without which it will be impossible to realize and enjoy the first generation rights. These second generation rights are contained in Article 22-27 of UDHR and in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria captioned(Fundamental Objectives and Directive Principle of State Policy).One very strong argument is that socio- economic rights provide the material basis for the enjoyment of political and civil rights16.Further, section 6 (6) (c) of the Constitution ousts the jurisdiction of the court on any matter under the said Chapter II, while section (2) (I) of the 1999 Constitution provides that no treaty between the federation have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly. Furthermore, by virtue of these provision and polices made for the protection of health and reproductive right of children are not enforceable until they are enacted into law by an Act of National of Assembly. However, one can argue that there is a paradigm shift by virtue of domestication of African Charter on Human and Peoples Right. Hence, children who cannot bring an action to enforce their reproductive right under the 1999 Constitution can come under the African Charter. Inconsistency in the Age of Nigerian Child The lack of definite age for the girl child is a major drawback on the health and reproductive rights of women inNigeria. Thus, different legislation have different definition of the child, and this lapses jeopardise the health of the child as many immature children are forced into premature marriage, for instance the Convention on the Rights of the Child defines a child as a person below the age of eighteen, while the African Charter on the Right of Welfare of the child. The 1999 Constitution of the Federation Republic of Nigeria, Criminal Code Act, Matrimonial Causes Act et cetera have diverse definition. Hence, this marriage exposes the child to so many health hazards because their Page | 147 UMEJIAKU & UZOKA: Violation of Health and Reproductive Rights of Children in Nigeria: A Critique reproductive systems are not matured to reproduce thus, leading to diseases like vagina fistula diseases.5 Nigerian Strict Laws on Proof of Rape/Relaxed Rape Shield Law The adversarial system of criminal justice makes it practically impossible to secure conviction of rapist. Hence our courts have always demanded that the evidence of rape victim must be corroborated as required by 209 of the Evidence Act. Hence, this lacuna has created a leeway for incessant violation of children rights in Nigeria, the court have often held that corroboration of evidence is a precedent, without considering the psychological trauma of the girl child who is often the victim of rape cases. In Sambo v State6 the appellant was charged with rape of a 10 years old girl. At the trial, the trial court received the evidence of P.W.1 who is the child raped, on oath. The prosecution also called other witnesses but the appellant did not call any evidence. The trial court found the appellant guilty of the offence of attempted rape and sentenced him. Aggrieved by the decision of the trial court, the appellant appealed to the court of Appeal which dismissed the appeal. In Oke v the Republic7, a police witness said that he took the complainant to the house of the accused, who was charged with defilement of a girl and that, there the complainant pointed at the accused saying that he was the one who defiled her. The accused said nothing. The trial judge apparently treated the alleged conduct of the accused as corroboration. On appeal, the Supreme Court said inter alia, after reviewing the authorities, Whilst therefore, we would wish to reserve the question so that it could be more fully argued as to whether silence by the accused may still be treated as an admission after an accusation but without caution or charge having been made when the particular circumstances warrant it, it seems to us that in this case there was anyway quite inadequate evidence which the learned judge found.8 However, there is a paradigm shift with the recent Evidence Act, which provides a better protection for victims of sexual assault particularly with respect to the girl child who was meant to bring corroborative evidence to prove her case. In such cases, she is exposed to trauma by giving past sexual experiences. However, with the recent provision of rape shield law as provided in section 234 of Evidence Act, rape victims are better protected. Hence, the Act provides inter alia that ‘where a person is prosecuted for rape, attempt to commit rape or indecent assault, except with leave, no question in 5C. Arinze-Umobi, (2008), Domestic Violence Against Women in Nigeria: A Legal Anatomy. Folmech Printing & Publishing Co. Ltd. 6 (1993) 6NWLR (Pt. 300) 399 SC, see also Ngwute Mbele v the State (1990) 4NWLR (Pt. 145) 484, Akpan v the State (1967) NWLR at 185, Okoyomon v State (1992) 1NWMLR 292, Jos Native Authority v Allah Na Gana, Francis Okpanfe v the State (1969) 1 All N.L.R. 420, Oke v the Republic (1967) N.M.L.R 69, Mbele v State (1990) 4 NWLR at 500. 7(1967) N.M.L.R. 69, see also Mbele v State (1990) a NWLR 484 at 500-501. 8Ibid. Page | 148 AJLHR 3 (1) 2019 cross examination shall be asked by or on behalf of the defendant about any sexual experience of the complainant with any person other that the defendant.’9 With due respect, this provision is not absolute because it gives the defendant a lee way to ask the prosecutrix questions about her sexual history if he obtains the leave of the court. It is therefore submitted that Nigeria should take a leaf from Canada rape shield law which was given statutory recognition in Canada through the instrumentality of section 146 of the 1983 Criminal Code of Canada.10 However, the efficacy of this statutory provision that restrict questioning the victim of rape about past sexual relationship was short lived, as it was held to be unconstitutional in the case of Seboyer.11 In this case Seboyer, a young man was charged with sexual assault. He launched an appeal for the right to introduce evidence relating to the complaint’s sexual history before his case came to trial. This case went to the Supreme Court of Canada and the majority decision of the Court struck down most of the 1983 rape-shield provisions. It held that a blanket prohibition on the use of evidence of complainants past sexual history was too restrictive and jeopardizes an accused’s right to fair hearing. Thus, section 146 of the Canada’s Code12, which stipulated that such a prohibition was held to be unconstitutional because it violated the Canadian Charter of Rights and Freedoms13 that is the right to fundamental justice and fair trial. This immediately evoked public outrage in Canada, because women’s groups had assumed that the Criminal Code14 would protect the use of irrelevant sexual history evidence.15 They warned that victims would be unlikely to intense questioning about their past sexual history.16 In response, the Federal Government of Canada passed Bill C. 49, which embodied number of guidelines on cross-examination by the defence to re-establish the rape-shield. Thus, new section 276 (1) impose a requirement of written notice for a hearing to determine the admissibility of such evidence. Most importantly, this is not an absolute shield because the new section 276 (2)17 gives the judge discretion to admit such evidence if it (a) is of specific instance of sexual activity (b) is relevant to an issue to be proved at trial; and (c) has significant probative value that is not substantially outweighed by the chance of prejudice to proper administration of justice.18 It is therefore recommended that Nigerian Government should review our rape shield law by making it absolute so that the right of the juvenile would be protected. 9Evidence Act. Cap. 38 LFN 2011. 10Criminal Code of Canada 1983. 11(1991) 2 SC. R. 557. 12Criminal Code Canada. 13Canadian Charter of Rights and Freedom Section 7 and 11 (a). 14Criminal Code of Canada Section 146. 15K Tang ‘Rape Law Reform in Canada the success and Limits of Legislation’ International Journal of Offenders Therapy and comparative Criminology (1993) pp. 266. 16J J Honer, ‘Sexual Assault: Public Debate and Criminal Law Reform’ (Unpublished) Master’s Thesis (1993) University of British Columbia Canada. 17Criminal Code of Canada, 1983. 18Ibid. Page | 149 UMEJIAKU & UZOKA: Violation of Health and Reproductive Rights of Children in Nigeria: A Critique It is therefore submitted that all these provisions that are inimical to the health and reproductive right should be jettisoned, in order to enable Nigerian children enjoy their health and reproductive rights like their counterparts in other jurisdiction. Corporal Punishment Children’s health is grossly violated under the guise of corporal punishment in Nigeria, especially those that are subject to Sharia Law for instance in Zamfara State, in Northern Nigeria a 17 years old girl was given one hundred and eighty lashes for premarital sex even though she was pregnant. Also another pregnant teenager named Barja Ibrahim was also given one hundred and eighty (180) lashes for pre-marital sex. Similarly, Sharia Court in Bauchi State sentenced a fifteen year old girl who claimed she had been raped by her step father to one hundred (100) lashes of the cane for pre-marital sex. This has been the practice in states that have declared themselves sharia states19 Non-Binding Instrument Despite the provisions of legion of legal frameworks on reproductive rights, health and reproductive rights still elude many children because they are not binding or enforceable by our courts. They include: Vienna declaration and Programmes of Action 1993, UN International Conference on Population and Development (ICPD), 1999 Beijing Declaration and Platform for Action, Fourth World Conference on children. Hence, for children in Nigeria to enjoy health and reproductive rights the government should adopt, ratify and domesticate these laws so that these rights will be real to children in Nigeria. Cultural Factors (Harmful Traditional Practices) In Nigeria, apart from lapses in our legislation, obnoxious cultural practices all impede the health and reproductive rights of women. Such as female genital mutilation, child and forced marriage, infertility in children, son preference, wife inheritance et cetera. Female Genital Mutilation World Health Organization (WHO) defined ‘female genital mutilation as all procedures which involve partial or total removal of all external female genitival and or injury to the female genital organs, whether for cultural or any other non-therapeutic reasons’. In most African countries, particularly in Nigeria, it is carried out without anesthesia, it is done at a very early age, where the possibility of getting consent from the female children is nil, and by so doing, violates the fundamental human rights of the victims right to life, bodily integrity, health and sexuality, as many girls die or develop, severe health complication because of these operations. This practice offends the provision of section 19 Sharia Court Law, No7, 2000 Jigawa State Section 3 (1). Page | 150 AJLHR 3 (1) 2019 34 (ii) (a) of the 1999 Constitution which provides that every individual is entitled to respect for the dignity of his person and shall not be subjected to torture or to inhuman or degrading treatment.20 Infertility/ Son Preference Infertility and son reference is a burning issue that negatively affects the health and reproductive rights of children in Nigeria. Also, male-child preference syndrome in Nigeria as embedded in African culture has grossly impeded the reproductive rights of children. Parents prefer training their sons in schools in order to acquire the Golden Fleece in preference to their daughter’s. While their daughters are trafficked in order to generate funds and in the process often exposed to all manner of sexual harassment. Their right to education is thereby jeopardized and grossly violated. It is widely believed especially in the rural areas that the place of the child is in the kitchen and therefore she is denied the right to legal education and married off early in life and therefore by implication she is not only economically disempowered but also exposed to early-marriage associated ailments like, visco vaginal fistula and recto vaginal fistula. 4. Conclusion and Recommendations This study has succeeded in analyzing the legal framework on reproductive health rights of children in Nigeria. It further x-rayed legal and cultural practices that impede the reproductive health rights of children in Nigeria. Consequently, it discovers that despite the elegant provisions of international and domestic legislation for the protection of reproduction health rights of the child that Nigerian children face a legion of violence of their health right which can be traced to gross discrimination embedded in their patriarchal system. This study reveals that violation of health and reproductive rights have many implications. These implications include, gynecological problem as a result of female genital mutilation, unintended pregnancy, clandestine abortion, early-marriage associated ailments like, viscos vaginal fistula and recto vaginal fistula etcetera. Furthermore, the study reveals that most of our laws are very porous and cannot protect children from violence. Hence, for Nigerian children to enjoy their reproductive health right, there should be total over hauling of domestic laws that exacerbate violation of children’s right, review of other laws that have lapses particularly, the 1999 Constitution should be reviewed. It is worthy to note that civil and political rights cannot be disassociated from economic, social and cultural right which is a guarantee for the enjoyment of civil and political rights. The study advocates for eradication of traditions and obnoxious customary practices that inhibit the health and reproductive rights of children in Nigeria so that children will enjoy their health and reproductive rights. The paper therefore proposes the following recommendations as a way forward: The economic, social and cultural rights should be made enforceable by transferring them from chapter II to chapter IV of the 1999 Constitution so that Nigerian children will have access to basic health facilities. 201999 Constitution (as amended). Page | 151 UMEJIAKU & UZOKA: Violation of Health and Reproductive Rights of Children in Nigeria: A Critique Alternatively, section 6 (6), the ouster clause, should be expunged from the constitution and be replaced with right of enforcement clause. Government should make viable reproductive health legislation and ensure that citizens respect the rights of one another. Awareness should be made to children about their rights to health and reproductive rights. Access to education should be readily made available, so that children will no longer become susceptible to domestic violence. Maternity and sexual health services should be provided as intervention to reduce domestic violence. Female genital mutilation should be criminalized as other countries like Egypt have done so that children in Nigeria will be protected, from violence. It is suggested that because children are more easily affected by infertility than men, scientific opinion suggest that addressing infertility could be one way to empower children in Africa and improve their sexual and reproductive health. Government should make polices and laws that address gender inequality in Nigeria. There should be total overhauling of all the laws that are inimical to health and reproductive rights of children. All customary laws that are detrimental to reproductive rights should be eradicated and Nigerian legislators should as a matter of urgency endeavor to domesticate all international instruments on health and reproductive rights of children. The Government should make stiffer penalties to punish spouses their partners. Thus, domestic violence like early marriage, female genital mutilation wife battery and assault should no more be treated as ‘family matter’ but every culprit must brought to book and face the full wrath of the law. Page | 152 AJLHR 3 (1) 2019 THE TECHNIQUE OF PLEA BARGAINING IN CRIMINAL JUSTICE: LESSONS FROM THE UNITED STATES AND RWANDAN GACACA COURTS Abstract This article discusses plea bargaining as practiced in the United States of America where it is mostly used and compares plea bargaining with the procedure of guilty plea and confessions used in Rwanda, especially before the Gacaca courts. Keywords: Plea bargaining, Gacaca, guilty plea, confessions 1. Introduction No single definition for the phrase ‘plea bargaining’ is universally accepted1. It can mean an understanding by the prosecution that if the accused will admit to certain charges they will refrain from putting more serious charges into the indictment or will ask the judge to impose a relatively light sentence2. It can also refer to the prosecution agreement with the defense that if the accused pleads guilty to a lesser offence they will accept the plea, and lastly, it may refer to the prosecution agreeing not to proceed on one or more counts in the indictment against the accused if he will plead guilty to the remainder3. In short, a plea bargain4 is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant. This article discusses plea bargaining in the United States of America where it is mostly used and compares plea bargaining with the procedure of guilty plea and confessions used in Rwanda, especially before the Gacaca courts which, between 2002 and 2012, tried more than a million suspected perpetrators of the genocide against the Tutsi. 2. Plea Bargaining in the United States of America Plea bargaining is a controversial feature of the American justice system5. It is estimated that, nearly ninety percent of all U.S. criminal cases are settled through plea bargaining6. Plea *Evode KAYITANA, LLB (NUR), LLM (Unisa), LLD (NWU/Potch), Lecturer, School of Law, University of Rwanda. 1PM Bekker, ‘Plea Bargaining in the United States of America and South Africa’ 1996 The Comparative and International Law Journal of Southern Africa, 168-222, at 172. 2J Sprack, A Practical Approach to Criminal Procedure, 10th ed, (Oxford University Press 2005), at 289. 3 Ibid. 4 A long discussion has centered on the appropriateness of the term ‘Plea bargaining’. Over the years, considerable objections grew against designating the practice in any way that implied that justice could be purchased at the bargaining table. Consequently, there was a movement away from the use of the term ‘plea bargaining’ and toward more neutral expressions such as ‘plea discussions’, ‘resolution discussions’, ‘plea negotiations’ and ‘plea agreements’. The use of such expressions marked an evolution in the practice itself, since they implicitly acknowledged it to be much more wide-ranging than simple bargaining and to involve the consideration of issues beyond merely that of an accused pleading guilty in exchange for a reduced penalty. For the purposes of this paper, we will mainly use the expression ‘plea bargaining’. It is, however, generally interchangeable with any of the other terms just mentioned. 5L Ronald & JD Carlson, Criminal Justice Procedure, 6th ed (Anderson 1999), at 132. 6JJ Miller, ‘Plea bargaining and its analogues under the new Italian criminal procedure code and in the United States: towards a new understanding of comparative criminal procedure’ 1990 New York University Journal of International Law & Politics 215-251, at 237. Page | 153 KAYITANA: The Technique of Plea Bargaining in Criminal Justice: Lessons from The United States and Rwandan Gacaca Courts bargaining was not used in the USA until the mid-nineteenth century, when urban prosecutors adopted plea bargaining as means of clearing their crowed dockets7. During the twentieth century, plea bargaining became an institutional feature of the American accusatorial system as the Supreme Court, by expanding defendant’s rights and prosecutors burdens, created a complex and expensive trial process8. The use of plea bargaining has therefore grown largely as a product of circumstances, not choice. In the American criminal justice, guilty pleas and plea bargaining may take place at any time during the pre-trial process. In a bargained plea, the parties, especially the prosecutor, are free to play with the charges in order to reach a satisfactory agreement. The concessions granted to a defendant in the process of plea bargaining can take two different forms; charge bargain and sentence bargain. In a sentence bargain a defendant pleads guilty to the charge in exchange for a prosecutor’s recommendation of a lenient sentence or for a specified sentence9. It is therefore a case where either the prosecutor agrees to recommend a particular sentence to the court, or the court itself agrees to impose a particular sentence, in exchange for the guilty plea10. On the other hand, a charge bargain may take three forms: a defendant may plead guilty to a charge or to charges in return for a prosecutor’s dismissal of other charges filed; a defendant may plead guilty to a charge or charges in return for a prosecutor’s promise not to file other charges; or a defendant may plead guilty to a lesser included offence in return for either a prosecutor’s dismissal of the more serious charge or a prosecutor’s promise not to file the more serious charge. In a charge bargain the prosecutor, therefore, moves to reduce the charges so they are either less serious, less numerous, or both.11 Voluntary and Intelligent guilty plea In accepting guilty pleas, U.S. courts are only expected to test whether the defendant entered the plea agreement ‘voluntarily’ and ‘intelligently’12. To meet the standard for voluntariness, the court must determine whether the defendant understands the nature of the charge, the consequences of the plea, the rights waved in choosing to plead, and the permissible inducements the prosecutors may have used13. In determining whether the guilty plea has met the intelligence requirement, the court must inquire whether the defendant understands the elements of the crime to which she is pleading14. 7 Miller, op.cit, at 236. 8 Id, at. 236-237. 9 Berker, op.cit, p. 175. 10 Berker, op.cit, p. 176. 11Berker, op.cit, p. 176. 12 See Brady v. United States, 397 U.S. 742 (1970), id, p. 240. 13P Arenella, ‘Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication’ 1980 Michigan Law Review 463-585, at 512. 14 Ibid, at 514-515. Page | 154 AJLHR 3 (1) 2019 Critics of plea bargaining in the USA The prosecutor has become the most poweful in the American criminal process. It is in this environment of unequality between the defendant and the powefull prosecutor that plea bargains are made. This creates, as Miller15 correctly pointed out, the unfortunate irony that professor Alschuler described in 1979: ‘Our supposedly accusatorial system has become more dependant on proving guilt from the defendant’s own mouth than any European inquisitorial system’16. Unlike the prosecutors in the continental systems, US prosecutors are not bound by mandatory prosecution or by any strict notion of judicial review. In the pre-indictment phase, American judges rarely question the prosecutor’s opinion concerning the reliability of evidence. In the case of plea bargaining, judges rarely use the safeguards implemented to ensure that plea is voluntary and intelligent and rarely question how the plea was obtained or the plea’s substance. Thus, the prosecutor can overcharge the accused early in the plea negotiations and dismiss certain charges later in order to obtain a settlement. In effect, the prosecutor has virtually unlimited discretion in the indictment and plea bargaining processes17. The bargaining process does therefore not provide an equal playing field in the way a trial does, where rules and procedural safeguards protect the defendant’s rights and interests. There is much consensus among scholars that unfettered prosecutorial discretion poses many dangers both to the rights of the defendant who plea bargains and to the American criminal justice system as a whole18. According to some studies, defendants who go to trial are likely to receive sentences twice as long as those who plead guilty19; the defendant therefore, must either wave her constitutional right to go to a trial and accept the plea or risk a heavier sentence at trial. These sentencing differentials, along with the tendency of prosecutors to overcharge or to stack multiple charges in order to induce the defendant to plead to a lesser charge, reveal that defendants often have no real choice20. Commentators criticize the plea bargaining process for infringing on the constitutional rights of the defendant waiving unknowingly her Sixth amendment right to a jury trial which includes the right to have guilt proven beyond a reasonable doubt, the right to have compulsory process for obtaining witnesses and the right to confront hostile witness in open court. Some have analogized the plea bargaining process to torturing a defendant with the specter of a long prison sentence to obtain an admission of guilt. Others have compared the effect of plea negotiation with the contracts concept of duress.21 The pervasive nature of the plea bargaining process in the United States has contributed to a negative perception of the criminal justice system as a whole. The 15 Miller, op.cit, at 241. 16 Id, at 241. 17 Id, at 241. 18 Id, at 243. 19 Id, at 243. 20 Miller, op.cit, at 243. 21 See DG Gilford, ‘Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion’ 1983 University of Illinois Law Review 37-98, at 58. Page | 155 KAYITANA: The Technique of Plea Bargaining in Criminal Justice: Lessons from The United States and Rwandan Gacaca Courts frequency of plea bargaining has perverted and trivialized the process of charging and sentencing, allowing prosecutors to overcharge and permitting defendants to be sentenced for offences that bear no resemblance to the fact of the case22. It has reduced the dignity of the criminal process by transferring judicial authority from the judge to the prosecutor. Plea bargains, it is argued, also frustrates victims of crimes, who see their offenders bargain for a lesser for a conviction of a lesser offense23, and defendants themselves become increasingly cynical towards the system and immune to rehabilitation when they see that money and luck may lead to a lighter sentence24. Arguments in favor of plea bargaining in the USA One of the key arguments in favor of plea bargains is that they help courts and prosecutors manage caseloads. In the United States, defendants have a right to a speedy trial under both the Sixth Amendment to the United States Constitution25 as well as by statute26. If the speedy trial is not held, the case is dismissed and the defendant cannot again be charged with the crime. By plea bargaining, prosecutors can reduce the number of cases set for trial so that cases do not get dismissed. Thus it has been argued that the American criminal justice system would simply cease to function without plea bargaining, and that it forms a framework wherein the accused and his accusers can reach an agreement which settles the case once and for all, in what is hoped will be a spirit of fairness27. Furthermore, in recent years, it is argued, the courts have brought the guilty plea out of the closet. Judges have intervened to assure that the defendant has not been coerced or overborne and that the public interest has not been too casually bargained away by prosecutors. Inquiries are now made into the factual basis for the plea, the extent to which the defendant understands his legal position and his defenses, and the adequacy of the advice he has received from his counsel28. It should be remembered also that the use of plea bargaining in the United States of America has grown largely as a product of circumstances, not choice. Judicial participation in plea negotiations The law on whether judges are allowed to participate in the negotiation process varies. In the federal system of the USA, judges are expressly denied participation in plea bargaining by rule29. If a judge violates this rule and does participate, the plea may be deemed involuntary30. Although 22 Miller, op.cit, at 244). 23 Gilford, at. 72-73. 24Gilford, at. 73. 25 See http://en.wikipedia.org/wiki/Plea_bargaining, consulted on 5th September, 2018. 26 Ibid. 27 See http://en.wikipedia.org/wiki/Plea_bargaining, consulted on 5th September, 2018. 28A S Goldstein, ‘Reflections on two models: inquisitorial themes in American criminal procedure’ (1974), p. 1023. 29 Fed R Crim, p. 11(e) (1), cited by Berker, op.cit, p. 182. 30 See for example, US ex rel. Elksnis v Gilligan 256 F Supp 244 (SDNY 1966) cited by Bekker, op.cit, p. 182. Page | 156 AJLHR 3 (1) 2019 judicial participation is not unconstitutional31, federal courts strongly condemn the practice32. Because the federal prohibition on judicial participation in plea negotiations is not constitutional, states are free to permit participation33. Although some states agree with the federal approach prohibiting participation34, many states allow judges to participate in plea discussions35.Aside from the variation in state and federal laws, generalizing about the extent of judicial participation in plea negotiations is difficult because judges’ policies vary widely for reasons not necessarily related to the law36. Evidence exist that judges do participate in plea negotiations37. In states where the law sanctions judicial participation, judges may negotiate forthrightly38. However, even though the law in these states allows judges to participate, participation is not required. In contrast, in jurisdictions forbidding participation, evidence indicates that judges nevertheless do participate informally through ‘hints indirection and cajolery’39. Some judges refuse to participate altogether40. In fact, generalizing about the practices of particular judge is sometimes difficult. Trial judges’ involvement in plea discussions varies depending on ‘the charge, the defense counsel, the prosecutor, the media interests, the mood of the judge and the time of the moon’41. No constitutional right to plea bargaining available to a defendant Although plea bargaining has been held constitutionally valid42, there is in fact, no constitutional right that such procedure be made available to a defendant43. Because the offer of a plea bargain is within the discretion of the prosecutor, courts may not compel him to make such an offer, nor 31 The Supreme of the United States sustained the constitutionality of plea bargaining for the first time in 1970 in Brady v United States n 33 above at 752-53 (1970), cited by Bekker PM, id, p. 177. But while approving the practice in this case, the court cautioned against ‘the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty (at 751 note 8). 32 See for example US v Adams 634 F2d 830 (5th Cir 1981) (judges in plea negotiations is so dangerous that Appellate court may raise issue sua sponte) cited by Bekker PM, op.cit, p. 182. 33 Blackmon v. Wainwrigbt 608 F 2d 183 (5th Cir 1979), ibid. 34 State v. Haner, 631 P 2d 381 385 (Wash 1982), ibid. 35 Medline v. State 280 SE 2d 648 (SC 1981), ibid. 36 Bekker, id, p. 182. 37 Commonwealth v Evans 252 A 2d 689 (pa 1969) (Bell CJ dissenting) (trial judge’s participation a frequent practice in Pennsylvania for countless years, should not be prohibited). Note ‘Judicial discretion to reject negotiated pleas’, 63 Geo IJ 241 255 note 93 (‘Empirical evidence indicates that judges do take part in plea negotiations in many jurisdictions, at least in state proceedings’). Cited by Bekker, ibid. 38 For a description of ‘forthright’ judicial bargaining, see Alschuler n 5 at 1087-91, ibid. 39 See Alschuler at 1092-9 for a vivid description of judicial negotiation via ‘hints, indirection, and cajorely’. If a settlement is concluded or not, a formal record thereof is drawn up but the judge involved will not preside in the later possible trial. 40 See Alschuler at 1061-76 where he describes the practice of Houston, Texas where judges refuse to participate. Ibid. 41 Klonooski, Mtchell & Gallagher ‘Plea bargaining in Oregon: An exploratory study (1971) 50 Or L Rev114, 129. Id, p. 183. 42 See further Corbitt v New Jersey 439 US 212 219 (1978) (offering by state of benefits in return for guilty plea is permissible), Chaffin v Stynchcombe 412 US 17, 31 note 18 (1973) (legitimacy of practice of plea bargaining not doubted). Id, p. 177. 43 Corbitt v New Jersey at 223 (states free to abolish plea bargaining); De Russe v state 579 SW 2d 224, 236 (Tex Crim App 1979) (defendants have no right to demand state enter into plea bargain). Cited by Bekker, op.cit, p. 177. Page | 157 KAYITANA: The Technique of Plea Bargaining in Criminal Justice: Lessons from The United States and Rwandan Gacaca Courts may a defendant demand that the state enter into a plea bargain44. States may even choose to prohibit plea bargaining45. Judge is not bound by a plea agreement Regardless of whether the judge participates in the plea negotiations, once the parties have reached a proposed plea agreement, they tender the agreement to the court for approval. Both the defendant and the prosecutor must have approved the agreement, without their approval the plea bargain may not be presented to the court46. When the plea agreement is presented, the court must approve it. The exact question before the court varies depending on the type of bargain. If the proposed bargain is a charge bargain, and if the charges are already on file, the plea bargain comes before the judge for approval on two distinct issues before sentencing. The first issue is dismissal or amendment of the charges. Leave of court is required for the prosecutor to dismiss or amend charges in the federal system47 and in most states48.The second issue is entrance of the defendant’s guilty plea. The judge may reject the plea bargain by refusing to accept the guilt plea in the federal courts49 and in many state courts50. If the defendant is pleading guilty as part of a charge bargain in which the charges have not been filed, ie wherein the prosecutor agrees to forego prosecution on available charges in exchange for a guilty plea, the court may still reject the plea bargain by refusing to accept the plea51. If the defendant is pleading guilty as part of pure sentence bargain, the judge can sometimes reject it by refusing to impose the bargained sentence52. There are two types of sentence bargain. The first type contemplates that the defendant pleads guilty in exchange for the prosecutor recommending a particular sentence. This bargain is fulfilled when the prosecutor makes the recommendation, regardless of the court’s response. The rule specifically requires the defendant to understand that the prosecutor’s recommendation is not binding on the court. If the court refuses the 44 Quinones v state 592 SW 2d 933, 941 (Tex Crim App 1980) (offer of plea negotiations within discretion of prosecutor); De Russe v state above (Tex Crim App 1979) (defendants have no right to demand state enter into plea bargain). Ibid. 45 Corbitt v New Jersey at 223 (states free to abolish plea bargaining). Ibid. 46 State v Carlson 555 p 2d 269 (Alaska 1976) (where prosecutor refuses to bargain to reduced charges charge, court cannot accept plea to reduced charge); Genesee Country Prosecutor v Genesee Circuit Judge 215 NW 2d 145 (Mich 1974) (court and defendant cannot conclude plea bargain without prosecutor’s endorsement). 47 See Fed R Crim P 48(a) (‘United States attorney may by leave of court file a dismissal of an indictment, information or complaint….) 48 See eg State v LeMatty 263 NW 2d 559, 561 (lowa CT App 1977) (statute requires court approval where prosecutor seeks dismissal of criminal case). 49 Us v Aguilera 654 F 2d 352 (5th Cir 1981) (defendant not entitled to rely on plea agreement until trial judge approve it). 50 See eg Stroud v State at 995 (‘the defendant has no absolute right to have guilt plea accepted and trial court may reject a plea in the exercise of its sound discretion’). 51 Bekker, op.cit, p. 194. 52 See FR Crim p 11 (e) (1) (B). Page | 158 AJLHR 3 (1) 2019 recommended sentence, the defendant is not entitled to withdraw his plea53. The second type of sentence bargain authorize in the federal system is described FR Crim P 11 (e) (1) (c). Under this provision, the defendant pleads guilt in exchange for the prosecutor’s agreement that a particular sentence is the appropriate disposition. If the court declines to impose that particular sentence, the defendant may withdraw his plea. Thus with this latter type of sentence bargain, the judge might accept the guilt plea but then frustrate the bargain by failing to impose the particular sentence, thereby giving the defendant the right to withdraw his plea. Although this is theoretically possible, it seems that unlikely that a judge would accept a plea knowing that the plea agreement would be voided when the judge refused to impose the particular sentence54. Therefore, regardless of whether trial judges participate in the plea negations, they definitely participate in the plea bargain by deciding these issues. Plea without factual basis The original purpose for requiring court approval was to protect the defendant from prejudice55. Clearly, trial courts have a broad discretion to withhold their approval of plea bargains for this purpose. Most cases on rejection of pleas deal with situations where the defendant must be protected, in spite of his desire to plead guilt, because ‘a doubt exists about the defendant’s actual guilt’56. The court is in fact prohibited from entering judgment on a plea which does not have a factual basis57. These manifestations of judicial independence allowed the judges to maintain the theory that prosecutors lacked the power to bind the court. The broken agreement Bargain broken by the defendant Once the plea of guilty is accepted by the court, the agreement is binding and constitutionally enforceable58. If the defendant fails to perform, the prosecutor need also not perform59. Bargain broken by the state When defendants promise to plead guilty in return for government concessions and then do so, they are legally entitled to the concessions60. Plea bargains are, however, not enforced according to standard contract principles of offer and acceptance. As a consequence, defendant’s ability to rely on government promises is much lower than in comparable private settings. The reasons are that the bargain is ordinarily not binding until the accused actually pleads guilty, and secondly, prosecutors may not bind the judges. If the prosecutor breaches the its promise with respect to an executed plea agreement, the defendant pleaded guilty on a false promise with respect to an executed plea agreement, the defendant pleaded guilty on false premise, and hence his conviction 53 FR Crim P 11(e)(2). 54 Bekker, op.cit, p. 195. 55 Renaldi v US 434 US 22 29. 56 US v Bean 564 F 2d 700 7003 (5th Cir 1977). 57 FR Crim p. 11(f). 58 Marby v Johnson 467 US 504 507-08. 59 See Bekker PM, op.cit, p. 206. 60 Santobello v New York at 257. Page | 159 KAYITANA: The Technique of Plea Bargaining in Criminal Justice: Lessons from The United States and Rwandan Gacaca Courts cannot stand61. And when a defendant pleads guilt in reliance on the prosecutor’s promise, the prosecutor must fulfill that promise, because if he breaks it, the defendant is not bound to the agreement, but rather is entitled to relief in the form of either specific performance or withdrawal his guilty plea62. Specific performance would be resenting before another judge63. Victim participation in plea bargaining There is a trend today in the criminal law to focus on the rights of victims. In Morris v Slappy64 it was stated that ‘the court wholly failed to take into account the interests of the victim(I) in the administration of criminal justice courts may not ignore the concerns of victims’. Many states now provide compensation for victims65, and victim assistance programmes have sprung up around the United States66. It has also been suggested that the victims’ lot should be improved by granting them a right to participate in the prosecution of the defendant and a victim’s right of participation has been endorsed in a proposed constitutional amendment67.The victim has two interests in the plea bargain decision. One interest is financial. The victim is interested in restitution being imposed as part of the sentence68. Thus in a charge bargain, the victim wants to ensure that the defendant pleads to a charge sufficiently serious to allow restitution69 and in a sentence bargain, the victim wants to advocate an award of restitution70. The victim’s second interest is retribution or revenge71. The victim feels he or she has been violated and that the criminal’s punishment should be severe72. Therefore in a charge bargain, the victim would want the defendant to plead guilty to a serious charge, and in a sentence bargain, the victims wants a significant sentence imposed. The victim could protect these interests by participation in the plea bargain73. It has been proposed therefore that the prosecutor consults with the victim before a plea proposal is made to a defendant74. 61 Marby v Johnson 467 US 504 509 (1984) 62 Santobello v New York at 262-63; State v Hall 32 Wash App 108 109-10 645 P 2d 1143 1145 (1982). 63 See Bekker, op.cit, p. 206. 64 461 US 1 14 (1982). 65 Welling at 303, cited by Bekker PM, op.cit, p. 207. 66 Welling at 303; Starkwather at 853, ibid. 67 Welling at 3003, idem, p. 208. 68 See Welling at 307; Stakweather at 860 et seq, ibid. 69 For example, a defendant initially charged with felony theft might enter a plea bargain to plead to misdemeanor theft. In this situation, the victim would want to ensure that the charge to which the defendant pleads guilty accurately reflects the amount of restitution indicated: Weilling at 307, ibid. 70 It is stated that failure to obtain restitution was the second most commonly cited reasons for victim dissatisfaction with case outcomes: Weilling at 307, ibid. 71 See Gilford, Meaningful reform of plea bargaining: The control of prosecutorial discretion’, 1983 UIII L Rev 37, 91 and note 282; Gittner, ‘Expanding the role of the victim in a criminal action’ (1984) 11 Pepperdine L Rev 117 140-42, cited by Bekker, op.cit, p. 208. 72 Welling at 307, id, p. 209. 73Welling at 307, cited by Bekker, op.cit, p. 209. 74 Ibid. Page | 160 AJLHR 3 (1) 2019 3. Plea bargaining in the Rwandan criminal justice A distinction should be made between guilty pleas made before ordinary courts and guilty pleas made in genocide cases. Guilty pleas made in ordinary cases No legal provision in Rwanda refers to the term ‘plea bargaining’. However, other incentives do exist in Rwandan criminal law whose purpose is inter alia to speed up trials and reduce public expenses in conducting investigations. For example, a confession or plea of guilty can constitute a mitigating circumstance, although judges are under no legal obligation to consider such a plea75. It is therefore clear that plea bargaining as such does not exist under Rwandan law because the prosecutor can’t neither offer a reduced sentence nor drop some charges from the suspect’s file. The prosecutor’s role under this procedure is to sensitize, to encourage the accused to plead guilty and confess and assess whether the guilty plea is complete and the confession is sincere, but not to bargain as understood in Anglo-American legal systems. Plea bargaining in Gacaca After the 1994 genocide, the Rwandan Government found itself with the responsibility of trying more than 1.500. 000 cases involving persons suspected of having participated in the genocide76. It is in this context that Organic Law n°08/96 of August 30th, 1996 on the organisation of legal proceedings in cases of infringements that constitute a crime against humanity was elaborated and adopted. The trials began in December 1996 just after the adoption of the text. However, it became quickly evident that the classic justice could not meet expectations because after approximately a five years period only 6000 files out of 120000 detainees were tried. At this working speed, it would take more than a century (+ 100 years) to try these detainees77. It therefore became clear that it was necessary to modify the strategy and to look for another solution to the problem. His Excellency, the President of the Republic, called a reflection and consultation meeting that has resulted under the inspiration of the traditional context of conflicts resolution in the establishment of the Gacaca Courts. This is a system of participative justice whereby the population is given the chance to speak out against the committed atrocities, to judge and to punish the authors. This kind of justice was carried out in the context of the Gacaca courts that was composed of men and women of integrity elected by their neighbours. 75 Article 82 of the Penal code. However, it is now clear that with the new Penal code which is still being worked on, a guilty plea will constitute a mitigating circumstance and the judge shall consider it (See the section entitled the ‘Mitigating circumstances’. 76 UNHCR, Rwanda: Jury still out on effectiveness of 'Gacaca' courts, at http://www.unhcr.org/refworld/topic,4565c225e,46545c602,4a433cf217,0,IRIN,,.html, consulted on January 16, 2018. 77 National Service of Gacaca Jurisdictions, at http://www.inkiko-gacaca.gov.rw/En/Generaties.htm, consulted on December 15, 2018. Page | 161 KAYITANA: The Technique of Plea Bargaining in Criminal Justice: Lessons from The United States and Rwandan Gacaca Courts One of the innovative elements of the gacaca law was the confession procedure. Prisoners who confessed and asked for forgiveness could receive dramatic reductions in penalties. Reductions were greatest for those who confessed before the proceedings against them started, either while in prison or at the very beginning of the gacaca proceedings, when they were explicitly asked if they wanted to confess. Reductions were smaller for those who confess only during the gacaca procedure, while penalties were unchanged for those who did not confess at all but were found guilty. Moreover, up to half of the sentence of all convicted could be transmuted into community service (travaux d’intérêt général). To benefit from the community service provisions, the accused had to ask for forgiveness publicly78. It is estimated that Gacaca courts have tried more than 1.500.000 cases79. Research has revealed that the main cause for the success of the confession and guilty plea procedure was the incentive of reduced sentences80. It can thus be concluded that, despite its possible shortcomings, the Gacaca process has been a success in expediting trials. This was in the interests of both the state (financially), the accused persons (right to a speedy trial) and the victims (justice). It must be noted, however, that the procedure of confession and guilty plea followed before the Gacaca courts differs to some extent with the conventional plea bargaining technique as used in the United States and other countries. The main difference is that in Gacaca proceedings, the prosecutor and courts had no discretion to accept or refuse the accused’s initiative to plead guilty in exchange for a reduced sentence. Also, the minimum sentences that could be imposed by the courts were determined by the law, thereby limiting the possibility of corruption and arbitrariness. 4. Conclusion Whatever criticism can be raised against the technique of plea bargaining, its advantages are far greater. Without resort to a similar technique (confession and plea of guilty in exchange for reduced sentences) in genocide cases in Rwanda, trials would have taken more than one hundred years to complete. There are differences, however, between plea bargaining and the guilty plea and confession procedure applied in genocide trials. The main difference is that in Gacaca proceedings the prosecutor could offer neither to drop certain charges nor a more lenient sentence other than the one which is provided for by the law. This was no more than a procedure through which guilty pleas could be done. By setting the conditions that a plea must satisfy in order to be 78 See article 14, Organic Law nº 10/2007 of 01/03/2007 modifying and complementing Organic Law n°16/2004 of 19/6/2004 establishing the organization, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as modified and complemented to date. 79 See at http://www.rpfinkotanyi.org/en/index.php/news/english/332-gacaca-courts-to-close-shop-in-july-2011-05- 07-domitille-mukantaganzwa?lang=, consulted on January 1, 2018. 80P Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda, Cambridge University Press (2010), p. 300. Page | 162 AJLHR 3 (1) 2019 accepted, and in setting the minimum sentences which the accused can expect from his guilty plea, the legislator did not allowed bargains, as understood in the US. It is recommended that plea bargaining be introduced in our courts, not only as a means of clearing the crowed dockets in our prosecution system , but also for the purposes of enabling the whole criminal system to resolve the still contentious issue of accused’ right to a speedy trial. In addition, plea bargaining would allow prosecutors to negotiate for something more than the defendant’s guilty plea, such as a testimony in another criminal prosecution. A well negotiated plea bargain would allow for the accusation of others beyond the accused. However, charge bargains, I submit, are most likely to attract harsh criticism. I find it more appropriate to only limit plea bargains to sentence bargaining. Dropping charges from the file or not filing some charges in the indictment would offend the victims of those crimes who would never see their aggressors being tried, blamed and sentenced for committing those crimes, even to lower sentences. Page | 163 OBIORA & AKPUNONU: Separation of Powers: An Imperative for Authentic Democracy in Nigeria SEPARATION OF POWERS: AN IMPERATIVE FOR AUTHENTIC DEMOCRACY IN NIGERIA* Abstract Separation of powers is a model of the governor of a state. Under this model, a state government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. This is the constitutional principle that limits the powers vested on any person or institution. It divides governmental authority into three branches, legislative (Parliament or Senate) executive (President or Prime Minister and the Cabinet) and judiciary (Chief Justice and others). Democracy is a descriptive term that is synonymous with majority rule. It is associated with democratic consolidation and good governance. The model of democracy that is popular in this age of globalization is liberal democracy. However in Nigeria, effort to attain the high level of democratic consolidation and good governance have not been possible. What is starring-us at the face here on Nigeria is where the Executive is going arbitrary without references to the principles of the ‘Rule of Law’ and consequently heading to rule of Terrorism. Separation of powers is therefore imperative for authentic democracy in Nigeria. The research methods to be applied will include; doctrinal, expository, analytical, etc. it is therefore recommended that the legislature should assume their responsibility in over sighting the activities of the Executive even if it means impeachment as recommended by the Constitution which is the grand norm. Keywords: Separation of Powers, Authentic Democracy, Nigeria, Checks and Balances 1. Introduction The basic definition of democracy in its purest form comes from the Greek language. The term means ‘rule by the people’ compared to dictatorship, oligarchies, monarchies and aristocracies, in which the people have little or no say in who is elected and how the government is run. However, democracy is often said to be the most challenging form of government because those representing citizens determines the direction of the country1 The Greeks and Romans established the precursors to today’s modern democracy. The three main branches of authentic democracy were the Assembly of the Demos, the council of 500 and the people’s court. Assembly and the council were responsible for *Anne Amuche OBIORA, PhD, Head Department of Public and Private Law, Faculty of Law, Chukwuemeka Odumegwu Ojukwu (Formerly Anambra State) University. Phone Number: 08035452310, E-mail:[email protected] *Ann Chinwe AKPUNONU, PhD, Lecturer, Faculty of Law Chukwuemeka Odumegwu Ojukwu (Formerly Anambra State) University, Igbariam, Anambra State. 1K.A Zimmermann, What is Democracy? Definition, Types and History, Live Science Contribution https://www.livescience.com/2019-democracyhtml. accessed 24/03/2019, 7:17pm. Page | 164 AJLHR 3 (1) 2019 legislation along with ad hoc boards of ‘lawmakers’2 Democracy also has roots in Magna Carta, England Great charter of 1215. This was the first document to challenge the authority of the King, subjecting him to the rule of the law and protecting his people from feudal abuse3. Democracy as we know it today was not truly defined until the age of Enlightenment on the 17th and 18th centuries. During this period United States of America had their declaration of independence followed by their constitution which was highly influenced by the England Magna Carta. The term came up to mean a government structured with a separation of powers. It provided basic civil rights, religious freedom and separation of church and state4 The doctrine of Separation of Powers can be traced to John Locks (1632-1704)5 and Montesquieu (16- 1755)6 . Separation of Powers has made an in- road into the constitution of the modern nations in the world including Nigeria7. The doctrine has been justified on the ground that modern government should be a co-operative, coordinated effort and not a thug of war between the principal origin of government. Some separation of executive, legislature and judicial function is necessary and desirable if good government and individual liberty are to be secured, but certainly not a rigid and absolute separation8 Authentic means genuine and of an undisputed origin9 . It can also mean accurate in representation of the facts, trustworthy10 and reliable11. Having seen the meaning of authentic from different versions of dictionary and each emphasizing and stressing genuineness, trustworthy, reliable etc, how authentic is our democracy in Nigeria? Rather what obtains here is a flagrant disregard of the principles of separation of powers in the coinage of our own practice of democracy. The Executives do what they want, step on anybody toes and gets away with it because he feels is above the law and immune by the constitution. Imperative means of vital importance, essential and giving an authoritative command12. It is distinguished from advisory or discretionary and designates that model of the veto which expresses command, entreaty, or exhortation. It should not be evaded or avoided but rather is 2 Ibid 3 Ibid 4 Ibid. 5 Locke, John, second Treatise on civil government 6 Montesquieu, L’Esprint des lascraus) Boo xi, chapter Vi (2nd ed) Vol. -1, 219 7 N.A. Inegbedion, ‘Scope of Legislative Oversight under the 1999 Constitution’, NIALS Journal of Constitution Law (Maiden Edition) p. 44. 8 Constitution. Drafting Committee Report (C.D.C) Nigeria (1976) Vol. 1. Page 32 9 Concise Oxford Dictionary (Tenth Edition) Oxford University Press, Oxford New York 1999) p. 89. 10Collins English Dictionary (Tenth Edition) Harpercollins Publishers, Glasgrow 2009) p. 109. 11Chambers Pocket Dictionary (Edited) Chambers Harpers Publishers Ltd. Edinburg 1997). P. 50. 12Concise Oxford Dictionary (Tenth Edition) Oxford University Press, New York, 1999). P. 711. Page | 165 OBIORA & AKPUNONU: Separation of Powers: An Imperative for Authentic Democracy in Nigeria obligatory13. It also mean an urgent need14 important and needing immediate attention15 From the meaning of imperative as seen from different dictionaries there is no genuine and authentic democracy without the complete and full implementation of the doctrine of separation of powers. It can be recalled that the essence of separation of power is eschew tyranny and the rule of terror. Consequently, it can be deduced that ‘No separation of powers, No Democracy’ but is that the experience in Nigeria today, where the Chief Justice of the Federation is removed in office without due process? just for Executive to perpetrates his plans to be re-elected. 2. Separation of Powers The term separation of powers refers to a political principle that all of the duties of a national government should not be given to only one person or unit of government16 . This is the reason for having three branches of the government in Nigeria namely: the executive, judicial; and legislative branches. Charles- Laws de Secondat, Baron de la Brede et de Montesquieu was the first to write about the concept of a separation of power in government during the eighteenth century. The function of the concept of separation is that a country’s constitution or ruling document grants specific powers to different areas of government. These areas are bound by these powers and cannot overstep them. An important feature of the separation of powers is a system of checks and balances. This means that one unit of the government in some way oversees the other and places a limit on its power. Under the separation of power, each branch is independent, has separate function and may not usurp the functions of the other branches. But then the branches are interrelated. They cooperate with one another and also prevent one another from attempting to assume too much power. This relationship is described as one of the checks and balances, where the functions of one branch serve to control and modify the power of another17. Under separation of power, each branch of government has a specific function. The legislative branch, the National Assembly makes the law. The executive branch- the president implements the law. The judicial i.e. the court system interprets the laws and decides legal controversies. In the United States of America for example where separation is practiced, the system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the laws. By the implementation of check and balances, each branch acts as a restraint 13The New International Webster’s Comprehensive Dictionary of the English language, Encyclopedic Edition, Typhon International Corp. floriida 2004) p. 634. 14 Harper’s French-English Shorter Dictionary, Harrap? Book Limited Edinburg 1993) p. 427 15 Oxford Advanced Learners Dictionary (Low Priced Edition), Oxford University Press, Berlin 1994) p. 622 16 Separationofpowersdefinitiondictionary.reference.com/browsedseparartion-of-power. Accessed 20th March, 2019. By 7.pm. 17Separationofpowerundertheunitedstatesconstitution.law.umke.ed/faculty/project/ferials/cunlaw/separation ofpowerhtm(Accessed 20th March, 2019. By 4pm Page | 166 AJLHR 3 (1) 2019 on the powers of the other two. The president can either sign the legislation of the congress, making it law or veto it. The congress, through the senate, has power to advice and consent on presidential appointments and can therefore reject an appointee. The courts given the sole power to interpret the constitution and the laws can uphold or overturn acts of the legislature or rule on actions by the president. Most judges are appointed, and therefore congress and the president can affect the judiciary. Thus in no time does all authority rest with a single branch of government. Rather power is measured, appointed, and restrained among the three government branches. The doctrine of separation of powers is related to the theory of natural law. It has played a progressive historical role in the struggle of the bourgeoisies against absolutism and the arbitrary rule of the King. The doctrine was used in a number of countries to justify a compromise between the bourgeoisie, which had won control over the legislature and judiciary, and the feudal-monarchial circles that had restrained executive power. According to F. Engels, the theory of the separation of power is ‘nothing but the profane industrial division of labour applied for purposes of simplification and control to the mechanism of the state18 with the establishment of the capitalist system. The principle of the separation of powers was proclaimed one of the fundamental principles of bourgeois constitutionalism. This was first reflected in the constitutional documents of the French Revolution. However Marxist-Leninist theory rejects the theory of the separation of powers. This is because it ignores the class nature of society which they advocate for. The existence in a socialist state of state bodies with different jurisdiction means that certain division of function in exercising state power is essential while maintaining the unity of state power19. Separation of power is the principle or system of vesting in separate branches the executive, legislative, and judicial powers of a government. It is a principle that the individual branches of government (executive, legislative, judicial) have separate and unique powers that others cannot impinge upon. Separation of powers is fundamental principle of the United States Government. Here powers and responsibilities are divided among the legislative branch, executive branch, and judicial branch. The officials of each are selected by different procedure and serve different terms of office, each branch may choose to block action of the other branch, through the system of checks and balances. The framers of the constitution designed this system to ensure that no one branch would accumulate too much power and that issue of public policy and welfare would be given comprehensive consideration before any action was taken20. It is argued that only by separating the functions of executive from that of law-making, by insisting that every executive action must in so far as it affects an individual, have the authority of some law, and by prescribing a different procedure for law-making can the arbitrariness of executive action be effectively checked. The idea of procedure has an important controlling role. Where a procedure, 18K.Mars and F.Engels, soch; (2nd ed), vol.5 1979) p. 203 19 Istoriia Politicheckih uchenii, 2nd ed. Moscow, 1960 pages 235-36,274, 282. 20The American Heritage at New Dictionary of Cultural Literacy. (Third Edition) published by Houghton Mifflin Company Hougton 200 ( p. 400. Page | 167 OBIORA & AKPUNONU: Separation of Powers: An Imperative for Authentic Democracy in Nigeria separate from that involved in execution is laid down for law-making and it must be compiled with in order for the government to secure the necessary authority for measures it contemplates taking, regularity in the conduct of affairs is ensured. It is usual in most countries to subject proposals for legislation to discussion and deliberation in a legislative assembly. The separation of functions, between execution and legislation requiring separate procedures is thus of utmost importance. Even if government is referred to as a single indivisible structure, the separation in procedure will necessarily operate as a limitation21upon the incidence of arbitrariness. The conduct of affairs in accordance with predetermined rules is perhaps the best guarantee of regularity, and restraint has little or no value in constitutionalizing government unless it is regularized. Regularity enables the individual to know in advance how we stand with government, and how for the latter can go in interfering with the course of his live activities22. It can be argued that a strict separation of powers holds that the legislative, executive and judicial arms should be separate of each other in respect of both their functions and their personnel. Both senses of governmental separation are however problematic. In a functional sense therefore such a theory presupposes that all governmental actions can be neatly placed in either the legislature, executive or judicial category. And that each branch of government may not exercise power which falls outside those corresponding with its own function. In other words, the pure theory of separation of powers makes no allowance for governmental activities which are not easily categorized, or over which there is debate about which of the three branches is most23 apt to exercise them institutionally, the ‘pure’ theory demands a complete separation of each of the three branches. No person or group of persons may be a member of more than one branch. For example parliamentary system of the Westminster model in which the executive branch forms a part of the legislature would therefore fall short of this key requirement of the pure theory of separation24 The pure theory version of separation of powers also seems to dismiss the notion that the three branches might actively check the actions of each other. This appears to suggest that the very fact of separation is sufficient to establish and maintain liberty25. Therefore any infringe the separation of powers. Consequently, for instance judicial review of primary legislation violates the separation of powers, for the reason that it involves the judiciary disturbing the functional autonomy of the legislative branch. The two constitutional states which are commonly held up as archetypes of separate government in the institutional sense- the United States and France can both be seen to accommodate forms of legislative review26 perhaps the most important difficulty in the pure form of separation of powers is that it does not appear to have been adopted, completely unmodified by any 21 B. Nwabueze, Constitutional Democracy in Africa, Ibadan: Spectrum Books Limited. 2003 p. 242. 22 Ibid. 23R. Masterman, The Separation of Powers in the Contemporary, Constitution, Judicial Competence and Independence in the United Kingdom, Cambridge: University Press: 2011 p. 11. 24.Ibid. 25 Ibid. 26 Ibid. Page | 168 AJLHR 3 (1) 2019 working common system. According to Cheryl Sauders ‘Complete separation is impossible’27. But looking beyond the rigidity of the pure theory of separation, it is clear that various systems of government embrace – to a greater or lesser degree, both the division of governmental power among three institutionally distinct branches of state and the ability of those branches to exercise a degree of coercive power over each other. Separation of power is as commonly invoked as a mechanism for restraining and limiting governmental power as it is relied upon as a mechanism for dividing and allocating such power. Nevertheless, the observation of Marshall is that this is particularly the case in Anglo-American conception of the doctrine. It holds that, the branches of government are separated precisely so that they may exercise such checks28. Using United States for a example. The legislative power of congress is subject to both presidential veto29 and to judicial review by the Supreme Court30. Secondly, the exercise of the executive power of the president may require congressional endorsement. Further, judgments of the Supreme Court may be reversed by a process of constitutional amendment under Article v of the constitution31. Argued from this perspective therefore, separation of powers emphasizes that the powers of the three branches of government should be limited and that each branch should be allowed a role in holding the others to account32. The essence of the act is to avoid the concentration of power in a particular branch. Separation of powers can better be understood as a mechanism for restraining governmental powers rather than achieving clear institutional and functional separation. Barendt opines that it is for this reason that separation of power in some form is arguably the essence of constitutionalism33. The continuing relevance of separation of powers can perhaps therefore be found in the aspiration which lies behind the doctrine as a constitutional and/or political theory, rather than a template of institutional design34. The main reason why John Locke advocated for separation of powers is that according to him that parliament is not permanently in session. Secondly, legislators might exempt themselves from obedience to their own law35. Alexander White, a member of the first Congress in United States of 27 Ibid. 28 G.Marshall, Constitutional Theory, Oxford: Clarendon Press, 1971. P. 99.. 29 Ibid. 30 Example the Fourteenth Amendment to the U.S Constitution which Extended Provision for the due process and Equal Protection of Laws to all Citizens of the United states Over Ruled the Supreme Courts Infamous Decision in Dred Scolt v. Sandford 60 US 393 (1857). 31 Article I, Section 7, United States of America Constitution 32In the United States, the Supreme Court may review the constitutionality of primary legislation. Marbruy v.Madison 5 US 137 (1803). 33 E. Barendt, ‘Is there a United Kingdom Constitution? (1997) 17 Oxford Journal of Legall Studies 138, 141 34 R. Masterman, The Separation of Power in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom Conference: University Press 2011 p. 12. 35O.N. Ogbu, .The Doctrine of Separation of Powers and the Nigerian Nascent Democracy: Theory and Practice in Focus in the Constitution’, A Journal of Constitutional Development. Vol. 1. No. 3 March 2001. Page | 169 OBIORA & AKPUNONU: Separation of Powers: An Imperative for Authentic Democracy in Nigeria America dismissed as fantasy the call for or separation of powers36. According to him we are told that we ought to keep the legislative and the Executive department distinct. If we are forming a constitution, the observation would be worthy of due consideration. We would agree to the principles, but the constitution formed, and the power blended, the wished for separation is therefore impracticable37. It should also be remembered that the first congress rejected a constitutional amendment that would have strictly allocated the powers of government among the three branches38. No one has successfully defined the boundaries between the legislative, executive, and the judicial branches. In Federalist 37, Madison compared the problem to naturalist who had difficulty drawing an exact line between vegetable life and the animal world. Such difficulties, however, do not deny the existence of vegetable and animals. Nor is the distinction between earth, air and water rendered meaningless by the existence of dust, mud and clouds. Two principles, seemingly irreconcilable, must operate side by side to make the contradictory; they complement and support one another. An institution cannot check unless it has some measure of independence, it cannot retain that independence without the power to check39. 3. Separation of Powers in Nigeria The 1999 constitution40 of the Federal Republic of Nigeria is anchored on the principle of separation of powers. In Military Governor of Lagos State v Ojukwu,41it was held that under the constitution of the Federal Republic of Nigeria, the executive, the legislature and the judiciary are equal parties in the running of a successful government. The powers granted by the constitution to these organs by Section 442 (Legislative powers), Section 5 (Executive powers and Section 643 (Judicial powers) are classified under an omnibus umbrella known as part II to the constitution as powers of the Federal Republic of Nigeria. The organs wield these powers and one must never exist in sabotage of the order or else there will be chaos44. Apart from the separation of functions the constitution went further to provide for the separation of personnel Section 66(1) (4) of the 1999 constitution45 provides that no public servant shall be member of the National Assembly. Section 68(1) (d) is to the effect that a member of the Senate or House of Representatives who becomes President, Vice President, Governor, Minister etc. must resign his membership of any these houses of the legislative arms46 . By Section 36L. Fisher, The Politics of Shared Power Congress and Executive: Washington D.C. Congressional quarterly press p. 3. 37 Ibid. 38 Ibid. 39 Ibid. 40 1999 Constitution of the Federal Republic of Nigeria (as amended) 41 Military Governor of Lagos State v Ojukwu (1986) AU NSCFC 233, P. 18. 42 Section 4, 1999 Constitution of the Federal Republic of Nigeria 43 Section 5, 1999 Constitution of the Federal Republic of Nigeria 44 Section 6, 1999 Constitution of the Federal Republic of Nigeria 45 Op. Cit. (No. 17) 46 Section 68, 1999 Constitution of the Federal Republic of Nigeria Page | 170 AJLHR 3 (1) 2019 147(2) where a member of the National Assembly is appointed a Minister, he or she shall be deemed to have resigned his membership of the National Assembly47. Under Section 68 (1) (e) a member of the National Assembly loses his position on the Assembly if he becomes a member of a commission or other body established by the Constitution or other law48. The combined effect of sub-section (1) and (3) of Section 67 is that while the President has the right to attend the sessions of the National Assembly he cannot vote. Similar provisions are also made in respect of the State organs of government. In Attorney General Bendel State v. Attorney General Federation49 the Supreme Court rendered judgment to protect the sanctity of separation of powers and held that the Court cannot go beyond an Act of the National Assembly to determine whether in passing such Act the Constitutional procedure was followed. The principles of separation of powers and checks and balances facilitate the efficient working of- and harmonious interaction between the three arms of government in a Federal or Presidential system like ours50. But then, there is a delicate balance to be maintained such that in the process of checking the excesses of a particular arm or branch of government, one branch does not usurp the powers or encroach on the functions of the others. Each arm must maintain its independence and control51. However, in Nigeria the said balance has been over stretched in many cases. For instance, the presidency issues executive orders that read more like legislation which is the dominion of the National Assembly under the guise of investigation carried out under Section 88 of the Constitution52 and issues directives to heads of Ministries, Departments and Agencies of government that are under the arm. There are set down three guiding principles to enhance the effectiveness of separation of powers in Nigeria and they are as follows: a. that each of the three branches of government must be in the hands of different persons, b. that no one branch has control of the other, and c. that no one branch performs the function of another53 Each arm of government is separate and equal and no arm can take over the function constitutionally assigned to the order. 47 Section 147, 1999 Constitution of the Federal Republic of Nigeria 48 Section 67, 1999 Constitution of the Federal Republic of Nigeria 49 Attorney General Bendel State and Attorney General Federation and others (1982) NCLRI, 1; (1981)10 S.C.I. (1981) 3 NCLR 1. 50 www.financialnigeria.com/maintaining-the-principle-of-separation-of-powers-in-nigeria-blog-341.html. accessed 24th March, 2019. By 4.45pm. 51 Ibid. 52 Section 88 1999 Constitution of Federal Republic of Nigeria 53 Op.Cit (No. 50) Page | 171 OBIORA & AKPUNONU: Separation of Powers: An Imperative for Authentic Democracy in Nigeria 4. Checks and Balances The 1999 Constitution54 made some overlapping and intersections in the governmental powers, in order to ensure that one power is a check on the order. Under the said constitution the legislature apart from law making performs other functions which overlap with those of the executive for instance, the executive policies need to be tabled in form of bills for approval by the National Assembly before implementation. Again by section 12(1) of the constitution55 no treaty between the federation and any other country shall have the force of law except it enacted into law by the National Assembly. Also many executive appointments must be confirmed by the senate before they become effective. This is provided for in Section 147 (2) of the Constitution and Section 15456. Also the legislature checks the power of the judiciary. By Section 238(1) of the 1999 Constitution, the appointment of a person to the office of Chief Justice of the federation, justice of the Supreme Court, and president of court of Appeal require the approval of the senate. Similarly, the appointment of a person to the office of Chief Judge of a state requires the approval of the State House of Assembly. The executive exercise checks on the legislature in some ways which includes the following. Section 58(2) of the constitution provides that bills passed by the National Assembly require the assent of the President before they become law. The same principle applies to laws passed by the State House of Assembly. Also the constitution by the power of prerogative of mercy the executive can pardon and commute sentences passed by the judiciary. The appointment of member of the National Judicial council is usually done by the executive. The executive can also remove members of the judiciary on the recommendation of National Judiciary council. The judiciary can also have a check on the legislature and the executive. The interpretation of the constitution and the scope and limits of the power of both the executive and legislature is done by the judiciary. The judiciary can exercise supervisory jurisdiction over the actions of executive department which impinge on people’s rights or obligations. However, it must be emphasized that the checks and balances provisions cannot be an excuse for any branch of the government to usurp the functions of another or to act ultra vires. Thus in Tony Momo v. Senate57 where the plaintiff was being forced to disclose his source of information for alleging that the senators were lobbying for contract from the executive. It was held that Section 82 and 83 of the 1979 Constitution which conferred investigative powers on the National Assembly are limited to law making power of the National Assembly and not to pry into the private business of an individual. 5. Democracy A democracy is a political system, or a system of decision making within an institution and have an equal share of power58 Modern democracies are characterized by two capabilities that differentiate them fundamentally from earlier forms of government. One is that people have the capacity to 54 1999 Constitution of the Federal Republic of Nigeria 55 Ibid. 56 Ibid. 57 Tony Momo v Senate of the National Assembly (1982) NCLR 105. 58 Oxford Advanced Learner’s Dictionary (4th Edition) Oxford University Press, Oxford 1994) P.319 Page | 172 AJLHR 3 (1) 2019 intervene in their own societies. Another is the recognition of their sovereignty by an international legalistic framework of similarly sovereign states. Democratic government is commonly juxtaposed with Oligarchic and Monarchic systems which are ruled by a minority and a sole monarch respectively54. Democracy is generally associated with the effort of the ancient Greeks and Romans, who were themselves considered the founders of Western civilization by the 18th century intellectuals who attempted to leverage these early democratic experiments into a new template for post- monarchical political organization5959. The extent to which these 18th century democratic revivalists succeeded in turning the democratic ideals of the ancient Greeks and Romans into the dominant political institution of the next 300 years is quite conspicuous. However, the critical historical juncture catalyzed by the resurrection of democratic ideals and institutions fundamentally transformed the ensuring centuries and has dominated the international landscape since the dismantling of the final vestige of empire following the end of the second world war. Modern representative democracies attempts to bridge the gulf between the Hobbesian ‘state of nature’ and the grip of authoritarianism through ‘social contract’ that enshrine the rights of the citizen, curtail the power of the State, and grant agency through the right to vote.60 While they engage populations with some level of decision making, they are defined by the premise of distrust in the ability of human populations to make a direct judgment about candidates or decisions on issues.61 There are different types of democracy. Direct democracy exists when citizens get to vote for a policy directly, without any intermediate representatives or houses of parliament. If the government has to pass a certain law or policy, it goes to the people. They vote on the issue and decide the fate of their own countries. Representative democracy or indirect democracy takes place when people choose to vote for who will represent them in a parliament. This is the most common form of democracy found across the world. Under a presidential democracy, the president of a state has a significant amount of power over the government. He/she is either directly or indirectly elected by citizens of the state. The president and the executive branch of the government are not liable to the legislature, but cannot, under normal circumstances, dismiss the legislature entirely. Parliamentary democracy is that which gives more power to the legislature is called a parliamentary democracy. The executive branch derives its democratic legitimacy only from the legislature, i.e. the parliament. The head of state is different from the head of government, and both have varying degrees of power. In authoritarian democracy, only the elites are a part of the parliamentary process. The individuals of the state are allowed to vote for their chosen candidate, but ‘regular people’ cannot enter the elections. The exact opposite of an 59 ‘Democracy’, n. ‘(htt://www.oed.com/view/Entry/49755?rediercted From=democracy eid)OED Online. Oxford University Press. Retrieved 27/03/2019. 60 I. Loius, The measurement of civilization: How Social Development Decides the Faith of the Nation (E- Book.) Princeton: Princeton University Press: 2013. Available from: eBook Academic Collection (E-BSCO host), Ipswich, M.A. Accessed 28/03/2019. 61 M. Olson, (1993) ‘Dictatorship, Democracy and Development’, American Political Science Review, 87 (03), 567-576. Page | 173 OBIORA & AKPUNONU: Separation of Powers: An Imperative for Authentic Democracy in Nigeria authoritarian democracy is the participatory form of democracy. There are different types of participatory democracy, but all of them yearn to create opportunities for all members of a population to make meaningful contributions to the decision-making process. Islamic democracy seeks to apply Islamic law to public policies, while simultaneously maintaining a democratic framework. Islamic democracy has three main characteristics. Firstly, the leaders are elected by the people. Secondly, everyone is subject to the Sharia law – including the leaders. Thirdly, the leaders must commit to practicing ‘shura’, a special form of consultation practiced by Prophet Muhammad. Social Democracy arose as a reaction to neoliberal policies in international economics. Under neoliberalism, profit- making entities like multinational corporations can easily infiltrate other political states. They maintain a level of sovereignty and mobility that no government can counter. The power of the political state seems flimsy in comparison62. 6. Authentic Democracy Authentic democracy requires not only regular ‘one person, one vote’ plebiscites but also both government power and those who wield it63 . As James Madison wrote in the Federalist No. 51, in instituting a democratic republic that is ‘to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself.64 In an authentic democracy would-be leaders must not seek to gain through bullets what they lose through ballots, and elected leaders must be both inclined and obliged to respect human rights and protect civil liberties. Win or lose, in government or out, all who compete for political power in a democracy must accept as legitimate the idea of one or more opposition parties65. The model of democracy that is popular in this age of globalization is liberal democracy. Authentic democracy is a descriptive term that is synonymous with majority rule. It is associated with a democratic consolidation and good governances. However, in Nigeria the effort to attained the high level of democratic consolidation and good governance have been made but yet attained or crown with much success66. It can be argued that, democracy is a system of government where the opportunity to participate in an authoritative decision making is open to all who are willing and interested to share67. Authentic democracy is a system of government that recognized individual rights, a system of 62 https://www.scienceabc.com/social-science/differenttypes-democracy-direct-representative-presidential. accessed 28th March, 2019. By 9pm. 63 https://www.americanmagazine.org/issue/769/columns/authentic. Accessed 24th March, 2019. By 8.23pm. 64 Ibid. 65 Ibid. 66Analyzing the Democracy and Democratic practice in Nigeria F..https://wwwthenigerianvoice.com/nees/181010/analyzing-the-d.. Accessed 29/03/2019. 67 Ibid. Page | 174 AJLHR 3 (1) 2019 representation and electoral system based on the principle of one man one vote and one vote one value68 7. Conclusion In the course of this study we have seen and observed the unique and indispensible position of the doctrine of separation of powers in a democratic dispensation. Consequently in recognition of this the 1999 Constitution69 of the Federal Republic of Nigeria devoted sections 4 for the legislature, 5 for the executive and 6 for the judiciary. They are to act as checks and balances on each other so as to avoid tyranny. Democracy is a system of government by the whole people of a country especially through representatives whom they elect70. Imperative means very urgent and important and needing immediate attention71. Authentic is what is true and genuine then considering the above, how is the principle of separation of powers being applied in our country Nigeria to achieve an authentic democracy? And I think the answer is in the negative. Here the executive don’t seem to know and or understand what separation of powers mean or democracy, may be because he was a soldier, but we are in a democratic dispensation and anybody at the hem of affairs must act accordingly. It is time to replace corrupt, doctoral, and authoritarian forms of government with democratic and participatory ones which recognized the need and importance of separation of powers for an authentic democracy. 68 Ibid. 69 Oxford Advanced Learner’s Dictionary Low Priced edition (Fourth Edition) Oxford University Press, Berlin, 1994p. 319. 70 Ibid, p 622 71 Ibid, p 67 Page | 175 EZE: A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China A SURVEY OF THE LEGAL FRAMEWORK FOR THE PROTECTION OF THE RIGHT TO SAFE FOOD IN NIGERIA AND CHINA* Abstract This paper appraised the legal framework for the protection of the right to safe food in Nigeria and China. It adopted the comparative model of analysis by examining the extant laws for the assurance of the right to food safe food in Nigeria and China. The paper found that the Nigerian food laws were more or less apologetic of the concept of food safety by not covering the bulk of the food consumed by Nigerians in its definition of food. By so doing, they excluded unprocessed and raw food (which is the bulk of food consumed by Nigerians) from regulation. The Nigerian food laws proceeded from a philosophy that only processed and packaged foods should necessarily be regulated. The Nigerian food laws also ignored the need to regulate the distribution of food through outlets such as cafeterias, food vendors and food markets The Chinese legal framework for the protection of right to safe food on the other hand covered most of the grounds. Finally, the paper found that the legislative attitude to the right to safe food in Nigeria was influenced by the prevalence of hunger, insufficiency and non- availability of food in the land. This created the attitude that over regulating food could lead to more hunger. As a consequence, the paper recommends that the Nigerian State should go back to the drawing board to make effective and modern day regulations for the achievement of the right to safe food. This should however be accompanied by effective policies that will boost food security in Nigeria. Keywords: Food, Right to Food, Food Safety and Food Laws 1. Introduction Food is an undeniable and an inextricable principal foundation of livelihood. It is a very vital and basic necessity of life. The importance of food to man and animal is obvious. Safeguarding and maintaining a steady supply of wholesome and nutritious food is therefore necessary. Mortality resulting from the consumption of contaminated food in the world is around four hundred and twenty thousand hundred.1 Food safety is the assurance that food will not cause harm to the consumer when it is prepared and/or eaten according to its intended use. This paper attempts an appraisal of the provisions of food laws in Nigeria and China and their implications for the protection of the right of consumers to safe food.. The establishment of an effective food control and regulation system is the * Uzoamaka Gladys EZE, Reader, Department of International Law & Jurisprudence, Faculty of Law, Nnamdi Azikiwe University Awka. 1 WHO ‘Food Poisoning Kills 420,000 people a year Worldwide’ available at www.independent.co.uk accessed on 29/11/18. Page | 176 AJLHR 3 (1) 2019 key component of ensuring food safety. There is need to safeguard the quality and safety of food both for domestic consumption and for exportation. The right to food is a fundamental human right that enables all human beings to live in dignity and freedom from hunger. It is a right protected under international human rights and humanitarian law. 2. Conceptual Clarifications Food The word ‘food’ has been defined to mean ‘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 (1) Live animals, birds or fish; (2) Articles or substances used as drugs.1 This same definition was reiterated in the Food Drug and Related Products (Registration Etc.) Act.2 The foregoing posits the notion of food to be limited to packaged/processed as against raw/natural food. 3 The implication is that food products like raw yam, melon and so on cannot be described as food hence they are not processed. In relation to cassava, whereas the raw cassava does not qualify as food, ‘garri’ and starch which are its end product may nevertheless qualify. The implication of this failure to cover unprocessed/ raw foods in the definition of food is that the protection afforded by the extant food laws may not avail consumers of food other than processed food. 4 While it may be argued that food sold by hotels, eateries, restaurants, street venders are covered, the raw and uncooked food sold in the various food markets cannot reasonably be said to come within the meaning of food as proffered by the extant food laws. Consequently, a broader definition is recommended to cover and thereby protect as many consumers as possible. This is important so as to bring the regime of food safety to farm production activities and the use of agrichemicals thereof – the beginning part of the food chain system and the inclusion of the informal food sector. It is also recommended that the meaning of food be extended to any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans. 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 3 G. A. Eze, ‘A Critical Appraisal of the Statutory Framework for Food Safety in Nigeria’, in U. Chukwumaeze, R. Olaoluwa, & A. Nnabue (eds.), Law, Social Justice and Development: A Festschrift for Professor Uba Nnabue, Owerri: Imo State University Press, 2013,pp.704-715. ISBN 978-045-648-8 4 Eze,. op. cit at pp 704-715. Page | 177 EZE: A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China Food Security Hunger5and malnutrition6have also had debilitating effects in the productive capacity of the citizens, impacting negatively on the overall economic development of many countries. The term ‘Food security’ has been used to mean ‘access by all people at all times to enough food for an active, healthy life.’7 Food security exists when all people at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life.8 This foregoing definition of food security has four elements: (a)Enough food must be available to meet people’s needs; (b)People must have access to the food that is available under normal circumstances; (c) Violability in production or prices must not threaten this availability, and (d)The quality of food that people consume must be adequate for their needs.9 It is apposite to state that these elements captured some of the key elements of the United Nations Guidelines for Consumer Protection.9 Availability of sufficient food alone is clearly a necessary condition for food security in a country but does not sufficiently explain the attainment of food security in that country. Food security should not be seen only from the perspective of availability. Food, for instance, may be available but the source from which the food is produced or processed may be unhygienic or that the chemical substances used to produce or preserve the food may constitute a health hazard. Health, hygiene and safety consideration therefore becomes imperative in food production in order to protect the health of the people. Availability of food also connotes affordability of food. This is why all developed and developing countries make considerable efforts to increase their food production capacity as well as effective control to assure food safety. Food security has been promoted by the United Nations as the most basic human need and as a central indicator of the existence or absence of absolute poverty and physical well being. As of March 2017, FAO data identified thirty-seven countries whose populations are facing food insecurity. Twenty-eight of those countries are in Africa including Nigeria.10 Food Environment Food environments are created by the physical and social environments of man.. They are the physical, social, economic, cultural, and political factors that affect the accessibility, availability, and 5 a situation in which there is an inadequate quantity of available food 6 indicative of intake of unbalanced diets, 7 World Bank 1986. 8 The World Food Summit 1996 9 United Nations Guidelines for Consumer Protection 1999 amended in 2015. 10 FAO; ‘Food Security’ available at www. World bank.org. August 1, 2018. Accessed on 12/11/2018. Page | 178 AJLHR 3 (1) 2019 adequacy of food within a community or region.11 Food environments may be defined in terms of geographic access to food in a community or neighbourhood, consumer experiences inside food outlets, services and infrastructure in institutional settings, or the information available about food.12 Food safety and environmental hygiene is inseparable. The ultimate aim of both is to improve the quality of life. Environmental hygiene refers to the condition in the routes, e.g. air, soil and water, by which livestock, crops and their food products may become contaminated. Bacterial contamination, fungal toxins, pesticides and toxic metals are the food contaminants of major health concerns. For example, in order to ensure that there is clean and wholesome food on the dining table, clean markets, clean restaurants or clean supermarkets are a must. It is also necessary to check on the process of production at source, the preparation of food, its storage and transport to ensure that the food is safe for human consumption. In other words, food safety cannot be guaranteed without a hygienic environment. Food has to pass through different stages of the food chain before it arrives at the point of consumption. The food environment is relevant not only at the point of production and sale, but also while it is being distributed to the consumers. The issue of food safety is very important, as consumption of unwholesome, putrefied, adulterated food substance will pose serious health hazard to human life. Food safety is closely related to people’s lives, health, economic development and social harmony. Food safety as a process ensures that food available for human consumption is safe and free from internal and environmental hazards. Healthy food environments provide equitable access to healthy foods. Fresh fruits and vegetables and whole foods are available in a variety of retail and food service outlets, grocery stores, stores, industries and markets. Healthier options may not even be available for prepared and pre-packaged foods if prepared under unsanitary conditions. Consumer food environments are characterized by the availability, variety, price, and quality of foods, and of consumer information such as promotional signs, as well as relative prominence of healthier versus less healthy food options. Features such as food preparation, retailing, or food growing facilities in institutional settings shape organizational food environments. The food law should adopt measures to ensure that every aspect of food environment is adequately regulated. Food Safety Food safety guarantees that the food manufactured, advertised, sold distributed and consumed by the populace is free from contaminants and other pollutants. Food- and water-borne diarrhea diseases are leading causes of illness and death, particularly in less developed countries. The rapid globalization of food production and trade has increased the potential likelihood of international incidents involving 11 FAO; ‘ The Food System and the Factors Affecting Food Security and Nutritiion; www.fao.org ;P.Rideout; C National Collaborative Centre for Environmental Health.(NCCEH) ‘Food Environments: An Introduction for Public Health’ available at http://www.ncceh.ca/ accessed on 22/11/2018. 12 op.cit Page | 179 EZE: A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China contaminated food. . Promotion of good health and sustenance of good life is in extrinsically linked with access to sufficient amount of safe and nutritious food.13 Unsafe food may contain harmful bacteria, parasites, viruses or chemical substances cause dangerous illnesses.14 According to WHO one to ten people in the world fall ill after eating contaminated food while at least 230 000 deaths annually results from contaminated foods. 15Food borne diseases negatively influence the socio economic development. The wide spread of incidence of microbiological, chemical or other food safety hazards in food is a serious challenge to food system. The rates of dietary related chronic diseases such as cancer, childhood illness, hypertension, diabetes, coronary heart disease and auto- immune diseases are on the rise. 16Unsafe food is a serious public health concern. Food safety therefore involves the structure and process of producing, processing and packaging of food in such a way as to make them safe for human consumption. Right to Food The right to food is one of those proclaimed by the United Nations General Assembly in the Universal Declaration of Human Rights .17 The rights so proclaimed are declared as a common standard of achievement for all peoples and all nations. Article 25 specifically provides for the right to adequate food and right to be free from hunger. 18The right to safe food is also provided for under the Covenant on Economic, Social and Cultural Rights 19 and in the Convention on the Rights of the Child.20 The foregoing purports that International human rights law has thus firmly established that everyone has a right to adequate food and a fundamental right to be free from hunger. These rights are assumed to be universal although clearly they are not yet globally enjoyed. 3. Rationale for the Protection of the Right to Safe Food Right to safe food is predicated on the need to protect the public health from the adverse consequences of unsafe foods. This will no doubt protect consumers from malicious or intentional attacks on the food system. In this regard consumers should be informed on matters such as package labeling requirements (labeling strives to provide consumers with information so the consumers can make an informed decision) and education programs. This right aims at protecting consumers against fraud and 13 WHO ’Food safety’ wwwwho.int 31st October, 2017. Accessed on 22/11/2018. 14 ibod 15 WHO ‘Food Safety’ 31 October 2017, http://www.who.int/ accessed on 27/11/18 16 D Kertesz; World Health Organization(WHO) The 18th Session of Food and Agricultural Organization(FAO) and WHO of the Codex Cordinating Committee foe Africa, Accra. 17 Universal Declaration of Human Right (UDHR) 1948. 18 UDHR of 10TH dec 1948. 19 Article 11 20 Articles 24 and 27 Page | 180 AJLHR 3 (1) 2019 to ensure that buyers receive what the buyers believe is being purchased. For instance in the case of packaged food products, right to safe food guarantees that the package contains what the label states. The right also assures fair trade practices to prevent sellers from misrepresenting what they are selling and from misleading consumers about the quality of their product. It also protects the environment by recognizing that food production systems impact on air and water qualities. Eight hundred million human beings around the world suffer from severe malnutrition. For them, food security is non- existent. This represents a severe weakness in existing human rights policy. Food is the most basic of human needs and is central to any discussion of human rights and social development. 4. The Legal Framework for the Protection of the Right of Food Consumers in Nigeria The following laws regulate the right of consumers to safe food in Nigeria: (a) Food and Drugs Act21 (b)National Agency for Food and Drugs Administration and Control Act22; (c) Marketing of Breast Milk Substitute Act; 23 (d)Food and Drugs Product Registration Act;24 (f).The Animal Disease Control; 26 (g)Consumer Protection Council, 27 and (h)Counterfeit & Unwholesome Processed Foods (Miscellaneous Provisions) Decree 25 of 1999. Food and Drugs Act This Federal statute makes provisions for the regulation of the manufacture, sale and advertisement of food in Nigeria.28 It has no direct provision however on the requirement for compulsory instructions as to the usage of food and drug products. Food consumers need to be informed on the mandatory usage instructions in relation to a food product. This information enables them to effectively discharge their role in their usage of the said product and thus assure safety in their usage of same. The absence of this provision leaves the uninformed consumer helpless and does not enable effective protection of the right of food consumers to safe food..The Act prohibits the sale of any article of food which is unfit for human consumption.29 Regrettably, the phrase ‘unfit for human consumption’ is not defined by the Act. The Act also prohibits the sale, importation, manufacture or storage of any article of food which has in it or upon it, any poisonous or harmful substance not being a food additive, or 21 Formerly Decree No35 of 1974 now cap F32, LFN 2004.Now Cap F32LFN 2004 22 Formerly Decree No. 15 of 1993 now Cap N19 LFN 2004 as amended. 23 Formerly Decree No 41 of 1988 24 Now Cap, F33,LFN,2004 26 Formerly Decree No. No. 10 of 1988 now Cap A17 LFN,2004 27 Formerly Decree 66 of 1992 Now Cap C25,LFN, 2004 28 See the long title to the Food and Drugs Act 29 Section 1(1) (b) Page | 181 EZE: A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China contaminant of a type and within the level permitted by regulations made under the Act.30 Regrettably, the words poisonous and harmful are not defined by the Act. The implication is that these words may be susceptible to any possible interpretation. This will undermine effective protection of the right of food consumers to safe food. It is suggested that the words be clearly defined to cover all substances capable of producing adverse effect on the health of the consumer.The punishment for contravening the rules as ‘not less than fifty thousand naira fine or imprisonment for a term not exceeding two years or to both such fine and imprisonment. 31 National Agency for Food and Drug Administration and Control Act 1993 This Act created the National Agency for Food and Drug Administration and Control to regulate and control the manufacture, importation, distribution, advertisement, sale and use of food amongst other regulated products.32.32Many regulations are made pursuant to the Act. It prescribes a maximum of a fine of N50, 000 or imprisonment for a term of one year or to both such fine and imprisonment for one year.33 This will however be of no deterrent effect as they are too minimal. Foods Drugs and Related Products (Registration, Etc) Act This Act prohibits the manufacture, advertisement, sale, distribution, importation, exportation of processed food manufactured, in Nigeria unless it has been registered in accordance with the provisions of this Act by NAFDAC.34 Marketing (Breast Milk Substitutes) Act35 This Act provides for the regulation of production, supply, sale, advertisement and distribution of infant milk substitutes, feeding bottles and infant foods with a view to the protection and promotion of breast feeding and ensuring the proper use of infant foods and for matters connected therewith.36 It prohibits the importation, sale, advertisement, distribution or offer as sample or gift of breast-milk substitutes or infant formula to the public unless such products have first been registered with the National Agency for Food and Drugs Administration and Control.37 For the purposes of this Act, breast milk-substitute means any food being marketed or otherwise represented as a partial or total 30 Section 1 (1) a Food &Drugs Act Cap F32 LFN 2004 32 Section 17 (1) 32 See s. 5 of the Act 33 Section 25(2) 34 Section 1 of the Food Drugs and Related Products(Registration, Etc)Act 35 Formerly Decree No 41 of 1988 36 See the Long Title of the Marketing (Breast Milk Substitutes) Act 37 Section 1 of the Act. Page | 182 AJLHR 3 (1) 2019 replacement for breast milk.38 It also defined Infant formula to mean a breast-milk substitute formulated and adapted to satisfy the normal nutritional requirements of an infant not exceeding twelve months old in accordance with applicable regulations under the Food and Drugs Act.39 It is highly regrettable that the Act committed this all important task to NAFDAC in addition to its other onerous and sometimes impossible tasks. This work hereby recommends that in view of the significant role the food administered on the infant will play on his life and health, a separate and distinct agency should be charged with the administration overseeing the implementation of this Act. The persons to man the said agency should possess the requisite skill, and training in line with (United Nations International Children Emergency Fund (UNICEF) and World Health Organization (WHO) standards. Other challenges to the implementation of the Act include continued violation of the International Code of Marketing of Breast milk Substitutes (adopted by World Health Assembly in 1981.(BSM) and national regulations by manufacturers of BMS. This is mainly because the penal provision of the Act lacks deterrent value.40 It is recommended that NAFDAC staff should be trained to be familiar with the history and provisions of the International Code and to recognize violations of the Code.. Animal Diseases (Control) Act No. 35 of 1984 as amended by Animal Diseases Amendment Act41 Animals harbored in poultries and hatcheries are veritable source of protein, a necessary food nutrient deficiency of which will cause kwashiorkor. This focus of this Act is to provide for the control and prevention of animal diseases, with the object of preventing the introduction and spread of infectious and contagious diseases among animals, hatcheries and poultries in Nigeria.42The Act stipulates a penalty of three months imprisonment with an option of fine for any contravention or non-compliance with its provision. 43It is however doubtful whether this will serve any deterrent purpose. This explains why the Nigerian meat markets are flooded with unwholesome and diseased meat that pose health hazard to their consumers. Counterfeit and Fake Drugs & Unwholesome Processed Foods (Miscellaneous Provision) Act44 This Act aimed at prohibiting and preventing the production, importation, sale and distribution of unwholesome processed foods amongst others other products. It aims at protecting the consumers 38 Section 14 of the Marketing of the Breast Milk Substitute Act Cap M5 LFN 2004 39 ibid. 40 Section 11(1) provides that contravention of any of the provisions of this Act shall be guilty of an offence and liable on conviction to a fine not exceeding N1000, or to imprisonment for a term not exceeding two years or to both such fine and imprisonment 41 Formerly No. 18 of 1991 42 See the Long Title to the Act 43 Section 10 of the Act. 44 Cap C34, Laws of rhe Federation of Nigeria 2004 as amended. Page | 183 EZE: A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China from unsafe foods and drugs products.45 The Counterfeit and Unwholesome Processed Food Act merely prohibits the sale, manufacture, advertisement, importation and exportation of unwholesome processed food products without more.46The phrase ‘unwholesome processed food product’ was defined under the Act to include 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 unsanitary conditions where it may have been contaminated with filth or whereby it may have been rendered injurious to health.47 This implies that the unprocessed food products are excluded from the operation of this Act. This is not in the best interest of the consumers. Neither the Act nor did any other food law made provision for the health and safety compliance in relation to unprocessed foods. The extant food laws should be revised to incorporate the safety of unprocessed foods. Suffix it to say that the unprocessed food products otherwise called raw foods are ready and main source of raw materials for our foods industries. It will be recalled that a food industry include the industries engaged if food production, manufacturing, the restaurants, cafeterias, and hotels and all forms of activities in relation to food from farming to the dinning. The people who buy or use food bought from this places are consumer and are entitled to legal protection. Constitution of the Federal Republic of Nigeria 199948 A country’s constitution plays a fundamental role in the realization of the right to food because it is the supreme law of the land and the source of all political power within a nation. The logical consequence of the superiority of the constitution is that it supersedes all acts of the legislature contrary to it. Nigeria recognizes the right to food or provide for state obligations related to food and nutrition security as a directive principle of state policy. Directive principles are statements of principle. They often represent the values to which a society aspires although at the time of drafting they may not reflect a broad societal reality. Very often these constitutional provisions guide governmental action, particularly in the socioeconomic field, but are not considered providing for individual or justiciable rights. Nigeria adopted the ICESCR and also ratified the UDHR amongst other international conventions. The government has undertaken to cooperate to ensure the realization of the right to safe food and to respect, protect and fulfill the right to food and the fundamental right to be free from hunger at all times. This means that, the government must refrain from taking measures liable to deprive anyone of access to food. 45 Section 1 46 Section 1 ibid 47 Section 12 of Cap C34, LFN 2004 48 Cap C38 Constitution of the Federal Republic of Nigeria 1999 as amended. Page | 184 AJLHR 3 (1) 2019 5. Legal Framework Governing Food Safety in China Chinese Constitution 1982 The Chinese Constitution made provisions for the protection of the fundamental human rights of Chinese citizens. However, the right to food or safe food was not provided for under this Constitution.49 A prevailing Chinese school of thought posits that constitutional provisions can only be guaranteed through ‘transformation’ into lower level legislation, which is to be binding upon the organs of state and citizens.50 However, a white paper made reference to a right to subsistence. This right was however not explained in the white paper. Commentators have however stated that it is within this right to subsistence that the right to safe food is subsumed. This right to subsistence has however not been enacted as part of the Chinese Constitution. Food Safety Law of the Peoples Republic of China 2015 The legal framework governing food safety in China is composed of hierarchical laws, regulations, and standards that allocate responsibilities among different players and regulate their relationships. The 2015 Food Safety Law is currently the base of all other food safety regulations. 51It is the primary piece of legislation on food safety. The Law places responsibility in the hands of Chinese Food and Drugs Administration (CFDA). It provides a new legislative framework for food safety management in China. As an improvement on the 2009 FSL, the 2015 FSL puts more focus on risk prevention54 and risk assessment55, traceability56 and supervision 57in the entire food chain in China. It contains strict penalties for those who do not comply.58 It also stresses the use of social governance to help supervise the food regulatory system.59 It further provides that the State shall establish a full traceability system for food safety. Food producers and distributors shall establish the traceability system for food safety in accordance with the law so as to ensure food traceability.60The State shall also encourage food producers and distributors to collect and preserve production and distribution information and to establish the traceability system for food safety by means of information technology. The Act defined food to mean any substance that has been processed or not processed that 49 Chapter2 of the Chinese Constitution containing article 3 51 Repealed The 2009 Food Safety Law 54 Articles 14-22, Chapter 2 of the Food Safety Law 55 Chapter 5, Articles 85-90 56 Article 42 57 Chapter 5, Chapter 8 Article 108-121 58 Chapter 9, 122-149 59 Article 42 60 Article 26 Page | 185 EZE: A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China is suitable for eating and/or drinking, including substances used as food and traditional Chinese medicine, excluding substances solely used as medicine. 61 The Act imposes obligation on food manufacturers to ensure that foods comply to safety requirements of the importing country and is suitable for human consumption.62 The amended Food Safety Law has an extensive chapter on production and distribution, in which four key themes emerge. First, self- regulation and governmental oversight work in tandem. On the one hand, a growing emphasis on self- regulation is evidenced by producers’ and distributors’ obligation to establish and maintain a traceability system, preferably using information technology, a health management system for their practitioners, and a self-inspection system. Specific rules govern the production and distribution of edible agricultural products. They must also fully abide by the food safety standards and relevant State regulations regarding agricultural inputs such as pesticides, fertilizers, veterinary drugs, feed, and feed additives, including application intervals and non- application.63 A key revision under the new law provides for a stricter regulation for baby formula food. The ingredients, food additives, formula and labels of baby formula food must be recorded with provincial level FDAs. Formulas for baby milk must be registered with CFDA.64 Reports and other materials showing the development process and safety of the formula must be submitted for formula registration.65 Baby milk formulas that are manufactured overseas and imported to China must not be repackaged for import purposes. For manufacturers of baby milk powder, the same formula cannot be used under different brand names. The Food Safety Law established a new management framework for imported food, It requires importers to establish an auditing system for foreign food exporters or producers.66 With the increasing popularity of online shopping and cross border e-commerce for food imports, Chinese consumers are able to access overseas food products in a quicker and less restricted manner. Ordering food online is now a global trend and the safety of food purchased over the internet has raised issues. Under the new law, providers of third-party online food trading platforms must review a trader’s permit and register the real identity of the trader.67 Third-party platform providers have three contractual obligations. The first is registration for which they shall implement real-name registration of admitted food distributors, specify their food safety management responsibilities, and inspect their licenses if such is required by law. The second is inspection for which upon finding any 61 Article 150 62 Chapter 6, Article 91-101 63 Article 44 64 Article 77 65 Article 81 66 Articled 91-101 67 Article 62 Page | 186 AJLHR 3 (1) 2019 activity in breach of the Food Safety Law, they shall immediately stop the activity and report to the food and drug administrative authority at the county level. In case of a serious breach, they shall immediately stop providing online trading platform services. The third is indemnification liabilities meaning they should be held jointly and severally liable with the food producers and distributors, or that they should be held liable independently. Any consumer whose lawful rights and interests are damaged due to the purchase of food via any third-party platform of online food trade may claim indemnification against the admitted food producer or distributor. The implication of this provision is that if a platform provider becomes aware of food safety violations, the provider must immediately stop the trader from such illegal activities and report the same to local FDAs. For serious violations, the provider must immediately stop providing the internet platform service. If a consumer suffers damages from food products purchased through an online trading platform, the consumer can demand damages from the food trader. Where the platform provider cannot provide valid contact information of the food trader, the platform provider will instead be liable to pay the damages.68 The Food Safety Law also imposes higher penalties for any breaches in relation to food safety. For example, food traders who engage in food production without a proper permit will be subject to an administrative fine of up to 20 times the value of the food product.69 The Food Safety Law also provides for mechanisms linking administrative law enforcement to the judicial system, to increase the accountability of food traders. Punitive damages up to 10 times the products’ value are available to consumers where the food products fail to meet food safety standards, except for deficiencies in product labels and instructions if such deficiencies do not mislead consumers.70 Cafeterias of schools, kindergartens, nursing houses, and construction sites shall fully comply with laws, regulations, and food safety standards. Any organization or individual ordering meals from meal providers shall order meal from those who have the business license of food production or distribution and shall inspect the food so ordered according to the requirements. Meal providers shall fully comply with laws, regulations, and food safety standards, process meals under the current order, and ensure food safety. 71 In fact the Law obliges catering service providers to formulate and implement requirements for raw material control and mandates them not purchase to food raw materials that do not satisfy food safety standards. 72Catering service providers are encouraged to ensure processing transparency and to publicize such information as food raw materials and their sources.73 The State shall establish a food recall system. In the event that a food producer finds that the food being 68 Article 131 69 Section 122 70 Article 122-126 71 ibid part. At XII-XIII 72 Article 57 73 Article 55 Page | 187 EZE: A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China produced does not comply with food safety standards or is proven to likely endanger human health, the food producer shall immediately stop production of the food, recall the food product released to the market, notify relevant producers, distributors and consumers, and create a record on recalls and notifications.74Food that the producer deems necessary for recall shall be recalled immediately.75 Food Hygiene Law of the People's Republic of China 1995 This was enacted for the purpose of ensuring food hygiene, preventing food contamination and harmful substances from injuring human health, safeguarding the health of the people and improving their physical fitness.76 Agrifood Quality and Safety Law 2006 The present Law is formulated for the purpose of guaranteeing the quality safety of agricultural products, maintaining the health of the general public, and promoting the development of agriculture and rural economy.77 Product Quality Law78 This law was formulated with a view to reinforcing the supervision and regulation of quality, improving the quality of products, clarifying the liabilities for product quality, protecting the legitimate rights and interests of consumers and safeguarding the social and economic order. 6. Administration of Food in China The primary enforcement powers for food safety used to be divided among different agencies. They include: Chinese Food and Drug Administration (CFDA) which is the main food safety actor to oversee food manufacture, distribution and consumption, and to manage regulation processes for food and drug safety.91 General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) : The (CFDA) works closely with the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), which manages the import and export of foods at domestic and international 74 Article 63 75 Articles 55-58 76 Article 1 (Adopted at the 16th Meeting of the Standing Committee of the Eighth National People's Congress on October 30, 1995 and promulgated by Order No. 59 of the President of the People's Republic of China on October 30,1995) 77 See Article 10 78 1993, last amended 2009 91 Chenhao Jia and David Jukes,http://www.cfda.gov.cn/WS01/CL1605/163890.html 29 last amended 2013).30 27 CFDA website: Page | 188 AJLHR 3 (1) 2019 levels. AQSIQ chiefly handles national quality, entry-exit animal and plant quarantine, import-export food safety, certification and accreditation, and standardization. 92 AQSIQ keeps record of imported food products. Food importers and importing agents must be recorded with the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ). 93Manufacturers of imported food products must also be registered with the AQSIQ participates in standard–setting international organizations such as the International Organization for Standardization (ISO) the Standardization Administration Ministry of Agriculture (MOA) is an executive state agency within the government of the People's Republic of China. Areas of responsibility includes agriculture and environmental issues relating to agriculture, fishery, consumer affairs, animal husbandry, higher education and research in the field of agricultural sciences and so on.94The Ministry was formed in the interest of food safety. MOA is involved in the safety of edible agricultural products. National Health and Family Planning Commission (NHFPC) has two primary roles in food safety: food safety standard setting and risk assessment. NHFPC hosts the China National Center for Food Safety Risk Assessment (CFSA), a technical institution that conducts food safety risk assessment and provides technical support for the body that houses the international body of standards on food safety. 93 Apart from these four main institutions (CFDA, MOA, AQSIQ, and NHFPC), other national actors perform supporting functions. They include China National Certification and Accreditation Administration (CNCA) and, the Ministry of Commerce (MOFCOM) which devises plans and policies for catering services and circulation of alcohol products and takes the lead on WTO related issues, such as SPS/TBT Committee meetings. They also pioneered and are fine-tuning a national traceability system for vegetable and meat products. Local authorities also oversee food safety management. Under the supervision and coordination of local people’s governments, local branches of national ministries administer and manage food safety in their respective local jurisdictions. 7. Comparing the Nigerian and Chinese Systems The Constitution of the Peoples Republic of China did not provide for the right to safe food. 94The Constitution has not also enacted the right to subsistence as a fundamental right. The Constitution of 92 FDA-AQSIQ China; Agreement on the Safety of Food and Feed available https://www. Fda.gov accessed on 29/11/18. 93 op.cit 94 Xue Liang; ‘Ministry of Agriculture’ available at www.china.org accessed on 24/11/18 accessed on 23/11/18. MOA 93 op.cit. 94 See the Constitution of the Peoples Republic of China 1982 Page | 189 EZE: A Survey of the Legal Framework for the Protection of the Right to Safe Food in Nigeria and China the Federal Republic of Nigeria, 1999 (CFRN) on the other hand merely mentioned the right to food under its directive principle of state policy and to that extent it is not justiceable.95 The Constitution of both countries by this failure to make express provisions for the right to safe food have placed limitation to the rights of food consumers. There should be clear and justiceable provision on the right to safe food in national constitutions. The Chinese Law defined food to include both processed and unprocessed food. 96The definition of food proffered by the extant Nigerian Food laws excluded raw and unprocessed foods from the meaning of food. It is not also clear whether or not the art of food processing is limited to food industries and whether eateries, restaurants, cafeteria and food vending come within the purview of the Nigerian legislations. The implication of the lack of specific provision in this regard is obviously not in the interest of the food consumers. The Chinese Law has at least four explicit provisions for the regulation of food service providers.97 Food vending is a service that is not only indispensable but has attained a global perspective. Regrettably none of the extant Nigerian food laws contemplated food service providers like eateries, cafeterias, restaurants amongst others. Furthermore, the Chinese Law is commendable to the extent that it considered new types of food trading activities, including food sold on a third-party trading platform and food imported through e- commerce channels.98 The Nigerian food laws did not even contemplate the fact that food could be a subject of e-commerce. The implication is that Nigerian food consumers may not enjoy the ease of e- commerce in relation to food products. The Chinese Laws made provisions for genetically modified foods. It contained rules on packaging, labeling of genetically modified foods. 99 The Nigerian food laws have no singular provision on genetically modified foods. The European Council Directive obliges that food business owners and handlers should be able to identify any person from whom they have been supplied any food substance and to whom they have also sold to. They should have systems and procedures that allow this information to be made available to competent authorities on demand.99 Traceability acts as a risk control tool to be used in curbing a food safety problem. The Chinese Law has an elaborate provision on traceability.100 Traceability enable the distributors and consumers in the food chain to recall a food products which do not comply with food safety standards or is proven to likely endanger human health .101 95 Section 18(2(d) 96 Article 150 of the Chinese Food Safety Law 2015. 97 Article 55-58 98 Article 62 99 Article 69 of the Food Safety Law 2015. 99 Article 18 of the European Union Regulation on Food Safety 100 Article 42 101 Article 63 Page | 190 AJLHR 3 (1) 2019 8. Conclusion and Recommendations The legal framework for protecting the right to safe food in China is robust and well entrenched in the provisions of the amended Chinese food law and the institutions established for its enforcement. This is notwithstanding the fact that the right to safe food is not mentioned in the Chinese Constitution. Conversely, the legal protection of the right to safe food is still in its embryonic stage in Nigeria. The fact that this right is only mentioned in the non justiceable part of the Nigerian Constitution has not helped its realization. Comparing the right to safe food in Nigeria and China is like comparing a little baby and a fully growned adult. It would appear as if the Nigerian neo colonial State has not come to terms with the fact that the right to safe food is a fundamental human right. This is in spite of its pro- west stand with all the pretentious of pseudo commitment to fundamental human right. The punishment for adulteration of food substances in Nigeria is paltry and the enforcement mechanism vague and insufficient. In Nigeria, for example, only the National Agency for Food Drug Administration and Control (NAFDAC) is over burdened with the task of monitoring, implementing and enforcing the paltry punishment provision of the various food laws. In such a situation, the right to safe food becomes a mirage. It is also noteworthy that the bulk of unprocessed foods consumed by Nigerians are excluded from regulation with respect to adulteration. It is therefore not possible to talk about the right to safe food in Nigeria when unprocessed and raw foods are excluded from the definition of food proffered by the Nigerian food laws. Furthermore, in this days of high technology, genetically modified (GM) food is not contemplated by any of the Nigerian food laws. This is notwithstanding the fact that genetically modified foods are daily being imported into the country. Finally, trading of food on the internet is not regulated in Nigeria despite the prevalence of e- commerce as a mode of trading. However, the Chinese laws need to do more in ensuring that food exported from China to other countries conforms with the strict specifications of the Chinese food laws. This is because we have had cases of adulterated or counterfeit rice being imported into Nigeria from China. It is strongly recommended that Nigeria should go back to the drawing board in order to review its obsolete and stagnant food laws so as to bring them in line with global best practices as exemplified from the Chinese experience. Furthermore, unprocessed and raw foods must be given express mention in the laws to be reviewed. Nigeria must also strive for food sufficiency, affordability and availability. This is so because when food is not sufficiently available and affordable; the tendency is for the legislating authority to ignore the necessity of ensuring food safety in line with the popular parlance that ‘half bread is better than none’. However, half bread can only be better than none when that half bread is safe. Where half bread is lethal as in the case of plastic rice that was imported into Nigeria some months ago, such half bread is definitely worse than none. As a summary, hunger must be dealt with in the land to ensure the protection of the right to safe food by Nigerian citizens. There is a need to boost food production in Nigeria as a means of ensuring the protection of the right to safe food. Page | 191