AJLHR 3 (2) 2019
AFRICAN JOURNAL OF LAW
AND
HUMAN RIGHTS
VOL. 3(2) SEPTEMBER, 2019
CITATION: AJLHR (2019) 3 (2)
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© International Centre for Human Rights and Peace Studies (ICHRPS)
Published, September, 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 (2) 2019
TABLE OF CONTENTS
Foreign Investment, Human Rights and National Development: A Jurisprudential Approach MVC OZIOKO & IKENGA K.E. ORAEGBUNAM 1
Human Rights and Humanitarian Cost of the Syrian War MARIA OMOZELE EDEKO 15
Plea Bargain and the Question of Abuse of Right to Fair Hearing in Nigeria: Where Lie the Odds? REGINALD ANOSIKE UZOECHI 27
The Nigerian Constitution and Federal Character Principles: A Critical Appraisal ANN CHINWE AKPUNONU 38
Right to Life and Defence of Property in Nigeria: The Child’s Right Act in Focus LINDA AMARACHI OTI-ONYEMA 49
The United Nations Convention on the Rights of the Child: The Dichotomy between Rhetoric and Reality VITUS MAZI UDEGBULEM 59
Low Reporting of Rape Cases in Nigeria: Challenges and Prospects TOMI GRACE OBAGBOYE 68
The Rise of Non-consensual Pornography in Nigerian Cyberspace: Imperatives for Statutory Criminalisation NNAMDI G.IKPEZE & OYEBANKE APARA 79
The Legality of Declaring an Election Result Inconclusive by Independent National Electoral Commission (INEC) in Nigeria: A Reflection of the Electoral Act 2010 (As Amended) NWAMAKA ADAORA IGUH 86
Re-Evaluating the Relationship between Patent Rights and Human Rights for the Enhancement Of Access To Essential Medicines JENNIFER HEAVEN MOGEKWU MIKE 91
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The Jurisprudence of Economic Sovereignty MVC OZIOKO & IKENGA K.E. ORAEGBUNAM 103
Nigeria’s Multi-Religious Practice: A Challenge to Sustainable Environmental Protection C.I.N. EMELIE 115
The ‘Concurrency’/ ‘Coordinacy’ of the Jurisdiction of States’ High Courts, Customary and Sharia Courts of Appeal: Constitutional Matters Arising MUSA Y. SULEIMAN 120
Is that the Man? Imperatives for Identification Parade in Nigeria B.E. EWULUM 130
The Evolution of Disability Rights in Nigeria: Pitfalls and Prospects CHINEZE SOPHIA IBEKWE & ONYEKA CHRISTIANA ADUMA 137
Looking Beyond the Actors and Unto the Cause: The Legal Status of Militants in the Niger Delta Region of Nigeria CHUKWUDUMEBI OKOYE-ASOH, UJAH MAUREE AKUNNA & JESSICA NWINEE 148
Competition Issues in Mergers and Acquisitions in Nigeria and Competition and Consumer Protection Act 2019 ONYINYE O. C. CHUKWUOCHA 159
Youth Development and Empowerment in Nigeria: The Panacea for National Integration ANN CHINWE AKPUNONU 169
Procedure for the Enforcement of Fundamental Rights in Nigerian Courts: Challenges and Prospects ALEX CYRIL EKEKE 181
The Accusatorial and Inquisitorial Models of Criminal Procedure: A Historical and Comparative Approach EVODE KAYITANA 187
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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 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 (5thedn, London: Palgrave Macmillan, 2013) p.3.
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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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FOREIGN INVESTMENT, HUMAN RIGHTS AND NATIONAL DEVELOPMENT: A JURISPRUDENTIAL APPROACH* Abstract Human rights are a product of a philosophical debate that has raged for over two thousand years. Respect for human rights is an important index of national and individual development. It seems that a measure of a country’s claim to be developed is based on how the human rights of its citizens are protected and enforced. This paper briefly examines the relevant thread passing through the observance of human rights ethos, foreign investment and national development. The discourse is premised on the idea that every process of development including economic must target the dignity of the human person as its terminus ad quem. Specifically, this study demonstrates how foreign investment can lead to national development within the milieu of protection of and respect for human rights.
Keywords: Foreign Investment, Human Rights, National Development, Jurisprudence
1. Introduction Recent events, such as the Arab uprisings and the global financial crisis, have clearly reinforced the interdependence of human rights, development, peace and security which are the three fundamental pillars of the UN and the cornerstones of its Charter. These events demonstrated that economic growth in the absence of adequate measures to promote inclusive and participatory development is unsustainable. Indeed, an absence of accountability and the rule of law in the economic sphere, inequality, corruption, mismanagement of public resources, austerity measures and conditionalities continue to trigger civil unrest in many parts of the world, which in turn undermine the sustainability of long-term development and growth. Early warning signs of impending and imminent conflicts and the collapse of States are rooted in the continuing denial of fundamental rights in the economic, social and cultural spheres. Unless addressed, the underlying causes of gaps in the development and the economic sphere lead to repetitive cycles of violations, shrinking democratic spaces, entrenched discrimination and a blatant disregard for the rule of law.1 This study seeks to address the question of the relationship that exists among human rights observance, foreign investment, and national development.
2. Human Rights and Development Oputa describes a ‗right‘ in its most general sense ‗as either the liberty (protected by law) of acting or abstaining from acting in a certain manner, or the power (enforced by law) of compelling a specific person to do or abstain from doing a particular thing. A legal right is thus the capacity residing in one man of controlling, with the assent and assistance of the State the action of others. It follows then that every right involves a person invested with the right, or the person entitled; a person or persons on whom that right imposes a correlative duty or obligation; an act of forbearance
*MVC OZIOKO, PhD, LLM, BL, Senior Lecturer, Department of International Law and Jurisprudence, Nnamdi Azikiwe University, Awka, Nigeria. Phone Number: +2348039464374; and *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, Awka, Nigeria. E-mail: [email protected]. Phone Number: +2348034711211. 1Integrating Human Rights in Development and in the Economic Sphere‘ < http://www.ohchr.org/EN/AboutUs/ Pages/developmentintheeconomicsphere.aspx> Accessed 14/8/17. Page | 1
OZIOKO & ORAEGBUNAM: Foreign Investment, Human Rights and National Development: A Jurisprudential Approach which is the subject matter of the right, and in some cases an object, that is, a person or thing to which the right has reference, as in the case of ownership. A right therefore is in general, a well- founded claim, and when a given claim is recognized by the civil law, it becomes an acknowledged claim or legal right enforceable by the power of the state‘.2
A right is something that is due to a person by just claim, legal guarantee, or moral principle. It is a legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is wrong3.Definition of the term ‗Human Rights‘ has always been affected by ideological leanings. Thus, the definition accepted within a civil law society might not be accepted by a dictatorship. However, with the internationalization of human rights, the definition can no longer be affected by ideologies. According to Miller, Human rights are ‗those claims which are mainly directed towards providing a minimum standard of decent living worthy of man as a human being (never as an animal). For this reason, human rights represent that very fundamental demands or claims which the individual or groups make on themselves and their society/governments; which differ from appeals to benevolence and charity. The rights are the property of man as man without any exception. That is the reason we say that a man without rights is not more than animals‘.4
The United Nations in 1987 described Human Rights as follows; ‗Human Rights could be generally defined as those rights, which are inherent in our nature and without which; we cannot function as human beings5.The Webster‘s Encyclopedic Unabridged Dictionary of the English language defines Human Rights as pertaining to, characteristic of, or having the nature of mankind, moral and natural creatures. Human rights are therefore those rights, which all persons everywhere have by virtue of belonging to the human race. They are inherent in any human being simply by the fact of his humanity. Human rights include those civil, political, economic, social, cultural, groups, solidarity and developmental rights which are considered indispensable to a meaningful human existence. For most actors in the field of social and economic development, the use of human rights instruments in policy and programme formulation, implementation and monitoring are imperative for national development. The rights-based approach to development describes situations not simply in terms of human needs, or of developmental requirements, but in terms of society‘s obligation to respond to the inalienable rights of individuals. It empowers people to demand justice as a right, not as charity, and gives communities a moral basis from which to claim international assistance where needed.6
With the establishment of the indivisibility of human rights, a holistic approach to the impact of human rights on development has become imperative. The use of human rights instruments to demand political, social, economic and cultural development have let to the need to streamline human rights in instruments in policy and programme formulation, implementation and monitoring.
2C Oputa, ‗Human Rights in the Political and Legal Culture of Nigeria‘ ,2ndIdigbe Memorial Lectures, Nigerian Law Publications Ltd., Lagos, 1989, pp. 38 – 39 Cited in Okpara Okpara, Human Rights Law & Practice in Nigeria Vol. 1, (Enugu: Chenglo Limited, 2005) p.37. 3 B A Garner (ed.), Black’s Law Dictionary, ( 9thEdn, St. Paul Minn., West Group, 2000) . 4CMN Chukwudozie, Introduction of Human Rights and Social Justice, (Enugu: Ochumba Printing and Publishing Co. 1999) p. 3. 5O Okpara, Op Cit. p. 41. 6K Annan, Secretary-General of the United Nations. Annual Report on the Work of the Organization 1998. Page | 2
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A major value of integrating development policy into a human rights framework is its potential to shift priorities in the political economy of resource allocation and distribution. Within such a framework, the conditions needed to achieve a decent standard of living are to be treated as basic human rights, rather than the uncertain results of charitable actions or policies aimed exclusively at economic efficiency. In this regard, it has been argued that the efficiency criteria of economic policies should aim to foster social cohesion and well-being, instead of considering the social consequences of these policies as side effects that can be remedied separately. Human rights instruments, offer a bridge between ethical standards and the legal obligations of states and other organs of society.
The body of international human rights instruments most commonly referred to in relation to economic and social questions include: (i) International Bill of Human Rights which comprises the Universal Declaration of Human Rights7, International Covenant on Economic, Social and Cultural Rights (ICESCR)8, and International Covenant on Civil and Political Rights (ICCPR)9 and its two Optional Protocols; (ii) Convention on the Elimination of All Forms of Racial Discrimination (CERD)10; (iii) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)11; (iv) Convention on the Rights of the Child (CRC)12; (v) Conventions of the International Labour Organization (ILO), particularly its ‗core labour standards‘ on child and forced labour, discrimination and rights to freedom of association and collective bargaining, which the 86th ILO conference in June complemented with adoption of the Declaration on Fundamental Principles and Rights at Work; and, (vi) African Charter on Human and Peoples‘ Rights13.
These covenants and conventions have been widely signed and ratified by states across the world and overseen by their respective UN treaty monitoring bodies such as the Committee on Economic, Social and Cultural Rights, to which state Parties must report periodically14. In 1986 the UN General Assembly adopted the Declaration on the Right to Development which, albeit not enjoying legally-binding status, is often regarded as a holistic vision integrating civil and political as well as economic, social and cultural rights, and striking a balance between national and international human rights responsibilities of states. Again, the 1993 Vienna Declaration and Programme of Action, also states that the right to development is ‗a universal and inalienable right and an integral part of fundamental human rights.‘15
7Of 1948. 8 1966. 9 1966. 10 1965. 11 1979. 12 1989. 13 1986. 14Third World Network ‗Human Rights Approaches To Development‘
OZIOKO & ORAEGBUNAM: Foreign Investment, Human Rights and National Development: A Jurisprudential Approach
The concept of sustainable development could be applied in a more practical way, especially in this context of finding a legal framework for encouraging sustainable economic activities in developing countries. Whenever sustainable development is to be applied, it must be clear whether the concept is employed, on the one hand, to articulate an ‗international (regional or national) development policy, strategy or agenda on the one hand; or whether it is to inform or direct development activities‘16 (for example, investment projects) towards a sustainable path. There is a definite interrelationship between both goals. The strengths of sustainable development as a concept are its value-oriented nature and its capacity to influence international human rights law. It embodies imaginative solutions to environmental, developmental and human rights issues that plague FDI, which can then be used in reshaping international law. Puvimanasinghe suggests17 that if public international law is to accommodate and implement the goals of sustainable development in resolving conflicts or reinforcing mutual interests, it has to evolve to meet the constantly changing realities engendered by the structure of global society, the growing predominance of transnational business entities, and the increased intervention of non-state actors in domestic and international relations.18
It is submitted that human rights, which is a product of international law, and development, can be harnessed into domestic norms for better national development. In a report by the UN High Commissioner for Human Rights on the topic of human rights, trade and investment, attention was drawn to the human rights implications of international and domestic investment regimes. The report challenges the common assertion that foreign investment can promote growth and development in all contexts and that an automatic correlation exists between increased investment and the enjoyment of human rights—particularly economic, social and cultural rights, and the right to development. In its critique, the report addresses the roles and legal obligations of individuals, governments19 and investors with respect to human rights and investment, as well as the impact of investment agreements, investment liberalization and privatization, on the promotion and enjoyment of human rights. The UN High Commissioner contends that foreign investment has the potential to assist overall social, economic and political development and advance the enjoyment of international human rights, but only if properly regulated. The report emphasizes that the ability of investment to serve as a positive force to promote the enjoyment of human rights depends significantly on the actions of the governments involved. Specifically, under international law, host governments must regulate investment and enter into investment-related agreements in a manner consistent with their international human rights obligations. Host governments must also maintain the flexibility to promote cultural diversity and to implement special measures to protect vulnerable, marginalized, disadvantaged or poor people, including the provision of social safety nets. Host governments must also ensure that their domestic and international investment laws include investor duties in addition to standard investor rights. Domestic and international agreements must contain provisions requiring investors to act in accordance with a host state‘s overall development goals and
16P Schwartz, Sustainable Development and Mining in Sierra Leone (2006) 50. cited in S F Puvimanasinghe, Foreign Investment, Human Rights And The Environment: A Perspective From South Asia On The Role Of Public International Law For Development (Leiden, Belgium: MartinusNijhoff Publishers, 2007). 17S F Puvimanasinghe,Foreign Investment, Human Rights And The Environment: A Perspective From South Asia On The Role Of Public International Law For Development (Leiden, Belgium: MartinusNijhoff Publishers, 2007). 18 S F Puvimanasinghe, op cit, pp. 48–9. 19 Amnesty International, Human Rights, Trade and Investment (London: Amnesty International, 2006) p. 34. Page | 4
AJLHR 3 (2) 2019 human rights obligations. The report points out that, where investment regimes are successful, the effects of investment on the enjoyment of human rights can change over time, leading to progressive improvements in times of prosperity but regression when investment flows decrease, particularly where states pursue policies of investment liberalization without also establishing appropriate social safety nets. Home and host states must realize, the report argues, that even when the effects of investment are positive, the benefits may be short-lived or unstable. Thus, states must regulate investment responsibly, in a sustainable manner that utilizes the resources generated by foreign investment for the long-term well-being of all segments of the population.
3. Human Rights Protection in Foreign Investment Agreements Investment agreements could address human rights concerns either by directly imposing obligations on investors or by referring to state duties. In practice very few, if any, investment agreements mention human rights or associated fields20. For instance, no explicit reference to human rights is found in the Model BITs of Germany (2008), France (2006), China (2003), India (2003), the United Kingdom (2005), or the United States (2004)21. The multilateral investment agreement for the Common Market for Eastern and Southern Africa (COMESA), adopted in 2007, lists minimum human rights standards relating to investment as a potential future agenda item for a meeting of ministers. In a similar vein, the EU‐Russia Partnership and Cooperation Agreement, which among other things envisages the establishment of a framework for the promotion of investment between the parties, loosely provides that the treaty parties ‗endeavour to cooperate on matters pertaining to the observance of the principles of democracy and human rights‘ by way of regular political dialogue.22 The writer did not come across any direct reference to human rights protection in any foreign investment or related agreement in Nigeria but international standards have often been applied to hold certain investors liable to the observance of those rights in their operations. A clear instance is the case of the oil companies and the people of the Niger Delta area in Nigeria especially with regard to oil pollution and spillage and gas flaring. To an extent, this dearth of express references is a corollary of the one‐sided design of investment agreements that does not address investor obligations. The absence of overt human rights responsibilities of states is rooted in the fact that these agreements are monothematic commercial instruments. Nevertheless, modern investment protection and international human rights law share a common heritage. Both address the same troubling asymmetry, namely the impotence of the individual vis‐à‐vis state power23. Indeed, the
20OECD, ʹInternational Investment Agreements: A Survey of Environmental, Labour and Anti‐Corruption Issuesʹ (2008) (reviewing a sample of 296 agreements signed by 30 OECD member countries and 9 non‐member countries that adhere to the OECD Declaration on International Investment and Multinational Enterprises). Cited in M Jacob, “International Investment Agreements and Human Rights‖, INEF Research Paper Series, Human Rights, Corporate Responsibility And Sustainable Development, (Duisburg: Institute for Development and Peace, 2010) p. 13. 21C Reiner & C Schreuer, ʹHuman Rights and International Investment Arbitrationʹ in P‐M Dupuy, F Francioni& E‐U Petersmann (eds), Human Rights in International Investment Law (Oxford: Oxford University Press, 2009) 82 (further noting the lack of mention thereof in NAFTA and ECT). For Model BIT texts see the Annexes of Dolzer and Schreuer or the UNCTAD website on international investment agreements (―IIA Compendium‖):
OZIOKO & ORAEGBUNAM: Foreign Investment, Human Rights and National Development: A Jurisprudential Approach rights of aliens are in many ways precursors of modern human rights.24 The clearest remnants of this overlap are those provisions of human rights conventions protecting property25. However, the systemic difference – and thus the cause of the wildly different perception of these two fields of law – is that most contemporary investors are juridical persons possessing financial and political leverage easily dwarfing that of ordinary individuals and in some cases even rivaling that of states. On the other hand, as one scholar has pointed out, all states possess the inherent power to regulate within their jurisdiction, putting even the largest investors at risk.26
Certain societal issues such as labour standards, environmental protection, anti‐corruption and the economic empowerment of historically disadvantaged groups, i.e. individuals belonging to traditionally underprivileged sectors of society, are occasionally mentioned in investment agreements.27 This is sometimes done by preambular language, positing, for instance that ‗the development of economic and business ties can promote respect for internationally recognized labour rights‘ and that the objectives of the agreements ‗can be achieved without relaxing health, safety and environmental measures of general application‘. Besides the preamble, similar wording can occasionally be found in actual treaty provisions. For instance, an agreement can acknowledge that it is ‗inappropriate‘ to encourage investment by weakening or reducing the protections afforded in domestic environmental or labour laws and that, ‗each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces the protections afforded in those laws as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.‘28
Straight reference to human rights provisions in foreign investment agreements are not popular yet in a broad sense, the law of international investment, like much of public international law, is designed to limit certain types of state action. Sometimes, however, such state action is based on legitimate human rights concerns. The paucity of reported cases to date involving clear invocations of human rights is attributable to various factors. Investors are often adequately protected by the agreements themselves, which impose no obligations on them. Host states cannot request arbitration independently since this is also a preserve of investors. Also, limiting concepts such as jurisdiction and applicable law can provide further obstacles. Furthermore, states might be complicit in a human rights violation or fear setting an inconvenient precedent through their commitment to human rights arguments.
24PM Dupuy, ʹUnification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Lawʹ Ibid. 25E.g. Universal Declaration of Human Rights 1948 Art.17.2; European Convention on Human Rights, First Protocol, Art.1; American Convention on Human. 26M Jacob, op cit. 27OECD 143, Table 3.1; L Liberti, ʹInvestissementet Droits de lʹHommeʹ in P Kahn and W Ben Hamida (eds), Les Aspects Nouveaux du Droit des Investissements Internationaux(Nijhoff, 2007) 791‐852. 28The most prominent examples are the BITs concluded by the United States or Canada following NAFTA.
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4. Foreign Investment and Socio-Economic Development This section considers the impact of FDI on socio-economic development of a country; such as as domestic savings, foreign exchange earnings, national gross investment, government budget, technology transfer, industrialisation processes and poverty alleviation in developing countries like Nigeria. Economic development is an all-encompassing concept. It centers on economic and social progress, but also entails many different aspects that are not easily quantified, such as political freedom, social justice, and environmental soundness. Without a doubt, all these matters combine to contribute to an overall high standard of living. However, empirical evidence has amply demonstrated that all these varied elements of economic development correlate with economic growth. That is, as a general rule, countries with faster economic growth have more rapid improvement in health and education outcomes, progressively freer political system, increasingly more equitable distribution of wealth, and enhanced capacity for environmental management. Therefore, while economic growth does not bring about automatically other aspects of social, institutional and environmental improvements, without economic growth, there are limited prospects for such achievements. This section of the paper aims to highlight the most important channels through which FDI makes a significant and irreplaceable impact on the economic development of the host countries.
There are two arguments on the impact of FDI on the socio-economic development of a country: the mainstream and the radical views. The mainstream view argues that FDI flows to developing countries and creates benefits to both developed and developing countries. The mainstream view's arguments on the useful role of FDI in promoting socio-economic development have built on the gaps model and the Harrod-Domar model. The mainstream view has argued that developing countries on the way to take-off are likely to face three constraints, namely the savings-investment gap, the foreign exchange gap and the fiscal gap. Besides these gaps, skill constraints are likely to remain during the development process29.In contrast, the radical view argues that FDI flows are harmful to socio-economic development in developing countries30 This critique is based on the argument that the relationship between developed countries and developing countries is a ‗metropolis-satellite relationship‘ in which developed countries maintain a monopoly over the developing countries and that relationships of dominance and surplus extraction between metropolis and satellite serve both to channel surplus to the developed countries and to sustain underdevelopment31FDI has shown its ability to contribute significantly to all three components of growth: FDI increases capital stock, boosts human capital accumulation (though usually unmeasured in labor stock), and speeds up technological advances in host countries. Nevertheless, the most direct impacts of FDI on host economies are through its role in the accumulation of investment32For a country like Nigeria that is keen on FDI inflow, it is important to develop a robust
29(Chenery and Strout 1966; Chenery and Cater 1973; Papanek 1973; Dowling and Hiemenz 1983; Cassen 1986; Mosley 1987; Bacha 1990; White 1992, 1998), as cited in , Pham Hoang Mal , ―The Role Of Foreign Direct Investment In Socio- Economic Development‖, A Case Study Of Vietnam During The Transition Period A thesis submitted in fulfillment of the requirements for the degree of Doctor of Philosophy at Massey University, Turitea Campus, Palmerston North New Zealand , -2001. Available at https://mro.massey.ac.nz/bitstream/handle/10179/2140/02_whole.pdfAccessed on 16/8/17. 30countries (Baran 1957, pp. 177, 325; Frank 1966 and 1969; Cardoso 1972, pp. 91-92; Amin 1977, pp. 172- 173;Helleiner 1989, pp. 1453-1454). Cited by Pham Hoang Mai, Op cit. 31(Brewer 1980, pp. 159-167, p.971).citedIbid. 32Xiaolun Sun, ―Foreign Direct Investment and Economic Development What Do the States Need To Do?, prepared for the Foreign Investment Advisory Service for the Capacity Development Workshops and Global Forum on Reinventing Page | 7
OZIOKO & ORAEGBUNAM: Foreign Investment, Human Rights and National Development: A Jurisprudential Approach framework for measuring and analysing the developmental impact of FDI on its economy and citizens. This is particularly relevant given the huge gap between the country‗s high economic growth and low performance in the areas of employment, poverty reduction, and human development, among others. Nigeria can benefit from FDI in its socio-economic existence in the areas of poverty, inequality and unemployment reduction as well as enhance its favourable impact on gender, education, skill and technological transfer, and environment and tax revenue33.
Employment FDI has the potential to generate employment both directly, those employed by the FDI Company, and indirectly, those working in its servicing companies. It has also been found that when citizens of the host country are found in management positions, there is greater diffusion of skills which improves the quality of labour. In addition, local workers gain from in-creased employment if the adopted technology is labour-intensive as opposed to capital-intensive technology that requires fewer workers.
Labour Compensation Multinational corporations (MNCs) may use higher pay to attract highly-skilled local workers and ensure quality and productivity, given the higher cost of monitoring from abroad. Better incentives may also be used to reduce staff turnover and minimize the risk of their productivity advantage spilling over to competing firms. Therefore, FDI has the potential to increase the average wage in the recipient firm and thereby reduce poverty. Conversely, evidence exists that in some countries where FDI generates employment, it may be to the benefit of the more educated, wealthy elites and urban citizens. There are also accusations that MNCs employ unfair competition when taking ad- vantage of low wages and labor standards in the host country and sometimes violate human and labor rights, especially in developing countries where governments fail to enforce such rights effectively.
Gender FDI has been found to improve the socio-economic status of women. This affects the general society as women‗s earnings are mostly expended on improving the health and nutritional well- beings of their children.
Environment It is possible for FDI to reduce environmental problems, thereby contributing to sustainable development in the host country. This often results from the accessibility of MNCs to modern and environmental-friendly technology. The immediate host community of FDI projects can also benefit from some corporate social responsibility activities of the MNCs.However, sizeable FDI is found in extractive industries and this has significant environmental impact. It has therefore been shown that
Government on Globalization, Role of the State and Enabling Environment and Sponsored by the United Nations Marrakech, Morocco . Available at https://pdfs.semanticscholar.org/f68d/000c399db57f3958a052705ccf6c09c9d053.pdfAccessed16/8/17. 33―Socio-economic Impact of Foreign Direct Investment: Lessons for Nigeria‖,
AJLHR 3 (2) 2019 there is the likelihood for MNCs to relocate to countries where environmental regulations are lax or non-existent.
Backward Linkage with Local Firms Domestic firms may benefit immensely from FDI inflows. This often arises from their collaboration in the supply chain and through engagement in subcontracting arrangements with foreign-owned firms. They can also have access to knowledge transfer when they recruit workers with experience in foreign firms and through competition. Joint ownership is another avenue by which local firms benefit from FDI. However, FDI may also crowd out local firms. Therefore, the ex-tent to which local firms may benefit from FDI has been shown to be determined by their ability to enjoy a responsible business environments with technical and credit assistance.
Government Revenue It is expected that FDI will lead to an increase in tax revenue with which the government can improve on the socio-economic status of its citizens. For this to be possible, it is however important that the tax system in the host country be attractive. There must also be policies in place which ensure that the tax revenue is really collected and that such revenue is used to finance poverty alleviation programs.
The foregoing suggests that FDI inflow is desirable, thereby justifying Nigeria‗s efforts at attracting foreign capital. A major argument is that in addition to the mere quantitative macroeconomic impact, Nigeria needs to evaluate other developmental contributions of the type of FDI it is attracting. Evidence abounds that FDI has the potential to grow the economy of the host country. However, preferences should be accorded to FDI inflows that: (i) Generate employment: the more labour-intensive the better; (ii) Create an enabling environment for skill acquisition; (iii) Do not take advantage of poor, local labour law and enforcement to pay low wages and violate labour rights; (iv) Allow for the inclusion and growth of women and groups with special needs; (v) Adopt environmentally-friendly technology; (vi) Contribute to community development; (vii) Invest in non-extractive sectors; since a sector like oil has a significant environmental impact; (viii) Do not take undue advantage of poor, local environmental regulations; (ix) Are willing to employ local firms in the supply chain and joint ventures; (x) Do not stifle local competition; (xi) Foster responsible business environment with technical and credit assistance to local firms; and, (xii) Do not evade tax through transfer pricing and other illicit financial flow activities.
5. Foreign Investment and National Security The issue of foreign direct investment and national security, in most countries, has to do with the consideration of the security and interest of the local market while making foreign investment, and while allowing foreign firms to operate within the country. For instance, as a top destination for foreign investment, the United States seeks to strike a balance between national security and its
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OZIOKO & ORAEGBUNAM: Foreign Investment, Human Rights and National Development: A Jurisprudential Approach commitment to open markets.34 The United States is both the world‘s largest foreign direct investor and the largest beneficiary of foreign direct investment (FDI). But like every sovereign country, it has sought to temper its embrace of open markets with the protection of its national security interests. Achieving this balance, which has shifted over time, has meant placing certain limitations on overseas investment in strategically sensitive sectors of the U.S. economy35.For them, the challenge ahead is to reform the process in order to minimize the security risks raised by foreign investment without chilling future investment. More recently, leaders in Europe and the United States have raised concerns over growing investments by China‘s state-owned and state-backed enterprises. For Nigeria, the issue is seen from a different perspective, the negative effect to foreign investment, the loss of revenue from foreign direct investment due to insecurity. Kidnappings, killings, and corruption seem to be the political cum economic trinity bedeviling Nigeria today. The current state of insecurity and bombings especially in the Northern part of Nigeria has posed serious challenges to the peace and stability of Nigeria macroeconomic environment. The nation has not only suffered colossal loss in terms of infrastructure, properties and viable human lives but also economic sabotage which leads to the displacement of foreign direct investment36. Given the key role which foreign direct investment plays in most developing economies especially as a catalyst for economic growth, this is a major cause of concern.
Every investor desires the security of their investment, be it in human or material resources, which is why any good entrepreneur must assess the security situation wherever he wants to invest.37 Someone in Nigeria can manage and invest in the country probably because there is no other option, but that cannot be said about foreign investors with the level of insecurity in the country. Many international bodies have given Nigeria different ratings, all pointing to the fact that Nigeria is failing in many ways especially security wise; notwithstanding the much expenditure by the nation on security. Some have even gone ahead to predict a year of disintegration for the nation; and that is a cause for concern for any business man thinking of investing in the country.38Insecurity is costly not only that it stagnates the growth of Foreign Direct Investment, but the development of any country it is found. Insecurity leads to countries and companies withdrawing their investments from countries with such security challenges like in Nigeria. This happens because every investor aims at making profit, but when expenses grows higher than income, the investor losses; and this is the unavoidable outcomes of situations like the militancy that is rocking Nigeria. Insecurity can also influence the prices of stock making it unstable, which will make investors indecisive about investing.
The simple conclusion to the whole matter is that peace and tranquility is one basic need of the human species, and since business cannot run itself, it goes to say that business thrives where peace
34J Masters and J McBride, ‗Foreign Investment and US National Security‘
AJLHR 3 (2) 2019 is giving a chance. Nigeria has enjoyed its share of threats to national security just like other developing countries, and has as well done some lot in different ways through different political regimes. This impacts seriously on the economy as it affects even investment behavior both in the local and especially the foreign investors. 39The work of Essienet al found as follows:Firstly, that the trend and nature of the threat to national security has affected the trend of Foreign Direct Investment in the country, showing a relationship between national security and FDI.Secondly, the level and nature of the threat to national security determines the level and trend of FDI in the country. Thirdly, and of course obviously, a solution to the national security challenges will result to a change in the nature and trend of FDI in the country.They recommended that other determining factors of FDI such as diversifying the economy into other sectors other than the oil sector; price moderation through the subsidization of industrial inputs so as to reduce cost of production; improvement of the power sector for steady power supply should be seriously addressed.They identified corruption as a major issue that has been drawing down the country‘s development process. It was identified as one of the reason the youths do not have jobs, why contracts are not executed as required, why the education sector has fallen in standard etcetera. In their work, Oriakhi and Osemwengie40 investigated the impact of National security on foreign direct investment in Nigeria and found that because FDI is an important source of savings for developing countries and, thus, an engine of growth, the interplay between insecurity and FDI is of paramount concern. They recommended that government at all levels and key actors in policy formulation should adopt strong policy measures by devising more holistic approach to tackling the state of insecurity by entrenching the culture of transparency such that funds allocated to the sector (security) are effectively utilize for equipping the security system to meet 21st century standard. They recommended that government should seek technical assistance in the area of intelligence from advanced countries and finally, proactive measures should be adopted especially in tackling insecurity brought about by natural occurrences.
6. Foreign Investment and Civil and Political Rights Democratic countries are characterized by high civil and political liberties. Even though democracy is a more complex issue, one can claim that the respect and indulgence of the civil and political rights of the citizens are its most important aspects. Recognition of civil and political rights involve the rights to a decent life, and rights to participate meaningfully in the political process; and be a beneficiary of the dividends of democracy. In a democracy, this means the right of all adults to vote and compete for public office, and for elected representatives to have a decisive vote on public policies‘41 Conversely, civil liberties ideals involve a series of various economic, political and civil liberties enjoyed by the citizens of the country, such as freedom of expression and belief, association and organization rights, rule of law and personal autonomy. In the words of Gastil‗Civil liberties are rights to free expression, to organize or demonstrate, as well as rights to a degree of autonomy such as is provided by freedom of religion, education, travel, and other personal rights‘42.Even though higher civil and political liberties imply better democratic institutions, it does
39Ibid. 40Dickson Oriakhi and Presley Osemwengie, ‗The Impact of National Security on Foreign Direct Investment in Nigeria: An Empirical Analysis‘ (2012) Journal of Economics and Sustainable Development , Vol.3, No.13. 41Gastil 1882, as cited in A Adam & F Filippaios, ‗Foreign Direct Investment and Civil Liberties: A New Perspective‘,
OZIOKO & ORAEGBUNAM: Foreign Investment, Human Rights and National Development: A Jurisprudential Approach not always translate to higher FDI. On the contrary, there have been insinuations that FDI may be lower in such situations. According to Adam and Filippaios, there is no reason to expect that these two liberties affect investment motives. Civil liberties refer to the workplace environment and the organization rights of the workers and to various economic rights. In contrast, political liberties refer to the decision-making process in the country and the way the government chooses which policies to implement.
Several studies have examined the impact of political and civil liberties on multinationals‘ motives and decisions and vice versa. Greider43 and Meyer44 draw similar conclusions, with the first one suggesting that FDI does not have a liberalising effect in autocratic countries and the second one going a step further and supporting that multinational enterprises (MNEs) are actually not only ‗robbing‘ developing nations of their economic sovereignty but also support repressive regimes. However, Harms and Ursprung45 do not find support for the argument that MNEs show a preference for undemocratic regimes. Instead they propose that more individual freedom attracts FDI. There is also a tendency that MNEs, under the pressure of non-governmental organisations and the shift of FDI from primary sector to manufacturing and service activities, to change their investment behaviour towards countries that broaden the protection of political liberties. In their paper, Adams and Filippainos assumed that high repression of civil liberties is expected to exert a negative effect on the productivity of the workforce. In such an environment workers are not accustomed to taking initiatives, cannot co-operate effectively, and have lower incentives to be productive. This implies lower returns to foreign investments. In this case an increase in economic rights and civil liberties may stimulate the working of the free market, providing better outcomes for productivity and growth.
However, as civil liberties rise, the productivity of the workforce increases, but at the same time adverse powers may come into play. Labour unions and special interest groups begin to form and gain power increasing their ability to extract rents from the Multinational Enterprises (MNEs). According to their research, Political liberties‘ repression effect to FDI comes through a different channel. For instance, elections act as a disciplining device for the policymaker. When elections are free and fair, voters will punish the officeholders that deliver ‗bad‘ economic outcomes. This will induce the officeholder to provide sound economic policies. In support of the above argument, it has been arguee46 that non-democratic autocratic rulers have a shorter time horizon since policy changes, e.g. due to a violent revolution, are more frequent in non- democracies. The above suggest that in countries where political liberties are low – i.e. the electoral mechanism does not work efficiently – economic policies and outcomes are less efficient compared to policies in countries with high political liberties. Less efficient government policies have a negative effect on the returns of FDI, and therefore reduce the amount of FDI that a country receives.
43W Greider, One World, Ready or Not: The Manic Logic of Global Capitalism (New York: Touchstone, 1998). Cited in Adams and Filppainos.Ibid. 44W Meyer, Human Rights and International Political Economy in Third World Nations: Multinational Corporations, Foreign Aid and Repression (Westport: Praeger, 1998) cited in Adams and Filppainos. Ibid. 45P Harms, and HW Ursprung, ‗Do civil and political repression really boost foreign direct investments?‘Economic Inquiry 40, 651-663. Cited in Adams and Filppainos.Ibid. 46 Olson (1993) and McGuire and Olson (1996),as cited by Adams and Filippaios, Ibid. Page | 12
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However, after testing the empirical validity of their analysis with respect to the effects of civil and political liberties on FDI, from a normative point of view, the results presented appeared disturbing. As their results show, a particular type of FDI can be attracted from countries where the civil liberties are (slightly) repressed. Then developing countries may face a vicious dilemma: to choose between low economic well-being (low growth) and low political well-being (low civil liberties). They proposed a way out; FDI does not come necessarily under the form of efficiency-seeking activities. A country, therefore, may attract FDI by promoting the abilities and the knowledge of its local labour force. This process can only be accomplished with sound educational and other public policies and with a reasonable amount of civil and economic liberties. The final answer to the above dilemma may be policies in favour of democracy and towards attracting FDI that is motivated by such other factors other than efficiency reasons.
7. Foreign Investment and Economic, Social and Cultural Rights This section examines the relationship between economic rights and the inflow of foreign direct investment. Foreign investors care about economic freedoms, rather than political freedoms, in making decisions about where to locate capital. Hence more democratic countries may receive less Foreign Direct Investment (FDI) flows if economic freedoms are not guaranteed. One reason could be that democratizing developing economies are often unable to push through the kind of economic reforms that investors desire due to the presence of competing political interests. This could potentially explain why countries like China and Singapore that rank poorly on the democracy index but are relatively high on the property rights index do well in terms of FDI inflows47.In the light of the foregoing therefore, the need to attract FDI is imperative particularly given its importance and role in the growth process of developing economies. These consequently advance why so much effort has tirelessly been geared mostly by developing nations towards its attraction.48 Thus, it is being argued that countries that enjoy economic prosperity or grow faster are those in which the individuals and groups enjoy economic freedom. Moreover, freer economies are supposed to attract more investment.49
In another study50, on the impact of foreign direct investment on Nigeria‘s economic growth over the period of 1999 – 2013, the findings revealed that economic growth is directly related to inflow of foreign direct investment and statistically significant at 5% level. This implies that a good performance of the economy is a positive signal for inflow of foreign direct investment. It can be concluded that foreign direct investment is an engine of economic growth. Therefore, there is need to have a stable political and economic environment and improve on the critical infrastructure level of security at all levels in the country. Systems of governance should be based on accountability, transparency, effective and efficient resource. Furthermore, government needs to liberalize the foreign sector in Nigeria so that all barriers to trade such as arbitrary tariffs; import and export
47A Mathur&K Singh, ‗Foreign direct investment, corruption and democracy‘, (2013) Applied Economics, vol. 45, issue 8, 991-1002:
OZIOKO & ORAEGBUNAM: Foreign Investment, Human Rights and National Development: A Jurisprudential Approach duties and other levies should be reduced so as to encourage investors. Another study examined the effect of foreign direct investment on economic growth in Nigeria from the period 1981 to 2015 and found that foreign direct investment has a positive and significant effect on gross domestic product. It was also found that exchange rate has a positive but not significant effect on gross domestic product. Thus, the study concluded that foreign direct investment has a positive effect on economic growth in Nigeria as opposed to the findings and belief of some researchers and other stakeholders that foreign direct investment has a negative effect on the growth of the economy. It was recommended that government should improve the state of infrastructures in the country in order to encourage meaningful investments in the economy. Also, the Central Bank of Nigeria should come- up with policies that will help to stabilize the Naira exchange rate vis-à-vis the major currencies of the world, like the United States Dollar. This will boost the investors‘ confidence in the economy.51
8. Conclusion Respect for and protection of human rights constitutes a demand before the desired national development through foreign investment. The task of finding a proper link through the three variables of human rights, foreign investment and national development is the major objective of this study. The work found that in devising policies to encourage investment and to increase the flow of the benefit to the host country, a developing country‘s overall human rights profile is of crucial importance. A country‘s human rights laws and enforcement are much more important in attracting foreign investment than are special incentives which are costly and frequently ineffectual. Hence, the level of inclination of foreigners to invest in an economy depends on the level of security of investment and of themselves which they perceive exists in such an economy as guaranteed by the relevant legal regime and level of enforcement. This is because an investor whose security is insecure in the host State is usually wary of the variables that necessarily affect his life and dignity and such investment. It is in the light of the foregoing that the significance of this study cannot be overemphasized. The study has both theoretical and practical significance. Theoretically, the study adds to knowledge especially as it relates to the legal regime for foreign investment and its implications on the economic and social life of the people. Practically, it has suggested a practical approach to the much sung mantra for foreign investment especially in developing countries.
51EI John, ‗Effect of Foreign Direct Investment on Economic Growth in Nigeria‘ (2016) European Business & Management, Volume 2, Issue 2, 40-46.
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HUMAN RIGHTS AND HUMANITARIAN COST OF THE SYRIAN WAR* Abstract This paper discusses the humanitarian and human rights cost of the Syrian war. The armed conflict in Syria erupted in March 2011 in the southern city of Deraa after the arrest and torture of some teenagers who painted revolutionary slogans on a school wall. Also, the unrest which grew out of discontent with the Assad government, escalated to an armed conflict after protests calling for his removal were violently suppressed. War crimes have been a consistent feature of the Syrian conflict since its inception. In addition to war crimes, the Syrian people have experienced other crimes under international criminal law, including crimes against humanity, summary execution, terrorism, and genocide against ethno- religious minorities. Thousands of Syrians have disappeared without a trace, many of them victims of enforced disappearances. The emergence of the ISIS on the scene introduced a new set of ruthless perpetrators who have brought the violence to an even more alarming level of brutality. This work seeks to determine the international humanitarian laws and human rights laws applicable to this conflict together with other laws that may be relevant for the prosecution of violations occurring in the Syrian war.
Keywords: Human Rights, Humanitarian Cost, War, Syria
1. Introduction Since 2011, there has been an armed conflict in Syria. The Syrian armed conflict is a non-international armed conflict. It is being fought primarily by the Syrian Government and the forces opposing the government in Syria. The main belligerents in the armed conflict includes; the Syrian Arab Republic, the Syrian opposition, the Islamic State of Iraq and Syria1, with a number of countries in the region and beyond either directly involved, or rendering support to one or another faction.2There have been serious breaches of international humanitarian law3and international human rights law4by parties to the armed conflict. War crimes have been a consistent feature of the Syrian conflict since its inception. In addition to war crimes, the Syrian people have experienced other crimes under international criminal law, including crimes against humanity, summary execution, terrorism, and genocide against ethno-religious minorities.5Thousands of Syrians have disappeared without a trace, many of them victims of enforced disappearances.6 The emergence of the ISIS on the scene introduced a new set of ruthless perpetrators who have brought the violence to an even more alarming level of brutality. ISIS is also known as Levant/Daesh. It is a militant organization that has committed war crimes, crimes against humanity and crimes against foreign citizens in its pursuit of creating a caliphate. In the lands controlled by ISIS, the agents of ISIS have brutally murdered Christians and other religious minorities who have refused to
* Maria Omozele EDEKO, LLB, (Benin), BL, MPA, (BENIN), BEd, (Arts) FRENCH (Benin); Lecturer, Department of Public Law, Faculty of Law, Benson Idahosa University, Benin City, email: [email protected] 1Hereinafter referred to as the Islamic State of Iraq and Syria. 2BBC, „Guide to the Syrian Rebels‟, http://www.bbc.com/news/worldmiddle-east-24403003 (Accessed 13 May, 2019). 3Hereinafter referred to as IHL. 4Hereinafter referred to as IHRL. 5ISIS have brutally targeted and attacked the Yazidis. A historically misunderstood group, the Yazidis are predominantly ethnically Kurdish, and have kept alive their syncretic religion for centuries, despite many years of oppression and threatened extermination. The Yazidis had been denounced as infidels by Al-Qaida in Iraq, a predecessor of ISIS, which sanctioned their indiscriminate killing. Jalabi, R., „Who are the Yazidis and why is ISIS hunting them?‟https://www.theguardian.com/world/2014/aug/07/who-yazidi-iis-iraq-religion-ethnicity-mountains.(Accessed 4 April, 2019). 6 ibid Page | 15 EDEKO: Human Rights and Humanitarian Cost of the Syrian War convert to ISIS‟s belief.7ISIS has brutally raped and trafficked hundreds of Iraqi and Syrian women and children and has targeted Syrian minorities because of the victims‟ religious affiliations or ethnic backgrounds.8 These extreme levels of violence, coupled with the lack of any apparent progress until very recently towards finding a political resolution to the conflict have generated a massive refugee crises in the region and beyond.9This work seeks to determine the international humanitarian laws and human rights laws applicable to this conflict together with other laws that may be relevant for the prosecution of violations occurring in the Syrian war.
2. Background of the Study The Syrian civil war is an on-going multi-sided armed conflict in Syria fought primarily between the government of President Bashar al Assad, along with its allies, and various forces opposing the government.. The unrest in Syria grew out of discontent with the Assad government and escalated to an armed conflict after protests calling for his removal were violently suppressed Pro-democracy protests erupted in March 2011 in the southern city of Deraa after the arrest and torture of some teenagers who painted revolutionary slogans on a school wall.10After security forces opened fire on demonstrators, killing several, more took to the streets. The unrest triggered nationwide protests demanding President Assad's resignation11.The government's use of force to crush the dissent merely hardened the protesters' resolve. By July 2011, hundreds of thousands were taking to the streets across the country. Opposition supporters eventually began to take up arms, first to defend themselves and later to expel security forces from their local areas.12Violence escalated and the country descended into civil war as rebel brigades were formed to battle government forces for control of cities, towns and the countryside.13Fighting reached the capital Damascus and second city of Aleppo in 2012. By June 2013, the United Nations14said 90,000 people had been killed in the conflict. By August 2015, that figure had climbed to 250,000, according to activists and the UN.15The Syrian Observatory for Human Rights (SOHR), a monitoring group based in the UK, in March, 2018 estimated the death toll since the start of the war to be as high as 511,000.16 United Nations High Commissioner for Refugees (UNHCR) further reported that years of relentless fighting left 6.6 million displaced internally and 5.6 million around the world.17 The on-going violence against civilians has been condemned by the Arab League, the European Union, the United States and other countries. As of March 2019, roughly 5.7 million Syrians have fled the country, according to the UN High Commissioner for Refugees, and more than 6.1 million people are displaced internally. 18
7B. Ghosh, „ISIS: A Short History‟https://www.theatlantic.com/international/archive/2014/08/isis-a-short-history/376030/. (Accessed 28 April 2019) 8 ibid 9 ibid 10BBC, „The story of the conflict‟https://www.bbc.co.uk/news/world-middle-east-26116869(Accessed 28 April 2019). 11 Ibid. 12 Ibid. 13 Ibid. 14Hereinafter referred to as the UN. 15 BBC, Supra note 10 16Human rights watch „World Report 2019: Syria | Human Rights Watchhttps://www.hrw.org/world-report/2019/country- chapters/syria (Accessed 19th May, 2019) Human rights watch „World Report 2019: Syria | Human Rights Watchhttps://www.hrw.org/world-report/2019/country-chapters/syria (Accessed 19th May, 2019) 17Human rights watch „World Report 2019: Syria | Human Rights Watchhttps://www.hrw.org/world-report/2019/country- chapters/syria (Accessed 19th May, 2019) 18CNN, „Syrian Civil War Fast Facts‟https://edition.cnn.com/2013/08/27/world/meast/syria-civil-war-fast-facts/index.html (Accessed 19th May, 2019) Page | 16
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The most serious crimes of concern to the international community as whole namely; war crimes, crimes against humanity and genocide have all featured in the non- international armed conflict in Syria. The emergence of ISIS has also increased the brutality in this conflict. This group has committed both war crimes, crimes against humanity and human rights violations. There is also a claim of genocide being committed by ISIS. On February 3, 2016, the European Union recognized the persecution of Christians by ISIS as genocide, the vote was unanimous, the United States followed suit on March 15, 2016 declaring these actions as genocide. ISIS has shown no respect for the laws of war. The horror of Syria war is in the millions of pictures that are too gruesome to circulate- charred limbs stacked outside hospital wards, bloated bodies rotting in sniper alleys, a toddler plucked from the rubble without a head. We hope that the international community will be able to device means to hold perpetrators of these crimes in the Syria war accountable.
3. History of Syria/ Armed Conflict in Syria Syria is a country located on the east coast of the Mediterranean Sea in south-western Asia. The capital is Damascus. After Syria gained its independence in 1946, political life in the country was highly unstable, owing in large measure to intense friction between the country‟s social religious and political groups.19 In 1970, Syria came under the authoritarian rule of President Hafiz al-Assad, whose foremost goals included achieving national security and domestic stability and recovering the Syrian territory lost to Israel in 1967.20 Assad committed his country to a massive arms build-up, which put severe strains on the national budget, leaving little for development.21For years Syrians hoped that the Assads, the ruling, family would bring stability and freedom after the troubled 1950s and 1960s, during which a series of coup d‟états pushed the country into uncertainty and military conflict.22 In 1973, just three years after Hafez al-Assad seized power, he joined with Egyptian President Anwar al-Sadat in a new major war against Israel.23 The Soviet Union supplied Egypt and Syria with arms, while the United States of America backed Israel. The disastrous war damaged relations throughout the Middle East and achieved little for Syria.24Subsequently, the Assad regime maintained its hold on power through the usual measures employed by a dictatorship.25 The regime engaged in corruption, the regime silenced opponents and critics, prevented free speech and denied political expression. That created an atmosphere of fear and resentment for the regime.26
When Hafez al-Assad died in 2000, his second son, Bashar, an ophthalmologist living in London, inherited the presidency.27 The people hoped that a young President, who studied in the West and who married an intelligent Syrian-British woman, could change the situation which his father had created.28 Many people were optimistic and saw Bashar as a reformer. Indeed, Bashar al-Assad began to restore proper international trade and he started to reform the country, but everything quickly slipped back to the corrupt ways.29 Bashar ultimately continued his father‟s authoritarian style of government, using Syria‟s
19V. E. Irvine, „Syria‟, https://www.britannica.com/place/syria . (Accessed 4 February 2019). 20 ibid 21 ibid 22R. N. Nassar, „What caused Syria‟s civil war?‟http://www.worldwatchmonitor.org/2013/08/what-caused-syrias-civil- war/ .(Accessed 4 February 2019) 23Ibid. The Six-day war also known as the June war, 1967 Arab-Israeli war, or the third Arab-Israeli war, was fought between June 5 and June 10, 1967 by Israel and the neighbouring states of Egypt, Jordan and Syria. 24ibid 25ibid 26 ibid 27ibid 28ibid 29ibid Page | 17 EDEKO: Human Rights and Humanitarian Cost of the Syrian War powerful military and security services to quash political dissent.30 Long suppressed tensions led to the outbreak of the Syrian civil war.31Starting in March 2011, the Syrian government began deploying deadly force against peaceful protesters demanding a range of reforms, including enhanced political freedoms, an end to custodial abuses, and the repeal of abusive emergency laws.32 The violence remained asymmetrical, however, until early summer when an organized armed opposition, made up of Syrian army defectors and rebels drawn from the civilian ranks, began to merge and engage government forces.33 The Free Syrian Army, which announced itself in July 2011, created a Supreme Joint Military Command of the Syrian Revolution in December 2012 in an effort to unify and coordinate the operations of the various insurgent armed groups on the ground and to improve communications with the emerging political opposition.34 The Free Syrian Army has also gained control of territories in Syria.35
Given these developments, the International Committee of the Red Cross36 seemed to assume the existence of an armed conflict in May 2012, without identifying a start date, and publicly confirmed the conflict‟s inception in an operational update in July 2012.37 The Independent International Commission of Inquiry on the Syrian Arab Republic38, convened by the United Nations Human Rights Council, evaluated the situation in Syria. It noted in its first report in November 2011, that the violence “risked rising to the level of an „internal armed conflict,” but it was unable to verify the level of intensity of combat or the level of organization of armed groups.39 By the time of its third report released in August 2012, the COI concluded that the intensity and duration of the conflict, combined with the increased organizational capabilities of anti-Government armed groups, had met the legal threshold for a non- international armed conflict. With this determination, the commission applied international humanitarian law in its assessment of the actions of the parties during hostilities. The COI went on to say that the IHL threshold was crossed, in its estimation, as early as February 2012.40The report by COI constitutes a valuable source of evidence as to the existence of an armed conflict.
4. War Crimes in Syria In Syria, civilians have been targeted. There have been deliberate, indiscriminate, and disproportionate attacks on civilians by the parties to the armed conflict in the Syria war. As the Syrian civil war goes on, the list of war crimes committed by the combatants continues to grow, including the destruction of hospitals and the use of chemical weapons.41
30Irvine, Supra note 19. 31 ibid 32B. V. Schaack, „Mapping War Crimes‟, International Law. Studies, (2016), Vol. 92, pp. 5 – 7. 33ibid 34J. Holliday, „Syria‟s Armed Opposition‟, http://www.understandingwar.org/sites/default/files/Syrias_Armed_Opposition.pdf (Accessed 13 April 2019). 35 ibid 36Hereinafter referred to as ICRC. 37 ICRC, „Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort amid Increased Fighting‟, https://www.icrc.org/eng/resources/documents /update/2012/syria-update-2012-07-17.htm (Accessed 13 April 2019). 38 Hereinafter referred to as COI 39 Supra note 22 40 Human Rights Council, „Report of the Independent International Commission of Inquiry on the Syrian Arab Republic‟, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21- 50_en.pdf (Accessed 13 April 2019). 41P. G. Johnston, „Many War Crimes in Syria‟, Owen Sound Sun Times, April 29, 2017. Page | 18
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Unconventional & Improvised Weapons & Weapons Systems Some weapons and weapons systems in use in Syria are inherently unlawful and indiscriminate; others are being used in ways that cannot possibly discriminate between civilian and military objects and objectives; still others cause unnecessary suffering and superfluous injury.42 There is little precedent for the prosecution of weapons crimes, as such the conflict in Syria has the potential to develop jurisprudence in this area.
Barrel Bombs The Assad regime has improvised containers filled with bulk explosives, incendiaries, and fragmentation media, and that they drop from helicopters and other aircraft.
Cluster Munitions In Syria, hundreds of civilians have been killed by cluster munitions. Cluster munitions have been air- dropped and ground-launched by Syrian forces (since mid-2012) and by ISIS (since late 2014) in multiple opposition controlled locations around Syria.43 Cluster munitions are weapons that eject a payload of sub-munitions (bomb lets or other fragmentation elements) from a dispenser upon contact or at a pre-set altitude. Cluster munitions are intended for use in wide-area targeting, and may be deployed against moving “soft” targets (enemy personnel and civilians) or to destroy runways, scatter landmines, penetrate armour, start fires, or deliver chemical weapons.44 Because cluster bombs release many small bomb lets over a wide area, they pose risks to civilians both during attacks and afterwards. Unexploded bomb lets can kill or maim civilians long after a conflict has ended, and are costly to locate and remove.45
Incendiary Weapons The COI and human rights groups have also recorded the use of air-dropped Incendiary weapons, including so-called vacuum bombs or fuel-air explosives.46 The use of such weapons in Syria has been universally condemned. Incendiary weapons means any weapon or munitions which is primarily designed to set fire to objects or to cause burn to persons through the action of flame, heat or combination thereof, produced by chemical reaction of a substance delivered or targeted.47
Chemical Weapons The U.N. Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, the World Health Organization, and the COI, plus investigative reporting and citizen journalism have confirmed the use of chemical weapon in the Syria armed conflict.48 In August 2016, a report by the United Nations and the Organisation for the Prohibition of Chemical Weapons explicitly blamed the Syrian Government for dropping chemical weapons (chlorine bombs) on the towns of
42S. Maayeh&P. Sands, „From Dumb Bombs to Precision Weapons, Assad Regime Ramps up Airstrikes on Rebels‟, http://www.thenational.ae/world/middleeast/from-dumb-bombs-to-precision-weapons-assad-regime-ramps-up- airstrikes-on-rebels (Accessed 15 April 2019). 43 Human Rights Watch, „Technical Briefing Note: Use of Cluster Munitions in Syria‟,https://www.hrw.org/sites/default/files/supporting_resources/syria_ briefingnotecm_4apr2014.pdf (Accessed 15 May 2019). 44Schaack, Supra note 32. 45 ibid 46 ibid 47 ibid 48R. Gladstone, „Syria used chlorine in Bombs against Civilians‟, https://www.nytimes.com/2016/08/25world/middleeast/syria-used-chlorine-in-bombs-against-civilians-report- says.html?refere= (Accessed 8 February 2019). Page | 19 EDEKO: Human Rights and Humanitarian Cost of the Syrian War
Talmenes in April 2014 and Sarmin in March 2015 and ISIS for using sulfur mustard on the town of Marea in August 2015.49 Civilians have died as a result of the use of chemical weapons in Syria.50
The Legality of Siege Warfare Brutal sieges have been another feature of the war in Syria. Report has it that the city of Madaya, for example, has been under siege for months, its inhabitants reduced to eating grass.51 The Syrian government has arbitrarily and discriminatorily barred or limited the delivery of humanitarian aid to these populations.52 Siege warfare thus remains lawful under contemporary law in the narrowest of circumstances; so long as it is directed only at combatants and those directly participating in hostilities, civilians are allowed to leave an encircled area, and other provisions of the law of war are adhered to.53 The various sieges in place around Syria do not adhere to any of these restrictions, so those responsible are in breach of IHL.
The Starvation of Civilians Provisions of food have been arbitrarily barred and limited in the sieges in the Syrian war. Residents of a Syrian town (Madaya) are being forced to eat insects, plants and even cats due to the siege by the Assad regime.54 Also, the U.N. high commissioner for Human rights accused the Syrian government of denying food to hundreds of civilians besieged in Eastern Ghouta, on the outskirts of the Capital Damascus.55
Sexual violence Women in Syria are increasingly the targets of violent abuse and torture by government forces and armed groups. Evidence of the violence against women has been based on interviews with victims.56 In the Syrian civil war, rape has been used as a strategy throughout the conflict, by pro-government supporters, members of the Free Syrian Army and ISIS.57 There have been reports of rape and sexual assaults of women at detention facilities in Damascus, dating from 2012. The UN declared in 2012 that rape was being used as a weapon of war in Syria.58
Violations of Children’s Rights Children‟s rights are being violated on a massive scale. Children have been killed, injured abducted, arrested, tortured and maimed, suffering the direct consequences of the indiscriminate violence of Government forces.59 They have also been affected by displacement, loss of relatives and the trauma of
49 ibid 50 Gladstone, Supra note 48 51Schaack, Supra note 23 52ibid 53 ibid 54L. Pitel,„War in Syria: Up to 40,000 civilians are starving in besieged Madaya, say campaigners‟, https://www.independent.co.uk/news/world/middle-east/war-in-syria-up-to-40000-civilians-are-starving-in-besieged- madaya-say-campaigners-a6793386.html (Accessed 8 February 2019). 55L. Schlein,„Deliberate Starvation of Civilians in Syria could be a War Crime‟, https://www.voanews.com/a/deliberate-starvation-of-civilians-in-syria-could-be-war-crime/409005.html (Accessed 8 February 2019). 56A. Harvey,„UN Inaction and Rape as a Weapon of War in Syria‟, http://www.hhpronline.org/articles/2016/11/12/un-inaction-and-rape-as-a-weapon-of-war-in-syria (Accessed 17 April 2019). 57 ibid 58 ibid 59B. Larkin,„Violation of Children‟s Rights Syria: Analysis of the law‟, http://peaceandjustice.org.uk/newsletter/the- syrian-refugee-crisis/violation-of-childrens-rights-syria-analysis-of-the-law/ (Accessed 17 April, 2019). Page | 20
AJLHR 3 (2) 2019 witnessing acts of violence and denied basic services and education on a daily basis. In Aleppo, Damascus and Dara‟a, regular armed forces use schools for military purposes, depriving children of education and exposing educational facilities to attack.60In Syria, the government forces and non-state actors have recruited and used children in the hostilities.
Genocide The COI has determined that ISIS‟s violence against the Yazidis constitutes a case of genocide, defined by the Genocide Convention as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. ISIS had openly proclaimed, in its English language magazine, Dabiq, its intent to destroy the “pagan” Yazidi minority through killing, enslavement, and forced conversion.61 ISIS forces have committed genocide and other war crimes in the continuing effort to exterminate the Yazidi religious minority in Syria. Dozens of mass graves have been uncovered in areas recaptured from ISIS.62On the 4th of February 2016, the European parliament unanimously passed a resolution recognizing ISIS‟s violence against Christians, Yazidis and other religious minorities to be genocide.
5. Effects of Syrian War The war in Syria has resulted in extreme violence, much of it directly targeting civilians. Since the upheaval in Syria began, thousands of people have been killed and millions have fled their homes.63 Before the conflict began, Syria‟s population was about 22 million.64 With so many people affected, the crisis is the world‟s worst humanitarian emergency in decades.65Today, Syria produces more internally displaced people and refugees than any other country in the world, according to the UN.66A lot of families have suffered under the brutal conflict that has killed hundreds of thousands of people, torn the nation apart, and set back the standards of living.67 Today, about 13 million people in the country need humanitarian assistance.68 Healthcare centers and hospitals, schools, utilities, and water and sanitation systems are damaged or destroyed.69More than 5.6 million Syrians have fled the country as refugees, and 6.1 million are displaced within Syria as internally displaced people.70 The Syrian civil war has stolen the childhood of millions of children and affected their long-term physical and mental health and prospects for the future.71 Many children caught up in the crisis lost their family members and friends to violence, suffered physical and psychological trauma, and had to leave school.72
60ibid 61V. Cetorelli,„ISIS‟ Yazidi Genocide‟, http://www.foreignaffairs.com/articles/syria/2017-06-08/isis-yazidi- genocide (Accessed 30 April, 2019). 62N. Cumming,„ISIS Committed Genocide against Yazidis in Syria and Iraq, U.N. Panel says‟, http://www.nytimes.com/2016/06/17/world/middleeast/isis-genocide-yazidi-un.html?referer= (Accessed 30 April 2019. 63S. Stamm& T. Harness,„The devastating effects of the conflict in Syria‟, https://www.washingtonpost.com/news/worldviews/wp/2016/03/15/the-syrian-conflict-in-5- graphics/?utm_term=.9e11d17c0175&noredirect=on (Accessed 20 April, 2019). 64 ibid 65 ibid 66 ibid 67World Vision, „Syrian Refugee Crisis‟, https://www.worldvision.org/refugees-newstories/syrian-refugee-crisis-facts (Accessed 20 April 2019). 68ibid 69 ibid 70 ibid 71 ibid 72 ibid Page | 21 EDEKO: Human Rights and Humanitarian Cost of the Syrian War
6. Legal Framework Applicable to Syria Armed Conflict
International Legal Framework Applicable to Syria Armed Conflict International law imposes limits on the behaviour of the actors in the civil war in Syria. Even without specific treaty obligations imposed upon it, the Syrian government and non-state actors are bound to respect customary international law.73 In terms of their treaty obligations, it is useful to examine whether Syria has ratified specific instruments imposing concrete obligations. Syria has ratified the Geneva Conventions of 194974 and has also ratified the Genocide Convention of 1948.75 Syria has not ratified Additional protocol II which regulates non-international armed conflict.76 While the UDHR is binding on all States of the world being an authoritative interpretation of the UN Charter, customary international law and its jus cogenscharacter. It is perhaps surprising to observe that the Syrian Arab Republic is a party to many international human rights treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women,77 the Convention on the Elimination of all forms of Racial Discrimination,78 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,79 the International Covenant on Civil and Political Rights,80 the International Covenant on Economic, Social and Cultural Rights81and the Convention on the Rights of the Child.82 Sadly, it is clear that most of the human rights treaties ratified by Syria, in particular, have not been and are not being respected by the Syrian government, observing the human rights violations occasioned by the Syria armed conflict.
Geneva Conventions 1949 The Geneva Conventions and their additional protocols are at the core of IHL, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects.83 The Geneva Conventions entered into force on 21 October 1950.84 The Geneva conventions comprise of four treaties, and three additional protocols. The 1949 Geneva Conventions protect certain vulnerable classes of person such as civilians and prisoners of war but they also apply for the most part to international armed conflicts. Only common Article 3 of those treaties, which does not designate its list of prohibitions as crimes per se, governs non-international armed conflicts. Common Article 3 provides that In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:85 Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without
73L. N. Sadat,„Genocide in Syria: International Legal Options, International Legal Limits, and the Serious Problem of Political Will‟Legal Studies Research Paper Series, (2015), Vol. 5, No. 15-02-02, pp. 5 – 9. 74 ibid Syria ratified the 1949 Geneva Conventions in 1953. 75 ibid, Syria ratified the 1948 Genocide Convention in 1955. 76 ibid 77Hereinafter referred to as CEDAW. 78Hereinafter referred to as CERD. 79Hereinafter referred to as CAT. 80Hereinafter referred to as ICCPR. 81Hereinafter referred to as ICESCR. 82Hereinafter referred to as CRC. 83ICRC, „The Geneva Conventions of 1949 and their Additional protocols‟, https://www.icrc.org/eng/war-and- law/treaties-customary-law/geneva-conventions.htm (Accessed 26 March 2019). 84ibid 85Four Geneva Conventions 1949, Common Art. 3. Page | 22
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any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above- mentioned persons:
Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; Taking of hostages; Outrages upon personal dignity, in particular humiliating and degrading treatment; The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Convention on the Prevention and punishment of the crime of Genocide 1948 Syria is a party to the Genocide Convention. The Genocide Convention strictly prohibits genocide. In Syria, members of the Islamic state of Iraq and Syria have committed genocide against the Yazidis and other religious minorities. “Genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.86Under the Genocide Convention, the following acts shall be punishable:87Genocide;Conspiracy to commit genocide;Direct and public incitement to commit genocide;Attempt to commit genocide;Complicity in genocide.
Customary International Law Customary international law now penalizes many breaches of IHL. Customary international law is binding on all states. In the Syrian armed conflict, the principle of distinction have been violated and disregarded. Civilians and civilian objects have been targeted and attacked. Customary IHL provides that the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants.88 Attacks must not be directed against civilians. Customary IHL provides that acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.89 Attacks may only be directed against military objectives. The aforementioned rules are applicable to both international armed conflict and non-international armed conflict. Customary IHL treats violations of these rules as war crimes.90 In Prosecutor v. Milošević91 the ICTY found Dragomir Milošević guilty of “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” as prohibited by the laws and customs of war. Milošević was also charged with war crime of committing an unlawful attack against civilians. Unconventional weapons have been used by the warring parties in Syria. The use of weapons and other methods of warfare that cannot adhere to the principle of distinction92 or that are of a nature to cause superfluous injury or unnecessary suffering93 is prohibited by IHL. The ICRC includes the use of prohibited weapons
86Genocide Convention 1948, Art. 2. 87Genocide Convention 1948, Art. 3. 88 ICRC CIL Study, Rule 1. 89 ICRC CIL Study, Rule 2. 90ICRC CIL Study, Rule 156. 91(2009) Case No. IT-98-29/1-A. 92 ICRC CIL Study, Rule 71 93ICRC CIL Study, Rule 70. Page | 23 EDEKO: Human Rights and Humanitarian Cost of the Syrian War as a Customary IHL war crime in both international armed conflicts and internal armed conflicts.94 The use of cluster munitions and barrel bombs in Syria can be prosecuted under general rules governing direct, indiscriminate, or disproportionate attacks. Cluster munitions are incapable of distinguishing between civilians and combatants, or between civilian objects and military objectives. The ICTY in Prosecutor vMartić95held that the defendant‟s use of cluster munitions in a “densely populated” area of Zagreb was presumptively unlawful under general IHL principles, notwithstanding that there were military targets in the general vicinity of the attacks. The attack was also deemed a crime against humanity. Customary IHL contains only a qualified ban on incendiary weapons in all conflicts. Rule 84 of customary IHL provides “If incendiary weapons are used, particular care must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects”.96 Rule 156 is silent as to the use of incendiary weapons. In any case, while their direct use against civilians, as seen in Syria, is conclusively banned by customary IHL, a court would have to determine whether their use there would constitute a war crime, either per se or as a type of indiscriminate attack.97Customary IHL bans the use of chemical weapons. Customary IHL provides that the use of chemical weapons is prohibited both in international and internal armed conflicts.98 The UN Security Council in its resolutions addressed to chemical weapon use in Syria, consistently calls for accountability, implying that the use of chemical weapons in a non-international armed conflict is a war crime.99There has been the use of starvation of civilians as a method of combat in Syria. Customary IHL stipulates that the use of starvation of the civilian population as a method of warfare is prohibited regardless of the conflict classification.100 Customary IHL makes clear that in all armed conflicts, the parties must facilitate impartial humanitarian relief for civilians in need.101 Rule 156 of customary IHL treats starvation and impeding relief supplies as war crimes in all conflicts. There has been sexual violence in the Syrian war. Sexual violence in armed conflict is prohibited. Rape and other forms of sexual violence cannot be used as a means and method of warfare Rape is a prosecutable war crime and crime against humanity at the International Criminal Court. Rape and other forms of sexual violence are prohibited regardless of the conflict classification. The perpetrators of these atrocities in Syria must be brought to justice.102In Syria, children‟s rights are being violated on a massive scale. Rule 135 of customary IHL stipulates that children affected by armed conflict are entitled to special respect and protection. Children must not be recruited into armed forces or armed groups.103 Children must not be allowed to take part in hostilities.104 The actors in the Syrian war have disregarded these rules.
Universal Declaration of Human Rights 1948 The Universal Declaration of Human Rights105 is a milestone document in the history of human rights.106The Declaration was proclaimed by the United Nations General Assembly in Paris on 10
94 ICRC CIL Study, Rule 70-86. 95(2007) Case No.IT-95-11-T. 96 ICRC CIL Study, Rule 84. 97Schaack,„Mapping War Crimes‟, International Law. Studies, (2016), vol. 92, pp. 21– 26. 98 ICRC CIL Study, Rule 74 99Schaack,Supra note 97. 100 ICRC CIL Study, Rule 53. 101 ICRC CIL Study, Rule 55. 102 ICRC CIL Study, Rule 93. 103ICRC CIL Study, Rule 136. 104 ICRC CIL Study, Rule 137. 105 Hereinafter referred to as UDHR 106United Nations „Universal Declaration of Human Rights‟https://www.unorg/enuniversal-declaration-human- rights/ (Accessed 20 April 2019). Page | 24
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December 1948 as a common standard of achievements for all peoples and all nations. It sets out fundamental human rights to be protected.107 Many international lawyers and scholars believe that the Declaration forms part of customary international law. The Declaration has served as the foundation for two binding United Nations human rights covenant; ICCPR and ICESCR of which Syria is a party to. Warring parties have violated human right provisions; contained in the UDHR including; the right to life (Article 3), right to dignity of human person (Article 5), right to freedom of movement (Article 13), right to freedom from discrimination (Article 2) and so on.
7. Conclusion and Recommendations It is indeed very sad that the Syrian war which started with peaceful protests of people demanding democratic reforms and fundamental rights has grown into a full blown war. The war has gone on for years and a lot of atrocities have been committed in the war, the Independent International Commission of Inquiry on the Syrian Arab Republic has been investigating the international crimes that have been committed in the war since the start of the conflict. There have been deliberate, indiscriminate and disproportionate attacks on civilians, thereby violating the fundamental IHL principle of distinction. There have been the use of unconventional weapons; Chemical weapons, barrel bombs, cluster munitions and incendiary weapons. Other methods of war employed in the Syrian war include the starvation of civilians. There is denial of humanitarian aid to civilians. Large scale of sexual violence and rape has been recorded. Massive violation of children‟s rights have occurred and there have been genocide against the Yazidis by the ISIS. It is important to note that Syria is not a party to the Rome statute and therefore may not be subject to its jurisdiction thus, it may be necessary for the UN Security Council to set up an adhoc tribunal to try those responsible for breaches of IHL and Human rights in the Syrian war. In addition, it is hoped that the Syrian domestic courts will be well equipped to handle cases arising from breaches of IHL and human rights.
Based on the issues and problems raised in this research work the following recommendations are made: All parties to the armed conflict must be reminded of their existing obligations. The Geneva conventions and their additional protocols impose obligations on actors in the Syrian war. The legal obligations include: a. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive sufferings.
b. Parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Adequate precautions should be taken in this regard before launching any attack.
c. The Security Council of the United Nations must remind all parties taking part in the Syrian armed conflict of their existing international legal obligations.
d. Soldiers who surrender or who are hors de combat are entitled to respect for their lives and their moral and physical integrity. It is forbidden to kill or injure them.
e. The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the Red Cross, Red Crescent or Red Crystal is the sign of such
107 ibid Page | 25 EDEKO: Human Rights and Humanitarian Cost of the Syrian War
protection and must be respected.
f. Captured combatants are entitled to respect for their lives, dignity, personal rights and convictions. They must be protected against all acts of violence and reprisals. They must have the right to correspond with their families and to receive relief.
g. Civilians under the authority of a party to the conflict are entitled to respect for their lives, dignity, personal rights and convictions.
h. Everyone must be entitled to benefit from fundamental judicial guarantee. No one must be sentenced without previous judgment pronounced by a regularly constituted court. No one must be held responsible for an act he or she has not committed. No one must be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.
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PLEA BARGAIN AND THE QUESTION OF ABUSE OF RIGHT TO FAIR HEARING IN NIGERIA: WHERE LIE THE ODDS? Abstract This paper weighs the veracity of the claim that plea bargain is an abuse of the accused person’s right to fair hearing in Nigeria. The paper critically assessed this claim vis-à-vis the principle of law guiding the practice and the right to fair trial in Nigeria. The paper finds and concludes that the practice of plea bargain, in itself, as practiced in Nigeria does not violate and is not an abuse of an accused person’s right to fair hearing. In achieving this purpose, the paper adopts the doctrinal method of research, while the presentation approach is thematic analytical, critical, expository and comparative. The paper placed reliance on, and analyzed information gathered from primary and secondary sources of law and library materials, such as domestic and foreign legislation and case laws; domestic and international textbooks on Criminal Law, Criminal Procedure Law/Criminal Justice Administration Law, Human Rights Law and other related subjects. Materials were as well sourced from statute book, law reports, domestic and international journals for legislation, instructive decisions and opinions expressed in learned articles on the concept of plea bargain and human rights. A great deal of reliance was placed on internet-sourced materials and online journals for articles and opinions on the subject matter. Despite debunking the claims that plea bargain is an abuse of an accused person’s right to fair hearing, the paper went on to make laudable recommendations for the effective use of plea bargain.
Keywords: Plea Bargain, Plea Negotiation, Criminal Justice Administration, Right to Fair Hearing, Hair Trial, Human Rights.
1. Introduction Reforms in the administration of criminal justice and the imperative of compliance with global best practices have propelled the need for speedy trials, adoption of efficient and cost-effective tools for dispensation of (criminal) justice. Thus, various means of speedy trial, efficient and cost-effective dispensation of criminal justice have evolved. One of such is the concept of Plea Bargain.1 Notwithstanding the benefits of plea bargain, the concept has been criticized as being a violation and infringement on the accused person’s right fair hearing in criminal trials. This criticism is predicated on that position of the law that in criminal trials (like every other adjudicatory proceedings), the accused person enjoys a fundamental right to fair hearing.2 As it relates to the practice of plea bargain, the accused person’s right fair hearing entails, among other things, fair trial in public;3 the presumption of innocence until proven guilty;4 right to examine witnesses called against the accused;5 and the rule against self-incrimination.6This paper, after examining and evaluating the circumstance of plea bargain and all the laws regulating same and the laws providing for an accused
*Reginald Anosike UZOECHI, LLM, BL, PhD Candidate,Lecturer, Department of Public and Private Law, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria. Email: [email protected] or [email protected]. 1G O Adeleke, ‘Prosecuting Corruption and the Application of Plea Bargain in Nigeria: A Critique,’ (April, 2012) 3 (1) International Journal of Advance Legal Studies and Governance, 53. 2As generally contained in Constitution of the Federal Republic of Nigeria 1999, s. 36. 3Constitution of the Federal Republic of Nigeria 1999, s. 36 (4). 4Ibid, s. 36 (5). 5Ibid, s. 36 (6) (d). 6Ibid, s. 36 (11). Page | 27
UZOECHI: Plea Bargain and the Question of Abuse of Right to Fair Hearing in Nigeria: Where Lie the Odds? person’s right to fair hearing in Nigeria, concludes that the practice of plea bargain, in itself, as practiced in Nigeria does not violate and is not an abuse of an accused person’s right to fair hearing.
2. The Meaning and Concept of Plea Bargain The term ‘plea bargain’ is a derived from the two words, ‘plea’ and ‘bargain.’ Plea simply means an accused person’s formal response of ‘guilty’ or ‘not guilty’ to a criminal charge.7 It is the criminal defendant’s formal answer to a criminal charge. It is only when the accused person’s plea is taken that he is said to have put himself upon his trial or submitted himself to the court’s jurisdiction.8 The plea involved in plea bargain is a guilty plea. Guilty plea is usually part of plea bargain and it must be made voluntarily after the accused has been informed of and understands his rights.9‘Bargain’ on the other hand is a negotiation process whereby an agreement is reached between the parties for exchange of promises or performances.10 Consequently, a combination of the connotations of these two words - ‘plea’ and ‘bargain’ helps us arrive at the clear and literal meaning of the concept of plea bargain. By section 494 of the Administration of Criminal Justice Act 2015, plea bargain is said to mean: …the process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaint or information and in conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the Court's approval.
Plea bargain is ‘a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges.’11 This definition falls short of the role of the court in the plea bargain process and its implementation. Plea bargain just like every other subject matter of criminal law has been given different meanings by different writer and scholars, depending on the writer’s perception, sentiments and prejudices toward the idea. It was on the score of perception that Okwori,12 relying on the work of Langbein,13 adopted a human rights approach in explaining the process rather than defining the concept by stating that plea bargain is: Initiated when the prosecution induces an accused person to confess guilt and waive his right to fair trial. Thus the accused by confessing his guilt without being tried relieves the prosecution of the need to prove the accused’s guilt and the court is spared having to adjudicate it. The court condemns the accused on the basis of his confession without independent adjudication.
7B A Garner (ed), Black’s Law Dictionary, (10thedn, St. Paul, Minn.: Thomson Reuters, 2014) p. 1337. 8Adio v The State (1986) 6 S.C. 19; Administration of Criminal Justice (Repeal and Re-Enactment) Law 2011 of Lagos State (Hereinafter ACJL 2011 of Lagos State), s. 212. 9Garner, op cit, p.1338. 10Ibid, p. 178. 11Garner, op cit, p.1338; see also: F.R.N. v Igbinedion & Ors. (2014) LPELR-22760 (CA) (pp. 72-73, paras. F-A) per Ogunwumiju, J.C.A. 12N AOkwori, ‘Plea Bargain: A Trial Procedure that Negates fundamental Rights of the Accused Person,’ (June 6, 2013) Social Science Research Network (SSRN) 1. Available at
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The defect in this perception of the concept is two-fold: first, the proponents undermined the accused’s benefit of getting a lenient punishment in the case of successful plea bargain; secondly, while inducement cannot be completely overruled, it is not always the prosecutor that initiates the process so as to justify the claim of inducement. The plea bargain offer can as well proceed from the accused person or his counsel.14
It is not surprising that Langbein, in another of his work,15 described plea bargain as ‘condemnation without trial’ when he stated that it is a process by which the accused person is condemned without trial, which is akin to the Latin maxim, audiaterempartem, which means ‘nobody should be condemned unheard.’Adekunle16 disagreed with Langbein’s assertion by stating that that does not actually portray the true picture. But he went further to state that plea bargain is a court room procedure which hardly involves a trial because apart from taking the plea of the accused and entering whatever he says in the record book of the court, nothing again takes place except the final judgment. This expression lacks substance as it does not reflect the purpose and intent of the process. Maynard17 shares the same view that plea bargain is a non-trial mode of the court room transaction which consists of an exchange between the prosecution and the defence in a criminal case. Plea bargain is not a court room process; the agreement is reached out-of-court but however, subject to the court’s approval.18Plea bargain has also been defined to mean the practice whereby an accused person standing criminal trial pleads guilty to the charge(s) in return for a lesser sentence or dropping of some charges or both.19 This definition is as concise and as simple as the writer stated it and nothing more pretentious. Adeleke’s20 definition of plea bargain seems more apt in capturing the concept. According to him; One rightly defines plea bargaining as a resolution of a criminal case in a consensually and mutually agreed way between the defendant and the prosecutor with the consent of the presiding judge(s), after the defendant might have agreed to his guilt, with the view to receiving lesser punishment after the agreement to reduce the number of crimes of which an individual (defendant) is alleged.
This definition expresses the very essence of the concept of plea bargain, if not that it failed to mention that there are other concessions that may be exchanged between the prosecution and the accused person, aside those mentioned in the definition. Plea bargain occurs when a prosecutor and the criminal defendant enter into an agreement whereby the defendant pleads guilty and the
14U K Inyang, the Legality of the Use of Plea Bargain in the Nigerian Criminal Justice System. Available online at
UZOECHI: Plea Bargain and the Question of Abuse of Right to Fair Hearing in Nigeria: Where Lie the Odds? prosecutor offers either to move for a dismissal of a charge or charges; recommends to the court a particular sentence or agrees not to oppose the defendant’s request for a particular sentence, or agrees to a specific sentence in the disposal of the case.21Plea bargain consists of the exchange of concessions for a defendant’s act of self-conviction. These concessions may relate to the sentence imposed by the court or recommended by the prosecution, the offence charged, or a variety of other circumstances. They may be explicit or implicit and they may proceed from any number of officials. The concession includes unilateral exercise of prosecutorial discretion, such as an unqualified dismissal or reduction of charges. The concession on the part of the defendant may not end at entry of guilty plea, it may include exchange of other official concessions such as offering restitution to the victim of the crime, giving information or testimony concerning other alleged offenders, or resigning from public office following allegation of misconduct.22
As a novel concept in Nigeria, most of the appellate courts’23 definition is simply an adoption of the Blacks’ Law Dictionary’s definition of the concept of plea bargain, which definition falls short of the role of the Courts in the plea bargain process and implementation. In summary, plea bargain is a process wherein the prosecutor and the defence engage in discussion with a view to reaching an agreement in which the defendant pleads guilty in anticipation of a lenient sentence or any other benefit that would come from the prosecution. The process may be initiated by either the prosecutor or the criminal defendant (his counsel) subject to the court’s approval.
3. The Principle/Doctrine of Right to Fair Hearing Right to fair hearing is one of the basic human rights. Human rights are those universally inalienable rights which every human being is entitled to and liable to enjoy by virtue of being human.24 They are inborn in man, hence natural and innate to man.25 These rights are not created by positive law; rather they are only made fundamental by virtue of their finding expression in positive laws like the Constitution of countries.26The principle or doctrine of fair hearing in its statutory and constitutional sense is derived from the principles of natural justice and its twin pillars, namely audialterempartem, which means ‘hear the other side’, and nemojudex in causasua, which means ‘no one should be a judge in his own cause’. The principle of natural justice is linked to natural law, but historically, the principle of natural justice has its foundation from Genesis 3:9-13; 16-19,27 where the Scripture reports that Lord God did not condemn Adam and Eve without first giving them an opportunity of being heard.28 The natural law concept or principle of fair hearing, which is of course fundamental and bedrock of adjudication or administrative inquiry, is as enshrined in section 36 of the Constitution of Nigeria of the Federal Republic of Nigeria 1999,29 the Nation’s grundnorm so deep rooted that there is no escape from it.30Right to fair hearing is provided for in the 1999 Constitution
21K Oladele, ‘Plea Bargain and the Criminal Justice in Nigeria,’The Punch Newspaper (October 11, 2010) p.68. 22A W Alschuler, ‘Plea Bargain and its History’ (1979) 79 (1) Columbia Law Review, 3-4. 23F.R.N. v Igbinedion&Ors. (2014) LPELR-22760 (CA) (pp. 72-73, paras. F-A) perOgunwumiju, J.C.A.; Romrig Nig. Ltd v F.R.N. (2014) LPELR-22759 (CA) (p. 24, paras.D-F) perOgunwumiju, J.C.A.; PML Securities Co. Ltd v F.R.N. (2014) LPELR-22768 (CA) (pp. 31-33, paras. F-G) perLokulo-Sodipe, J.C.A. 24C R M Dlamini, Human Rights in Africa: Which Way South Africa? (Durban: Butterworths, 1995) pp.3-4. 25O N Ogbu, Human Rights Law and Practice in Nigeria, (2ndedn, Enugu: Snaap Press Ltd, 2013) p.4. 26Ransome-Kuti v A-G Federation (1985) 2 NWLR (pt. 6) 211. 27New King James Version 28KayodeEso, Thoughts on Human Rights & Education, (Ibadan St. Paul’s Publishing House, 2008) p.267 29Hereinafter, 1999 Constitution of Nigeria. 30Judicial Service Commission of Cross Rivers State v Young [2013] 11 NWLR (pt. 1364) 1. Page | 30
AJLHR 3 (2) 2019 of the Federal Republic of Nigeria31 and various other Regional32 and International33 bills of rights. The right to fair hearing is guaranteed under section 36 of the 1999 Constitution of Nigeria, wherein subsection (1) provides thus: In the determination of his civil rights and obligations including any question of determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constitution in such a manner as to secure its independence and impartiality.
The principle is of general application not only in Nigeria, but also in other common law countries to the extent that a presumption has now evolved that whenever any power is conferred by any statute on any authority or body to make a determination, such a determining power shall be exercised judicially and in accordance with the rules of natural justice. Therefore, a breach or otherwise of fair hearing is regards or treated as very fundamental and a sine qua non to any proceedings, hearing or a trial which is subject to an adjudicatory process.34Consequently, any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity.35To this effect, whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.36 Furthermore, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.37 The onus of proving the guilt of the accused person is that of the prosecution.38As a requirement for the accused fair hearing, the 1999 Constitution of Nigeria sanctions that, in addition to being given adequate time to prepare his defence,39 the accused person shall also be entitled to examine, in person or by his legal practitioner(s), the witness(es) called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witness(es) to testify on his behalf before the court or tribunal on the same conditions as those applying to the witness(es) called by the prosecution.40 Above all, the accused person shall not be compelled to give evidence at the trial.41 This is borne out of the rule against self-incrimination.
4. Plea Bargain and the Question of Abuse of Right to Fair Hearing The greatest condemnation and criticism against the concept of plea bargain is that it is a gross abuse of the criminal defendant’s rights to fair hearing.42The Law in Nigeria insists on proof of every
31 S. 36 generally. 32African Charter on Human and Peoples’ Rights 1981, Article 7; European Convention on Human Rights 1950, Article 6 (1). 33Universal Declaration of Human Rights 1948, Article 10; International Covenant on Civil and Political Rights 1966, Article 14. 34Tamti v Nigerian Custom Service Board [2009] 7 NWLR (pt.1141) 636 CA 35Tsokwa Motors (Nig) Ltd. v UBA PLC (2008) All FWLR (pt. 403) 1240 @ 1255, paras A-B; Chime v Onyia [2009] 2 NWLR (pt.) 18 CA; AbubakarAudu v F.R.N. (2013) 53 NSCOR 456@469; InoghaMfa&Ors.vMfaInongha(2014) LPELR- 22010 (SC). 36Constitution of the Federal Republic of Nigeria 1999, s. 36 (4). 37Ibid, s. 36 (5). 38Evidence Act 2011, s. 135 (2). 39Ibid, s. 36 (6) (b). 40Ibid, s. 36 (6) (d). 41Ibid, s. 36 (11). 42Alschuler, art cit; Langbein, Understanding the Short History of Plea Bargain, 261; Langbein, Torture and Plea bargain, p.351; Langbein, Law without Plea Bargain, 204; Okwori, art cit. Page | 31
UZOECHI: Plea Bargain and the Question of Abuse of Right to Fair Hearing in Nigeria: Where Lie the Odds? allegation constituting a crime before conviction can be obtained. It is the dictates of the provision of section 36 (5) of the 1999 Constitution of Nigeria that: ‘every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.’43 That means that until the accused guilt is established, the accused is presumed innocent. Hence, to do otherwise is to ask the accused to prove his innocence.44 This presumption of innocence is however rebuttable.45 By the Evidence Act,46 the standard of proof required to rebut the presumption of innocence in a criminal charge is ‘proof beyond reasonable doubt.’47Proof beyond reasonable doubt does not mean proof beyond all shadows of doubt. It simply means that there is credible evidence upon which the Court can safely rely on to hold that the allegation has been established (and upon which the Court can safely convict if it was a criminal trial). Therefore, where all the ingredients of an offence have been clearly established and proved, then the offence is proved beyond reasonable doubt.48This is not the case with criminal cases settled through plea bargain. In plea-bargained cases, the matter does not go through full scale trial; rather, trial and proof of the allegation of the crime against the accused is dispensed with. It is on this basis that the practice of plea bargain is considered to be an abused to the accused person’s right to fair hearing.
As Alschuler summarized the criticism against plea bargain, ‘the history of plea negotiation is the history of self-incrimination…’49And it was Langbein50 who, in explaining what plea bargain is, asserted thus: In aid of historical inquiry, it will be convenient to emphasize some essential features of modern plea bargaining system. 1...... 2. This non-trial procedure subverts the design of our Constitution, which provides that ‘[I]n all criminal prosecutions, the accused shall enjoy the right to … trial … by an impartial jury… ‘(US Constitution amend V1, emphasis supplied). 3. In order to displace the Constitutional design … we make it costly for the criminal accused to claim his constitutional right. ‘Enjoy[ing] the right to … trial … by an impartial jury …. We rely upon the deterrent effect of the practice to dissuade other defendants from claiming their right to jury trial.51
For Langbein52 plea bargain as a process is: initiated when the prosecution induced an accused person to confess guilt and waive his right to fair trial, thus the accused by confessing his guilt without being tried relieves the prosecution the need prove the accused guilt and the court is spared having to adjudicate it. The court condemns the accused on the basis of his confession without independent adjudication.
43Agbiti v Nigerian Army (2011) All FWLR (pt.570) 1223 at 1254. 44Okoro v The State (1988) 12 SCNJ 19; Unilorin v Akinrogunde(2006) All FWLR (pt. 302) 176. 45Chukwu v The State (2007) All FWLR (pt. 389) 1224. 46S. 135 (1). 47Kareem v F.R.N. (2003) 16 WRN 114 at 128. 48Takim v State (2014) LPELR-22667 (CA) and Ajayi v State (2013) 2-3 MJSC (Pt. 1) 59. 49Alschuler, art cit, 40. 50Langbein, Understanding the Short History of Plea Bargain, 261. 51Ibid. 52Langbein, Torture and Plea Bargain, p.351. Page | 32
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Langbein53 also described plea bargain as ‘condemnation without adjudication.’Okwori54 on his part, maintains that plea bargain is a breach of right to fair trial and relying on the case of Odessa v. F.R.N.55 noted that: Fair hearing is the bedrock of any adjudication. The rule of fair hearing is not a technical doctrine; it is one of substance. A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. Thus if one of the parties is refused a hearing or not given the opportunity be heard, the hearing cannot qualify as fair hearing.56
According to him,57 as a consequence of plea bargain, the rights of the accused person implicated are: i. Presumption of innocence until proven guilty,58 ii. The right to fair trial in public,59 iii. The privilege [right] against self-incrimination,60 and iv. The right to examine the witness called by the prosecutor to testify against the accused.61
Okwori insisted that plea bargain negates the right to presumption innocence. He submitted that it is usually by inducement, which flows from suspicion; an accused person enters a plea negotiation and incriminates himself. Such accused thereby loses his right to be presumed innocent until proven guilty. He argued that, by the Evidence Act,62 it is the responsibility of the prosecution, in all criminal trials, to prove the accused person’s guilt and shifting that burden on the accused amounts to self-incrimination as obtainable in a plea bargain process. He also stressed that plea bargain denies the accused person the right to examine the prosecution’s witnesses, which is one means through which the accused establishes his/her innocence.However intelligible and exciting these arguments that plea bargain violates the accused person’s right to fair hearing appear, they are replete with flaws and cannot be sustained. First, on plea negotiation being an inducement from the prosecutor on the accused to incriminate himself in order to get a lighter sentence, the postulators failed to appreciate that it is not necessarily the prosecutor that makes the plea negotiation offers, so as to justify the inducement allegation. Such offer to plea-bargain could as well be made by the accused person.63 A criminal defendant who, after being served with the proof of evidence against him sees that there is overwhelming evidence against him, may elect to plea-negotiate. Such scenario is not unlikely, and cannot be said to amount to an ‘inducement.’
53Langbein, Law without Plea Bargain, 204. 54Okwori, art cit. 55(2006) 27 WRN 31 at 65. 56Okwori, art cit, 3-4. 57Ibid, 2. 581999 Constitution of Nigeria, s. 36 (5). 59Ibid, s. 36 (4). 60Ibid, s. 36 (11). 61Ibid, s. 38 (6) (d). 62S. 138. 63A W Alaschuler, ‘The Defence Attorney’s Role in Plea Bargain.’(1975) 84 Yale Law Journal, 1179; E S Robert and J S Williams, ‘Plea Bargain as Contract,’ (1991-1992) 101 Yale Law Journal, 1911; Inyang, art cit. Page | 33
UZOECHI: Plea Bargain and the Question of Abuse of Right to Fair Hearing in Nigeria: Where Lie the Odds? One is not however unmindful of the fact that in some instances, the prosecutor coerces/induces the accused to plea-bargain by overcharging, or by a threat to recommend a harder sentence if the accused insists in trial.64 This practically played out in the case of Bordenkircher v Hayes.65 The prosecutor in this case offered to permit the defendant, a repeated offender, charged with uttering a forged cheque, to plead guilty in exchange for the recommendation of a five year sentence. When the defendant rejected this offer, the prosecutor carried out a threat that he had made during the negotiations to return to the grand jury and to obtain an indictment under the Kentucky Habitual Criminal Act. The defendant was then convicted at trial, and the court imposed the life sentence that the Habitual Criminal Act prescribed. The US Supreme Court upheld the constitutionality of the penalty that the defendant had incurred by exercising his right to trial. Indeed, even the four Justices who dissented indicated that they would have upheld this penalty if only the prosecutor had observed some additional niceties in the timing of his threat and offer. An accused’s right to fair trial stands the risk of being breached if the plea negotiation process and the bargain itself are not properly handled.66 But, it will not be true to say that an accused who was convicted through plea bargain was condemned unheard. Since plea bargain is on the basis of voluntariness, where the accused no longer feels comfortable with the negotiation, or he contemplates not getting a fair bargain or even where the accused has been informed of a sentence heavier than what he contemplated or feels coerced, he may decide to withdraw his plea of guilty.67 Where therefore the criminal defendant reneges from the plea negotiation and withdraws his guilty plea before sentence, the trial will commence de novo before a new judge or magistrate.68The statutory effect and implication of such plea withdrawal is that the agreement fails. Consequently, the admissions made by the accused in the course of the failed plea negotiation will not be admissible against him in a subsequent hearing (trial). Furthermore, both the prosecutor and the defendant are prohibited from entering into another plea negotiation on the same facts.69 In the same vain, the Federal Rules of Evidence, Rule 410 applicable in the United States provides to the effect that a plea of guilty which was later withdrawn is not in any civil or criminal proceedings admissible against the defendant who made the plea or was a participant in the plea discussion. Way back in the nineteenth century, there were numerous cases in the US where the use of guilty plea in latter proceedings were prohibited.70 In Kercheral v United States,71the US Supreme court invalidated the practice of a trial judge allowing facts elicited in a withdrawn plea to be introduced at the trial. However, the same US Supreme Court in United States v Mezzanatto72approved that the accused person can validly and appropriately waive the statutory protection of the exclusionary provision of the US Federal Rule of Evidence, Rule 410, specifying that incriminating statements made by the criminal defendant in the course of plea negotiation may not be used against him or her at the trial. It is only in such case that the said incriminating statements can be used against the accused person at the trial.
64A W Alschuler, ‘Plea Bargain and its History’ (1979) 79 (1) Columbia Law Review, 42-43; Okwori, art cit, 5-6. 65434 U.S. 357 (1978). 66Agaba, op cit, p.645. 67ACJL 2011 of Lagos State, s. 76 (9) (b).ACJA 2015, s. 270 (14) (b). 68Ibid; Federal Rule of Evidence 410, 51 FRD315, 355 (United States of America). 69ACJL of Lagos State 2011, s. 76 (10); ACJA 2015, s. 270 (15). 70C Slobogin, ‘The Story of Rule 410 and United State v Mezzanatto: Using Plea Statement at Trial,’ (April, 2006) Social Science Research Network (SSRN). Available at
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Here in Nigeria, notwithstanding the provisions of section 76 (9) (b) of the ACJL Lagos State and section 270 (14) (b) of the ACJA 2015, and the principle as enunciated in the preceding paragraph, a plea statement that is not withdrawn may be likened to a confessional statement upon which the Court can safely convict the accused person. Thus, where an accused person confesses to a crime, and is convicted, such accused person cannot be heard claiming that his/her right to fair hearing has been infringed on. The Nigerian Supreme Court73 has laid down an explicit principle that an accused can be convicted on his confession alone; when the conditions for such necessary conviction are present. This is even regardless of the fact that the accused denied making same or retracted it altogether at the trial. However, where such confession statement is retracted or denied, it is desirable that the content of such statement should be tested by facts outside it before it is can form the basis for conviction. The Supreme Court by this is saying that it does not matter if the confessional statement is retracted, or denied; it is only within the discretion of the court to convict on it if it so chooses. And this can be done once the court satisfies itself of the truth of the content of the statement.74It is only when such statement is adjudged involuntary by a trial-within-trial that it could be rendered unreliable and inadmissible.75In further response to the contention that plea bargain is an abuse to right to fair hearing, Adekunle76 insisted that: ‘…it is doubtful, as the accused has an option either to go to full trial or accept plea bargaining. If he chooses to accept plea bargaining, he cannot be heard to complain that his constitutional right to an impartial trial is being infringed’.77
Another dimension in support of the argument that plea bargain does not negate the right to fair trial is that the right to fair hearing may be adjudged a private right of the individual which such individual might decide to waive.78 Waiver of human rights generally is not a universal principle. In jurisdictions like India, human rights, as a matter of public policy are not classified into those that could be waived and those that cannot be waived.79 However, in jurisdiction like United States, the Courts have uphold the distinction of such rights that are private and those that are in the interest of the public; holding that only private rights could be waived.80Nigeria follows the US classification of distinguishing rights that can be waived from those that cannot be waived. Thus, in Ariori v Elemo,81 the Supreme Court distinguished two types of rights, to wit - one which is to the sole benefit of the individual, which can be waived; and those that are for the benefit of the public which cannot be waived. The case of Enuigwe & Ors. V Anigwe&Ors82is an authority that the right to fair trial/fair
73Shittu v The State (1970) All N.L.R. 233; Hassan v The State (2001) 15 NWLR (pt. 735) 184; Sule v The State (2009) 17 NWLR (pt. 1169) 33; Oseni v The State (2012) 5 NWLR (pt. 1293) 351 at 393, para.F; Bright v The State (2012) 8 NWLR (pt. 1303) 297 at 323, para. F; Galadima v The State (2012) 18 NWLR (pt. 1333) 610 at 632, paras. A - B. 74Supra. 75Ikpesa v Bendel State (1981) 9 S.C. (Reprint) 5; Oseni v The State, supra at 373, para.A; Bright v The State, supra at 318, paras.G-H; Galadima v The State, supra at 632, para.B; Okoh v The State (2014) 8 NWLR (pt. 1410) 502 at 525 - 526, paras. F - A. 76Adekunle, art cit, 11. 77Ibid. 78O B Akeem, Plea Bargain in the Prosecution of Complex Crime, Being a paper presented at the West African Regional Workshop on Plea Bargain, held at Le MeridienHotel Abuja on the 2nd and 3rd May, 2007; For readings on ‘waiver of right to fair hearing,’ see Ogbu, op cit, pp. 273-276. 79BehramKhurshid v Bombay State (1955) A.I.R. 123; Olga Tellis& 2 Ors.v Bombay Municipal Corporation &Ors. (2007) C.H.R. 236. 80Beavers v Haubert(1905) 198 U.S. 77 and State v Lester (1931) 161 Wash 277. 81(2001) 36 W.R.N 94. 82(1992) 2 NWLR (Pt. 225) 505. Page | 35
UZOECHI: Plea Bargain and the Question of Abuse of Right to Fair Hearing in Nigeria: Where Lie the Odds? hearing in Nigeria falls under the category of ‘public right, which cannot be compromised, waived or lost by consent’ of the accused person. That notwithstanding, in criminal trials, an individual’s right to fair hearing (in the sense of either deciding to face his/her trial or admit the crime) in its strict constitutional sense falls under the category of rights that could be waived by the accused person. This is because they are meant for the protection of the accused person while standing trial.It is for the accused person to determine and elect whether s/he wants to go into trial or negotiate a plea. Such as it is also the accused person right to even voluntarily plead guilty or confess to a crime. Such rights cannot by any stretch of imagination adjudge to be a public right; they are rather the accused person’s private rights, (strictly speaking) which the accused person may decide or elect to waive. Right to fair hearing or fair trial can only arise where there is a trial. Where the accused person decides to negotiate a plea, whereupon trial is dispensed with; abuse of right does not even arise at all.
Agaba83 in agreeing with the above postulation stressed that the choice is that of the accused to make between to face the charge(s) leveled against him squarely and take the full weight of the law if the guilt is proved or to opt to take a lesser sentence from the beginning and avoid the rig-/ours and possible embarrassment of a plenary trial. It is therefore safe to say that the right to elect to go into a trial or negotiate a plea is an accused’s private right and as such can be waived by him. Where the accused so decides to waive the right in seeking the benefits of plea bargain, any contention or argument that such right has been negated is nothing but an intellectual gymnastic and mere pretentiousness. Flowing from the foregoing, one cannot help but contend that plea bargain does not negate any of the accused person’s rights. This position is predicated on the fact that it is a point on which an accused person makes a decision. And if he makes a choice, and by so doing waives any right he is entitled to, in order to get a certain benefit, he cannot be heard to complain of a denial of such right.
5. Conclusion and Recommendations Plea bargain as a prosecutorial tool has its advantages and disadvantages. Despite the controversies surrounding the use of the concept of plea bargain, its usefulness cannot be overemphasized. It is on the basis of these controversies that the opponents of plea bargain contend that the application of the concept amounts to an abuse of the accused person’s right to fair hearing. This paper has considered and evaluated these criticisms and come to the conclusion that plea bargain is not an abuse of an accused person’s right to fair hearing. As the paper highlighted, there is no gain saying the fact that in plea bargain, an accused’s right to fair trial stands the risk of being affected and breached if the plea negotiation process and the bargain itself is not properly conducted in line with the requisite guidelines.84 That notwithstanding, it will not be true to say that an accused who was convicted through plea bargain was condemned unheard. It can also not be sustained to contend that plea bargain in itself and its application in criminal prosecution in Nigeria is an abuse of an accused person’s right to fair hearing or even fair trial.
In view of the foregoing discussion and to the take deliberate steps towards ensuring that plea bargain remain that useful prosecutorial tool in Nigeria; the following recommendations are preferred in addition to other earlier rendered in the body of this paper.
83Agaba, op cit, p.645. 84Ibid. Page | 36
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Exploring and Exploiting the Provisions of ACJA 2015, Lagos ACJL 2011 and Anambra ACJL 2010 in the Application of Plea Bargain in Nigeria As part of checking the misuse and abuses of plea bargain, and ensuring that the rights of accused persons are properly safeguarded, the starting point is to put into proper utility the provisions of some laws that provide the guidelines for the application of plea bargain. These laws include the ACJA 2015, Lagos ACJL 2011 and Anambra ACJL 2010.This is in view of the fact that these laws have put in place sufficient legal framework that should be explored and exploited for a proper utilization of the plea bargain. These laws have elaborate guidelines to regulate the use of plea bargain in Nigeria and these can cure the abuses and misuses of the concept which in turn would promote the protection of the rights of an accused person who may want to enter into a plea negotiation with the prosecutor.
Evolving and Issuing Practice Guide to Public Prosecutors by the Attorneys-General This is a corollary to the issuance of sentencing guidelines to the judges. It is an established fact that sometimes prosecutors, as well, abuse their prosecutorial discretion by preferring charges on lesser offences while dropping the serious ones. To this effect therefore, it is recommended that the Attorney-General and the heads of prosecuting authorities should evolve an effective supervisory arrangement in the form of a Practice Guide to guide and regulate the exercise of prosecutorial discretion of prosecutors engaging in plea bargain.
Organizing Seminars and Workshops for Judges, Prosecutors and Investigators on the Subject Matter of Plea Bargain There is no gainsaying the fact that plea bargain is a novel and emerging trend in the Nigerian criminal justice system. This accounts for the prevalence of abuse and misuse of the concept. There is therefore the need for the entire stakeholders in the criminal justice system to put up seminars and workshops for all the major players on the use and application of plea bargain. These would include the investigator, who may coerce suspects (accused persons) to admitting guilt, thereby infringing on the suspects’ (accused persons’) rights; the prosecutor, who prefer charges for very lesser offence and recommend ridiculous punishment; and the judges, who hand in miserably light sentences and/or fail to inquire into the voluntariness of the plea bargain. The seminars and workshops will provide these key players with the basic knowledge and rudiments of an effective and efficient plea bargain procedure.
Attitudinal Change/ Institutional Reorientation While it is true that we desire a positive change in the criminal justice system generally and in the use of the plea bargain procedure in particular, it is also necessary that every stakeholder in the criminal justice project in Nigeria should change our attitude toward the practice and make the best out of it. Plea bargain as an emerging trend should be used and applied with caution. The judge in his bid to dispose cases expeditiously through the approval of a plea negotiation struck between the prosecutor and the criminal defendant should exercise caution not to compromise justice. He should also be conscious of the likelihood of the accused person’s right and make deliberate effort to ensure that the accused right is adequately protected and guaranteed. Prosecutors should ensure that plea bargain is not explored as an avenue to exploit the accused person thereby causing a breach of the accused rights.
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THE NIGERIAN CONSTITUTION AND FEDERAL CHARACTER PRINCIPLES: A CRITICAL APPRAISAL*1 Abstract No nation strives nor develops under the atmosphere of disintegration no matter the efficiency and effectiveness of its leadership and other paraphernalia put in place for an effective legal system. The Nigerian polity faced this challenge since the inception in 1914 as a result lumping together of many nations with different cultural backgrounds as a country without their consensus by the British imperialist for the latter’s self economic interests. Though the British administration in Nigeria has come and gone but the effects of the lumping are still having its tolls in the polity, worsened by the effects of the civil war which was also partly caused by the lumping. To remedy this rancor among these different nations called a country and actualize national integration of the system, measures such as federalism, zoning of the political leadership and Federal Character Principles among others measures were introduced to accommodate all and sundry especially the minority. The object of this paper is to appraise the effectiveness of the Federal Character Principles as enshrined in the Nigerian Constitution in the light of the rationale for its establishment. To critically look at this, the paper adopted doctrinal methodology using primary and secondary sources of information supported with historical and comparative approaches to drive home the points. Unfortunately, it is discovered that the federal character principles as currently practiced does not depicts the rational for its adoption. Rather it is for the personal aggrandizement of the bourgeois class. The principle sacrifices meritocracy at the altar of mediocrity among other ills; this is unlike what is obtainable in Germany that practices it. Thus the paper proposes for its scrap and suggests among other things, the restructuring of the polity based on regionalism to bring nearer home the minority participation in government affairs.
Keywords: Constitution, Federalism and Federal Character Principle.
1. Introduction Nigeria is a conglomeration of many nations. The pre-colonial Nigeria shows that the three major nations that later formed Nigeria are the Hausa, Igbo and Yoruba nations. These afore mentioned nations each has a different way of life and did their business tractions according to the chosen partners. For instance, until the formal arrival of the British in the territory later called Nigeria, the Northern Nigeria was economically oriented towards Tripoli and Egypt. Unfortunately, the quest for economic interest of the British imperialist got these nations lumped together through colonization. The 1914 amalgamation of the Northern and Southern Nigeria as a country sealed this interest. Since then, there have been ripples here and there because the foundation is shaky. The three major ethnic group as designated by the British are heterogeneous in nature and so lack common culture that binds a nation. Recently, it is discovered by the Bible Society of Nigeria, that Nigeria has about five hundred and thirteen (513) ethnic groups,2 instead of two hundred and fifty ethnic groups earlier projected. The minority ethnic groups among these three majority ethnic groups at one point or another revolt either against the majority ethnic group around them or against the central government accusing them of marginalization. It is on this note that the federal system of
1*Ann Chinwe AKPUNONU, PhD, Lecturer, Department of Public and Private Law, Faculty of Law Chukwuemeka Odumegwu Ojukwu(Formerly Anambra State) University, Igbariam, Anambra State. Phone: 08035667670. [email protected] 2The Bible society of Nigeria projected this information. Page | 38
AKPUNONU: The Nigerian Constitution and Federal Character Principles: A Critical Appraisal government was introduced in the 1954 during the Lyttleton Constitution to integrate the heterogeneous nature of Nigeria that emanated from the lumping, since the unitary system government introduced and practiced by the imperialist Britain in the 1922, 1946 and 1951 Constitutions could not do the magic. Albeit, the Federal system of government as practiced in the 1954 and 1960 Constitutions was a mixture of British model of administration housing West minister type of administration. That is system in which there was a ceremonial head of state and a head of government. This type of governance was unAfrican and thus was rejected by Nigerians. Based on the above premise, the 1963 federal system of government and Constitution discarded the west minister modal of governance; rather regionalism was introduced into the system. To this end, Northern, Western and Eastern regions were created and later the Mid-Western region was created which came very close to the outbreak of the civil war in 1967.
Though the 1963 Constitution was very much elaborated than what were obtainable earlier but since the foundation was shaky, there were still agitations here and there because the forced brotherhood perpetrated by the British imperialists more yielded negative result. So Nigeria as politically arranged is a product of British experiment in political cloning.3 An eminent Nigeria political actor described the product of the experiment as a mere geographical expressions4. While Ahmadu Bello saw the creation of Nigeria as the mistake of 1914.5Thus the tension mounted since the creation of Nigeria continued to advance because, the different ethnic groups lumped together have never till date see themselves as one, let alone a nation. Rather there was mutual suspicion and contempt.6 The North dreaded the South as uncivilized, pagan, undisciplined, rowdy and nakedly materialistic and the South in turn ridiculed the North as feudalistic, conservative, illiterate, plaint tool of the colonial masters.7 The antagonistic duality was so deeply ingrained in the Nigeria system that Chief Awolowo saw the two parts as ‘divergent and almost irreconcilably oriented’.8 The already devastated system was worsened by the civil war partly caused by lumping. Thus the Federal Character Principle introduced by the administration of General Murtala Mohammed on the 18th October 1975 was employed to aid national integration and remedy the effects of civil war.
2. Constitution The term Constitution lacks a universally accepted definition. On this premise, people define the term Constitution differently either from personal perception or background, adopting either the complex or the simplistic approach to define the term. Garner Bryan adopted a complex approach and defined Constitution as the ‘Fundamental and organic law of a nation, character and organization of its government as well as prescribing the extent of its sovereign power and manner of its exercise’.9 It is the system of law and basic principles that a state, a country or an organization is governed by.10Constitution is best practised under a democratic regime to guide the governor and
3J.A.A. Ayoade, ‘Federal Character Principles and Search for National Integration’ Federalism and Political Restructuring in Nigeria’, in AmuwoKunle et al (ed), (Ibadan: spectrum Books limited, 200) 101. 4ObafemiAwolowo, Path to Nigeria Freedom, (London: Fabar and Fabar, 1947) 47. 5Bello Ahamadu, My Life, (London: Cambridge University Press, 1962) 133. 6J.A.A. Ayoade in AmumwoKunle et al, n 3 above. 7Ibid 101 8ObafemiAwolowo, n 4 above. 9 A. Garner Bryan, The Black’s Law Dictionary (ed) (7 edu, USA: West publishing company, 1999) 306. 10This another simplistic definition offered by the Oxford Advanced Learner’s Dictionary by Leonie Hey and Suzanne Holloway at 326. Page | 39
AJLHR 3 (2) 2019 the governed. Constitution is the grundnorm of the polity where it is adopted and must emanate from the will of the people to achieve the desired objectives for which it is enacted. On the other Constitutionalism is the instrument of restraint which otherwise checkmates the government. Indeed, without a Constitution, whether written or unwritten to regulate government life and set out the fundamental objectives, goals and directive principles of a country, the national life and indeed the personal lives of the people would be subjected to a lot of arbitrary actions from government. Government actions would be according to the whims and caprices of the rulers, public authorities and their agents11 without Constitution in a polity like Nigeria, lawlessness, chaos and lack of direction would reign. Therefore government must be according to civil and regular laws, that is, laws which are justiciable in a democratic society and not according to men.12
The Supreme Court added to the above view and defined the Constitutional Law in A.G. Bendel v A.G. Federation and 22 ors, as the law which regulates the structure of a country, the powers and functions of government, rights and duties of the individual and provides remedies for unconstitutional acts.13 Government and the governed must respect the laws of the polity until they are changed; it is the law that made rulers…, as held in Lagos State v Ojukwu. 14Similar ruling was also held in Williams v Majekodunmi15 where the Supreme Court in a declaratory judgment, held that the plaintiff who was restricted unjustifiably was entitled to his freedom of movement. Also in Garbaand Ors v University of Maiduguru,16 the plaintiff and other students who protested were expelled after various investigations without fair hearing nor were they given opportunity to know the offence committed. In this case, Uwais J.SC, as he then was, said: ‘It is the view of this court that where a person is accused of committing a criminal offence, he must be taken before a court of law for trial and will not merely be dealt with by a tribunal’.17These cases and illustrations go to show that a good Constitution whether written or unwritten must at all times balance the equity between the government and the governed to ensure peace and tranquility and doing otherwise may be an invitation to chaos and anarchy, which Nigeria in the contemporary dispension is facing.
A good Constitution should among other attributes be elastic and liberally interpreted to meet the demands of ever changing social, economic and political needs of the country.18 While the function of a Constitution irrespective of the type should include among other functions the aims and objectives of people that own the Constitution as for example captured in the preamble to the Constitution of the Federal Republic of Nigeria, 1999, (as amended) and states:
11Shugaba v Minister of Internal Affairs (1999) INCLR, 456, Dele Giwa v IGP Unreported suit No M/44/83 of 30/7/84, A.G. Fed v Guardian Newspaper (1999) NWLR Pt 618, p.187, Director of SSS v Agbakoba, S.C. (1993) 3 NWLR, p.595, p.314 SC. Amakiri v Iwowari (1974) 1 RSLR 5. Government of Lagos State v Ojukwu (1986) INWLR pt 18, p.621Sc, all in E.O. Malami, The Nigerian ConstitutionalLaw (1stedn. Lagos: Princeton Publishing co, 2006) 5. 12Ibid. 13[1982] All NLR 85 (SC) and also E. Moses Akpan, Constitution and Constitutionalism: An Analysis of Nigeria, (Lagos: PAICO Ltd, 1979) 1. 14I NWLR (Pt.) 18, 621 15 [1962] I All NLR 16[1986] INWLR (Pt.) 18, p.550 (SC.) in E.O. Malami (n 11). 17Ibid p.609 18This was the ruling in A.G. Bendel State v A.G. Federation and 22 ors [1982] All NLR 85 (Sc) and NafiuRabui v state [1980], 8-11 (SC) 130, 27 Page | 40
AKPUNONU: The Nigerian Constitution and Federal Character Principles: A Critical Appraisal We the people of the Federal Republic of Nigeria: firmly and solemnly resolve: to live in unity and harmony as one indivisible and indissoluble Nation under God dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding...19
It controls the relationship between the government and the citizens.20 Constitution defines and preserves the personal liberties. This is otherwise called Fundamental Rights. Many of these rights are expressly stated under the chapter four of the Constitution of Federal Republic of Nigeria, 1999. To this end, every seasoned leader must at all time work within the provisions of the Constitution get the desires and aspirations of the people accomplished.
3. Federalism The concept of federalism is among the term that lacks universally accepted definition, with the result that several authors who attempted the definition defined it according to their perceptions and backgrounds. In view of this, Nwabueze defines Federalism as an arrangement whereby powers of government within a country are shared between a national country –wide government and a number of regionalized (that is territorially localized) government in such a way that each exists as government separately and independent from the others, operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of its affairs with an authority in some matters exclusive of all the others.21Nwabueze’s definition is widely accepted especially in Nigeria but, the most globally accepted definition was given by K.C. Wheare, who described federalism or federal principle as ‘the method of dividing powers so that the general and regional governments are each within a sphere, coordinated and independent’.22
Reasons for Adopting Federalism Most often a particular political structure may be chosen as a result of certain relevant variables associated with it. Therefore adopting Federalism has two aspects and these are centrifugal forces of diversity and centripetal imperative of the union.23The centripetalists reasons for adopting Federalism include military and economic reasons and protection of the rights of minority groups in the regions and to establish federalism as it were in USA and Canada. Whereas the centrifugal arguments will include that adoption of federalism will make for preservation regional autonomy in purely local matters…24 The above reasons also fit into why Nigeria adopted federalism
19The Constitution of the Federal Republic of Nigeria, 1999, (as amended), provided for the above aims and objectives in the preliminaries to the Constitution. 20The Constitution of the Federal Republic of Nigeria, 1999, section 173(1) provides, subject to the provisions of the Constitution, the right of a person in public service of the Federation to receive pension or gratuity shall be regulated by law. 21 B.O. Nwabueze, Federalism in Nigeria under the President Constitution, (London: Sweet and Maswel, 1983) 1. 22A. Kayode, ‘Federalism and Federal Character Principles in Nigeria: A. Dilution’, [July 2015] at
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Challenges of Nigerian Federalism The challenges of the Nigerian Federalism are many and stem from; lack of consensus to the union; over centralization of powers at the centre; lack of multiple Constitutions (that is state Constitutions), absence of full independence of the judiciary; lack of fiscal federalism; bad leadership; absence of relative quality; lack of separateness and independence of each government and corruption among others. These shortcomings of the Nigerian Federalism reduces the system to just a mere name than in practice. For instance, of the ninety-eight lists provided in the Constitution to legislate on, sixty-eight items are for the exclusive legislation of the centre, that the National Assembly, while the remaining thirty (30) items are banished in the concurrent legislative lists for both the centre, that the federal and state government to legislate on. If any other law enacted by the House of Assembly of a State is inconsistent with any law made by the National Assembly, the law mad by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void.25 If this is the case, it means that at any pointing in time, the centre can declare interest in any item in the concurrent legislative list and even if the particular item is being handled by state, with the provisions of section 4(5) the state will have no option than to hands off. The provision reduces the state legislatures to a mere under dogs who can only eat from the remanants that fell from the table of the centre instead of the two units sharing powers as practiced in other Federal jurisdictions like United States and Canada. In view of the above current challenges Mato in Kayode prefers the 1960 federalism and states: ‘Nigeria of 1960 was a better federal arrangement than it is now. In 1960, there were three regions that exercised some measures of authority within the federation. The regions had some liberty and politics was thus both regional and national…’26In as much as we may agree with Mato view that the 1960 federalism to some reasonably extent was much better than the present day federalism in Nigeria, but the centrifugal forces emanating from ethnicism were also very manifest in the 1960 and 1963 federalism and contributed immensely to the failure of the 1963 Constitution.
4. National Integration National integration is the awareness of a common identity among the citizens of a country.27 It means that though citizens belong to different cast, religion, region and speak different languages, they still recognize themselves as one.28 This is the kind of integration federalism tends to achieve when it is adopted in Nigeria, but for the corruption and self centredness, true and dividends of federalism eluded Nigeria. Nation building and national integration have common expression. Nation building is the process of surrounding ethnic loyalty, cultural and linguistic loyalty to a powerful coercive authority (nation).29 Deutch and Foltiz, described national integration as to imply the evading of all ethnic biases, ties, and affiliation and the trapping of these variables by a higher and central authority for the purpose
25 Constitution of the Federal Republic of Nigeria, 1999, (as amended), section 4 (5) 26Mato in A. Kayode, n. 22 above. 27Kayode Asaju and Tony Egberi, Federal Character and National Integration in Nigeria: The Need for Discretion and Interface’. Review of History and Political Science [June 2015]. Vol. 3, No.1 pp.126-134 in America Research Institute for Policy Development
AKPUNONU: The Nigerian Constitution and Federal Character Principles: A Critical Appraisal of national unity, stability and development.30Implicitly, integration can be harnessed at national, regional and internal spheres. Nigeria as a result of its heterogeneous nature adopted integration or nation building to attract national unity, stability and peace for the required progress in the polity.To achieve national integration Nigeria, the Federal government of Nigeria introduced several measures such as of federal system of government; National Youth Service Corps under Decree 24 (1973) now Act; establishment federal institutions of higher and unity schools in each state of the federation, hosting of national cultural and sports, introduction of federal system of government and others. Despite these measures, national integration is yet to be achieved in Nigeria. This is because elements of integration could only be achieved when people living within a geographical area know and communicate freely and understand one another, mutually co-operate, depend on one another for their needs and services, work as a unit, share the same idea and belief system,31 and these cannot be said to exist in Nigeria.
5. Federal Character Principle Federal Character in a deeper meaning is a doctrine of the 1979 Constitution sought to give a semblance of order to the modes of the distribution by preventing every primordial groupings from having predominate and exclusive access to these opportunities and benefits inherent in the exercise of state powers and thus ensuring that every primiordinal groupings has some access to the bounties of the state.32 It appears in the 1979 constitution as a reviousionist principle of federalism intended to control the uses of state powers by correcting Nigerian’s previous failure, particularly during the civilian era between 1960 and 1966.33 Federal Character refers to the distinctive desire of people of Nigeria to promote national unity, faster national loyalty and give every citizen of Nigeria a sense of belonging to the nation notwithstanding the diversities of ethnic origin, culture, language or religion which may exist and which it is their desire to nourish, harness to the enrichment of the Federal Republic of Nigeria.34
JideIbietan is of the view that the above definition of federal character by the Constitution Drafting Committee as quoted in A.E. Afigbo appears to be very one word and suffers from many counts. Concurring with Afigbo in another aspect, he states, that Federal character cannot be a desire. In addition ‘the desire to nourish’ in the definition appears very ambiguous. Querring the meaning of desire, he further states that if the desire is known, then what is the desire attempting to nourish? In summary, JideIbietan is of the view that Constitution Drafting Committee only tried to highlight some issues agitating the minds of Nigerian on how to make every segment of the society to be represented in the formulation and implementation of government policies known in Nigeria as ‘the
30Ibid 31Tion, Patrick Aondoaka, Godwin Orluchukwu, Federal Character Principle in Nigerian Constitution and Its Applicability: Issues and Challenges; in 10 SR Journal of Humanities And Social Science (10SR-JHS3) vil. 20. Issue 12, ver. v (Dec. 2015),
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National Question.35 The phrase ‘desire of the people of Nigeria to promote national unity’ in the earlier definition by (1979) is an indication that there is the need to reappraise the Nigeria federal system, in order achieve enduring unity and sustainable development.36
Rationale for Federal Character Principles The Constitution provides that the composition of Government of the Federation or any of its agencies and conduct of its affairs shall be carried out in such a manner as to reflect the Federal Character of Nigeria and the need to promote national unity, and also to command national loyalty,37 thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional group in that Government or in any of its agencies. The rationale for establishment of federal character no doubt influenced the precise definition of the term such that the meaning is better understood from the rationale for the establishment. In view of this, those who attempt defining it ended up in stating the rationale for its establishment as shown above. For example Afigbo in his numerous definitions adopted this pattern as could be seen above. In a more sophisticated usage, Afigbo defines FC to imply balancing the North and South, Igbo and Yoruba and Hausa-Fulani as well balancing this trinity against the rest.38 Simply put Federal Character Principle purports to deal with ethnic balancing of human and material resources in Nigeria in order to ensure integration in the polity. Since ethnic identities are multiple and fluid, the challenge is to find institutional means to enable ethnic group to live with one another in some degree of equity and mutual trust, this challenges is found in the principle of federal character.39 The Constitution provides that in appointing chairman and members of the Board and governing bodies of statutory corporation and companies in which the government of the state has controlling shares or interests and Council of Universities, Colleges and other Institutions of higher learning, the government shall conform to the provisions of section 14(4) of the Constitution.40Nigeria is a country with enormous bounties steaming from oil wealth, large population as well as surplus agricultural and human potentials. Despite these potentials, the country is yet to establish the relevant socio-political and economic framework for transformation and development. The essence of the Federal character principle no doubt is to ensure among other issues, social harmony, stability and above all national integration in the polity,41 in order to harness the bounties of the polity.
35JideIbietan, ‘Federal Character Principle and Administrative Effectiveness In The Nigerian Public Service: Challenges and Prospects for Sustainable Development, 1999-2012. Introduction’Covenant University Ota Nigeria, 2013, accessed 7th March, 2019. 36Ibid 37The Constitution of the Federal Republic of Nigeria, 1999 (as amended), section 14(3) 38A.E. Afigbo, (n 34) 5-16 39Kola Olugbade, ‘The Nigerian State and Quest for a stable Polity’, < stable
AKPUNONU: The Nigerian Constitution and Federal Character Principles: A Critical Appraisal A Critical Appraisal of Federal Character Principles Contrary to the declaration or rationale for adoption of federal character stated above. That is to mitigate the effects of merging 513 ethnic groups with diverse languages, religions, traditions and norms in 1914 which resulted in offspring of acrimonious coexistence mutual distrust and inter- community conflicts and the likes which has become an age long problem to nation building, the principle right from the official inception in 1979 to date, is very much bastardized. The practice is extended to almost all issues in the polity such as, promotion, political affiliation to membership to games and sports, especially the national and the international sports and games, even when the person cannot find his fit in local sports and games. Therefore the federal character principle laudable as it is, is rather counterproductive.42The appointment made by the late President Umara Musa Yar’Adua and also the recent appointment made by the Buhari administration put no one in doubt as regards the type of leadership in Nigeria and their own rationale for Federal character principle, because the appointments virtually tilted in favour of a particular ethnic group, (the North).It is important to note that available information in the work of Philip O. Kolo, revealed that the Northerner dominated other parts of the country in most key posts in Nigeria since its inception.43 The appearance of some southerners as heads of States in Nigeria is predominately accidental. These are illustrative of the former civilian presidents in the person of Chief Obasanjo and Goodluck Jonathan. The recent Department of State Security Services (DSS) lopsided recruitment of the Northerners makes us question the rationale for federal character and functions of the federal character commission. The recruitment shows that 165 cadet officers are from the North West, North East 100, North – central 66, South –West 57 and South –East 44.44 The breakdown of the recruitment above showed that President Buhari and the DSS Director General Lawal Musa Dauras home State Katsina got the highest slots. What a shocking discrimination from a man who swore and promised to reduce corruption to itsbearest minimum, more so at a time when the drums of marginalization especially from the South- East and South –South zones are the apex.
The Federal character in trying to stress the need for ethnic balancing, unfortunately, enthrones ethnicity, elitism, mediocrity, mutual suspicion, sentimentalism, corruption and de-emphasizes nationhood. The principle promotes centrifugal forces and particularistic approach to issues of paramount importance. The Federal character principle is being manipulated by and channeled to serve the overall interests of the petty bourgeoisie ruling class.45 In the light of this unfortunate situation, Agbaja noted:
42Section 14(4) referred above states the composition of the government of a local government council or any of the agencies shall be carried out in such a manner as to recognize and conduct the affairs of the government or council and the diversity of the people within the area of authority and the need to promote a sense of belonging and loyalty among all the people of the federation. 43Adeosun in Philip O. Okolo‘Influence of Federal character principle on National Integration in Nigeria,’ American International Journal of contemporary research vol. 4 No.6 (2014) 127 -131 (accessed March, 2016). For more details on Philip’s revelation, see the Sunday Tribune, 7th August (1994), Ibadan, Nigeria pp.7-9. The spread of list of Heads of States from 1960-2014 showed that the Northern took the major part of Heads of State of Nigeria. 44Ventures (2010), ‘the DSS lopsided recruitment of Northerners makes us question the Federal character’ at
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The Federal character principle has been mainly an elite preoccupation … under the guise of the federal character principle, members of the bourgeoisie class get themselves entrenched in power and exercise control over the machinery of State. The strive to reconcile their differences through the operation of acceptable formula for allocation, distribution and sharing of national resources and benefits among themselves and in the course of this elite game, members of this class climb to the position, amass wealth and enrich themselves.46
Adebisi rejects the formula for the Federal character, rather prefers a new development strategy under a socio- economic system. He suggests that with man at the center of our planning activities, the State would be better placed to solve the problem of men whenever he may be in Nigeria then to seek to solve the problem of ethnic man through fake ethnic man representative.47Supporting the above view, Bodurin says instead of trying to eliminate unhealthy competition among different ethnic groups, the implementation of federal character policy tends to rather exacerbate those rivalries and to be working towards disintegrating the nation rather than unit it. So in the alternative and in line with our thinking, Budurin made a submission for confederation and acknowledged that with the system, the will be few common service … such common services would be those whose effects do not impinge upon the immediate daily lives of the individual.48 Forrest in Jide Ibietan argues that the implementation of the principle of the federal character in the public service not only led to poor appointment but also enhanced mediocrity rather than merit.49Suleiman contend that ‘Poor capacity of the majority of civil servants, sometimes to the point of illiteracy’ arising from the application of FC is one of the reasons for poor performance of the Nigerian public services. This view further supports the argument that the neglect of capacity development programme for public servant and the implementation of the FC offer a credible explanation on the ineffectiveness of the Nigerian public bureaucracy for sustainable development in Nigeria.50Jide is of the opinion that one of the manifestations of the implementation of the federal character is the poor employee procurement practice, which results in unethical behavior among public sector workers in Nigeria. Below are some of the instances by Jide Ibietan: The audit investigation ordered by the Nigerian Federal Ministry of Petroleum Resources towards the end of 2011 with the involvement of Nigerian National Petroleum Corporation (NNPC) and was carried out by an internationally recognized audit firm –KPMG, revealed that the cost of subsidy payment on petroleum products not consumed by end users due to losses from theft and even those not applied for use in Nigeria between 2007 and 2009 amounted to NGN11.8billion or USD76.13million. The appointment of public officers based on federal character principle or political patronage led to the appointment of Chief Bode George a former National Vice- Chairman (West) of their ruling party- People’s Democratic Party (PDP) as Chairman, Head of the Nigerian Ports Authority (NPA) in 2009. Chief Bode and
46Ibid 47Busari O. Adebisi‘Federal Character and Social Class’ in Federal Character and Federalism in Nigeria, Peter P. Ekeh and Egbose E. Osaghe, (ed.) (Ibadan: Heinemann Educational Books, 1989) 342 48Peter Budurin, ‘Federal Character and Social Justice’ in Federal Character and Federalism in Nigeria, in Peter P. Ekeh and EghosaOsagha (ed.), (Ibadan, Heinnman Educational Books, 1989) 321 49JideIbietan (n 35) 50Ibid. Page | 46
AKPUNONU: The Nigerian Constitution and Federal Character Principles: A Critical Appraisal four members were jailed by the Lagos High Court for contract inflation and mismanagement of NGN100billion or USD645.16 million belonging to NPA. The embarrassing reports above show that for Nigeria to step into sustainable development and integration, merit must take precedent over federal character. In line with this view Senator Bruce States Nigeria must make progress though tribe and tongue may differ the only way to do this is by saying goodbye to ethnicity and hello to merit … consider the progress that Nigeria made before the quota system (1960- 66) and the retrogression we have made since 1960 till date. The difference is clear, Federal character cannot make an electrical power station work, it can’t make refinery work. Only merit can ensure this. As a result of federal character… Nigerian Airways went from 30 aircrafts to bankruptcy and a debt of over 60m by the year 2000. Quota system and Federal character lead to a sense of entitlement in beneficiaries and recruitment in others.51
In a contrast opinion, Utume argued that in a deeply society such as Nigeria, equity is one of the strongest ways of establishing confidence among the group, because it is by that they can feel sense of belonging and so commit themselves to the continued existence of the union.52Meritocracy is identified as the strongest opponent of the Federal Character principle but Utume made a case that apart from technical areas like flying a plane and operation of computer and other related fields, logically a minimum standard of competence maybe balanced with excellence and this is where federal character steps in. 53In Utome’s opinion, Federal Character is closely related to principle of proportionality and so there must be technical resources that must be reliable and constantly updated to ensure its realization and to avoid the mischievous elements taking advantage of ambiguities to perpetrate their iniquities, guideline to its implementation must also be unambiguous. 54Agbodike also is of the view that as long as Nigeria remains a federation and a heterogeneous polity that the need and clamour to balance the diverse interests in the country will always be there and the federal character principle is employed to take of the diverse and conflicting interests. Therefore, what is important is to seek ways and means to make the principle less rancorous and problematic and the channel it in such a way as to ensure the overall unity and progress of the country.55 In view of the above stand, Agbodike made certain recommendations, such as balancing the State creation in the South and which is distorted in favour of the North, but care must be taken to ensure the viability of the State to be created so as to meet its obligations, enactment of appropriate legislation to remove the indigene syndrome engendered by the federal character principle and the discriminatory policies. Also that merit should adopted where it is absolutely necessary such as in medical practice, pilot, architecture and others.56
51A. Kayode (n 22). 52Davide A. Utume‘Federal Character as an Equitable Principle’ in Federalism and Political Restructuring in Nigeria in KunleAmuwo et al (eds.), (Ibadan: spectrum Books ltd. 2000) 207 -208. 53Ibid 54Ibid, pp 208 -209 55C.C. Agbodike, ‘Federal Character Principle and National Integration’ in Federalism and Political Restructuring in Nigeria, in KunleAmuwo (eds.), (Ibadan, Spectrum Books Limited, 2000) 177 56Ibid Page | 47
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The suggestions of Agbodike and other associates are quite recommendable but the implementation of these laudable recommendations for a better principle in our opinion maybe an uphill task, when we remember that the leadership and the elite class in Nigerian are not transparent, accountable and responsive to their oath of office and the masses on whose mandate they operate. Many nations of the world such as the United States, Cannada, and the developing South Africa solve problem of social and economic inequality through social justice in form of unhindered access to education, basic health care, food abundance, grants if need be and housing and not through a principle that encourages and widens more the gap in laziness and sacrifices merit at the altar of mediocrity. Rather, the government should emphasize more on value orientation, excellence, de-emphases indegenship among others. Albeit, the federal character principle may have succeeded in laying out the road map for nation building, but as regard effective implementation, the principle is a total failure, rather the principle, more or less as evidenced in the polity, has assisted in generating some social crises ranging from indegenship syndrome, militia and other defects.
6. Conclusion and Recommendations The pre-colonial Nigeria practiced value orientation which virtually promoted hard work. Though there were minor conflicts, these were taken care of through the customs and traditions of the people. However with the amalgamation of 1914, the different ethnic groups in the pre-colonial Nigeria were merged and under the name Nigeria and administered unilaterally by the imperialists Britain applying as it were the same system of administration to the different ethnic groups. Since then it has been more of rancor than peace, thus making nonsense of the unification because the union was imposed and the ethnic groups have never agreed to be united. Many measures were introduced to encourage nation building as illustrated above all to no avail because, round pegs were put in square holes and so do not fit in. FC may have worked but for the mode of selection and type of personalities selected to manage it are incompetent. An incompetent manager is a dangerous to a sustainable productivity and in all dangerous to growth and development. So the rationale behind the establishment of federal character can never be realized so long as it is mostly channeled more to the mediocrities and manipulated by the bourgeoisie for their self-interests, thus perpetrate injustice than justice. Leaders and elites in Nigeria must remember that they operate on the mandate of the people and so must live above board. Thus shun greed and corruption so that the resources of the nation will be ploughed back for the establishment of social amenities and embark on sustainable development for the good of all. They should as a matter of utmost importance abide by rule of law for the citizenry to emulate. Effective orientation to de-emphases indegenship among the ethnic groups is of essence, so that at any pointing time a person may freely chose his place of residence or abode and participate freely in social, political and economic affairs of his residence without being hindered as it is obtainable in advanced countries of the world such as Canada, United States and others. Effective implementation of education for all is imperative. This is because education gives insight and light to self development and contribution to the sustainable development of one’s polity and the world at large. Excellency and hard work should be encouraged no matter one’s state of origin. Fiscal Federalism should be effectively implemented, so that some of the agitations emanating from lack of effective fiscal federalism, like youth restiveness should be minimized and grant to non viable minority group is paramount to empower them where necessary.
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RIGHT TO LIFE AND DEFENCE OF PROPERTY IN NIGERIA: THE CHILD’S RIGHT ACT IN FOCUS* Abstract The beginning of life is the beginning of rights and the end of existence, the end of rights. Every human being, irrespective of his age is entitled to live and many other rights of man are contingent upon this right. Against this backdrop, life has been recognized both morally and legally as primordial, fundamental and supreme in the ranking of rights that its violation is met with the stiffest punishment, death in Nigeria. Despite its sacrosanctity, the law permits certain derogations from this right such as in defence of property regardless of age of the victim of this defence. This article understudied the implication of deprivation of life in private defence of property in relation to the child. It is observed that the principal law on the rights of the Child in Nigeria recognized killing in defence of property. The article recommended that section 33 of the Constitution of the Federal Republic of Nigeria and section 3 of the Child’s right Act to the extent that they permit derogation from the child’s right to life in defence of property be abolished.
Keywords: Right, Right to life, Property, Defence, Defence to Property and Child
1. Introduction The sacrosanctity of life cannot be over-emphasized. The right to life is superfluously provided in international, regional and domestic legal instruments ranging from the Universal Declaration on Human Rights1, International Covenant on Civil and Political Rights,2 Convention on the Rights of the Child3, the African Charter of Human and Peoples’ Rights,4 African Charter on the Rights and Welfare of the Child,5 and section 33 of the Constitution of the Federal Republic of Nigeria,6 adopted by the Child’s Right Act7 etc. The child’s right to life under the international law appears to be absolute. Unfortunately, unlike the CRC which it claims to replicate, the CRA does not expressly provide for the Child’s right to life but rather adopted the Chapter IV provisions of the Constitution which contains the right to life amongst other fundamental rights subject to legally recognized derogations. One of such constitutionally approved limitations is killing in defence of property. This defence can be made against any person including the child. Three questions that arise are: (1) whether there can ever be circumstances where property becomes more valuable than the child’s life (2) whether defence of property is sufficient ground to warrant a deprivation of the child’s life and (3) whether the killing of the child in defence of property is in the best interest of the child.
2. The Concept of Right There's no unanimity in the definition of right but legal instruments usually contain lists of rights which are supposed to promote, secure and protect persons recognised by these instruments as
* Linda Amarachi OTI-ONYEMA, LLM, BL., LLB, Lecturer Faculty of Law, Nnamdi Azikiwe University, Awka, Anambra State. Email address: [email protected] 1Article 3 2Adopted by the General Assembly of the United Nations on 19 December 1966, Article 6. 3 Herein referred to ‘CRC’; adopted by General Assembly resolution 44/25 of 20 November 1989 and entered into force 2 September 1990 4Adopted in Nairobi June 27, 1981. Entered into Force October 21, 1986 5 1990 6 1999 Cap. C 23 Laws of Federation, 2004.Herein referred to as ‘Constitution’. 7Herein referred to as ‘CRA’. Page | 49
OTI-ONYEMA: Right to Life And Defence of Property in Nigeria: The Child’s Right Act in Focus beneficiaries of these rights. There are so many theories on the definition of right which are outside the scope of this research as they are usually dealt with under Human Rights Law. Nevertheless, for the purpose of this study, some definitions offered by some scholars shall be considered. According to Justice Oputa of the blessed memory: a right in its most general sense is either the liberty (protected by law) of acting or abstaining from acting in a certain manner, or the power (enforced by law) compelling a specific person to do or abstain from doing a particular thing. A legal right is thus the capacity residing in one man of controlling, with the assent or assistance of the state, the actions of others
In the context of human rights, Osita Eze defines rights to ‘represent demand or claims which individuals or groups make on society, some of which are protected by law and have become part of the Lexlata while others remain aspirations to be attained in future’.8This definition is seen in the dichotomy created by the Constitution between fundamental rights under Chapter IV of the Constitution and the Fundamentals Objectives and Directive Principles of State Policy under Chapter II of the Constitution. For Cranston, however, a right is ‘something of which no one may be deprived without a great affront to justice. There are certain deeds which should never be done, certain freedoms which should never be invaded, some things which are suppressively sacred’.9In Afolayan v Ogunride,10right was defined as ‘an interest recognised and protected by law.’ In Uwaifo v A-G.Bendel State &ors,11the Supreme Court held that ‘a legal right is any advantage or benefit conferred upon a person by a rule of law’.
Rights of the child are therefore powers, interests or benefits inherent in a person by virtue of being firstly a human being and secondly a child which are enforceable by law. The corollary of right is duty. As rightly observed by Oputa, every right involves a person invested with the right and persons on whom that right imposes a correlative duty or obligation. For Raz, a right exists when an aspect of a person’s well-being is sufficient reason for holding some other person or persons to be under a duty.12
3. Who is a Child? The concept of child is one fraught with divergence of definitions. According to Philippe, conceptions of childhood have varied across centuries.13 The very notion of a child is both historically and culturally conditioned subject to the philosophical interests or idiosyncrasies of scholars and the provisions of the different legal instruments protecting the rights of a child.14 After analysing the difficulty of defining a child, Cohen J in Re Carton15 said that the meaning of the word, ‘child’ must in every case depend on the context in which it appears. Despite being arbitrary, it is important to arrive either at the definition of a child or earmark possible boundaries of
8 O. Eze, Human Rights in Africa: Some Selected Problems (Macmillan Publishers, 1982), p.5 9 M. Cranston, ‘Human Rights Real and Supposed’, in D D Raphael, Political Theory and the Rights of Man, (Bloomington: Indiana University Press, 1967), p. 52 10 (1990) 1NWLR(PT.127)369 at 391 11 (1982) 7 S. C.124 at 273 12 J. Raz, the Morality of Freedom, (Oxford, 1986), p. 116 13 P Aries , Centuries of Childhood, (England, Penguin Books, Harmondsworth, Middlesex,1962) 14Ibid. 15 (1945) Ch. 372 Page | 50
AJLHR 3 (2) 2019 childhood as children benefit from additional rights which are only applicable at childhood. The Black’s Law Dictionary16 defines a child to be a ‘person under the age of majority. The dictionary however, did not define age of majority. In legal parlance, who a child is, is determined by the age of the person being considered as a child. The term child may refer to anyone below the age of majority. Laws both international and domestic have laid down different minimum age below which a person is referred to as a child. The definition of a child is, therefore, made 'dependent on each respective legal system in order to accommodate the different economic, social, political, cultural and legal systems of the respective state'.17
Generally, under international law, there appears to be a consensus that a child is a person under the age of 18years.18Beyond ratifying the international legal instruments, Nigeria has domesticated the CRC by enacting the Child’s Rights Act of 2003.19 The Act in Section 277 provides that ‘child means a person under the age of eighteen years’. For the purpose of this discourse, we would make use of the definition contained in the CRA herein considered.
4. Right to Life under the Child’s Right Act The right to life is the foundation of all human rights. The duty to respect the sanctity of human life has been long preached by all and sundry. Philosophers like St Thomas Aquinas admonishes that human life should be regarded as sacred and God-given.20 The right to life is so fundamental that an attempt to commit suicide in some jurisdictions is considered a crime.21 On 31st December, 2018, a25- year-old Ifeanyi Ugokwe was imprisoned in Nigerian for trying to take his own life due to hunger and unemployment.22The content of the right to life cannot be pinned to one easily delineated sphere; it encompasses a wide variety of other rights which are dependent on the existence of life for their enjoyment; it is the nucleus of all other rights.23 The value placed on a child’s life is evident in the various legal instruments on the child’s rights, some of which grant an absolute right to live to the child while others permit its denial in certain exceptional circumstances. The Convention on the Rights of the Child from which the CRA drew its existence recognises the child’s innate and unrestricted right to live. Article 6(1) of the Convention provides that ‘parties recognize that every child has the inherent right to life’. In the same vein, Article 5 of the African Charter on the Welfare of the Child which is the regional instrument regulating the treatment of the child in Africa, provides that ‘every child has a right to live’. This is in tandem with Article 3 of the Universal Declaration of Human Rights. Unlike the CRC and the Charter aforementioned, no specific mention was made of the child’s right to life under the CRA, albeit it provided for the right to survival and development which impliedly is founded on life. Continuity in life is dependent firstly, on the right to live. It is unclear as to the reason the CRA omitted the right to live and
16 8th Edition 17 2003 18Article 1 of the Convention on the Rights of the Child, (CRC); African Charter on the Rights and Welfare of the Child, 1990 and Article 3(d) of the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organised Crime, 2000 19 Cap C50 LFN, 2004 20Ibid. 21See Section 327 of the Criminal Code Act 22A O Enabulele, ‘The Right to Life or The Right to Compensation Upon Death: Perspectives On an Inclusive Understanding Of The Constitutional Right To Life In Nigeria’, (2014) Afe Babalola University: Journal Of Sustainable Development Law and Policy, p.101 23Ibid, p.102 Page | 51
OTI-ONYEMA: Right to Life And Defence of Property in Nigeria: The Child’s Right Act in Focus separated it from the right to survive both of which were lumped together in the CRC. Speculatively, the makers of the CRA may have found it needless to repeat the right to life which it earlier recognized by the adoption of Chapter IV provisions of the Constitution.24Section 3 of the CRA provides thus: (1) The provisions in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999, or any successive constitutional provisions relating to Fundamental Rights, shall apply as if those provisions are expressly stated in this Act. (2) In addition to the rights guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, or under any successive constitutional provisions, every child has the rights set out in this Part of the Act.
It is crystal clear from the above provision that the Child’s right to life in Nigeria is as enshrined in the Constitution. Specifically, section 33 of the Constitution which falls under Chapter IV of the Constitution provides for the right to life as follows: 33. (1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria. (2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary - (a) for the defence of any person from unlawful violence or for the defence of property: (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or (c) for the purpose of suppressing a riot, insurrection or mutiny The right to life and the attendant derogations both apply to the child.
5. Right to Property The concept of property according to Joseph must be understood as both contingent and contextual.25 Property has been described as that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.26
24There are other rights repeated in the CRA which are contained in chapter IV of the Constitution e.g. freedom from discrimination and right to private life. 25J W Singer, Property and Social Relations: From Title to Entitlement, in PROPERTY AND VALUES: ALTERNATIVES TO PUBLIC AND PRIVATE OWNERSHIP 3, 10 (CharlesGeisler& Gail Daneker eds., 2000).) 26J.W. Ehrlich, Erlich's Blackstone 113 in M. Diamond ,’The Meaning And Nature Of Property: Home ownership and Shared Equity In The Context Of Poverty’ 29 St. Louis U. Pub. L. Rev. 85-112 (2009) 85 Page | 52
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Property is mainly of two kinds, namely, corporeal, and incorporeal property27both of which are valuable rights in as much as they are legal rights recognized and enforced by law.28There is no definition of property in the Nigerian Constitution but by the provisions of section 44, one can safely state that the term is wide enough to accommodate all moveable and immoveable property. The Criminal Code does not also define the word ‘property’ butin Section 1, says that property ‘includes everything, animate or inanimate, capable of being the subject of ownership’ or capable of being stolen.29Section 12 of the Penal Code only defined ‘movable property’ to include corporeal property of every description except land and things attached to the earth or permanently fastened to anything which is attached to the earth. The right to property is conspicuously guaranteed in section 44 of the Constitution as one of the fundamental rights exercisable by Nigerian citizens. The section is reproduced hereunder: 44. (1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things …30
The importance of this right to property in Nigeria was reaffirmed by the provisions of section 33 of the Constitution, which justifies killing in defence of property. The right to defend one’s property and the right to own property are like two peas in a pod which cannot be separated.
6. Defence of Property and the Child’s Right to Life under the Child’s Right Act The word ‘defence’ literally means ‘resistance against attack’.31 Defense of property in law therefore means a legal justification for resistance usually with force, put up by a person to an attack on his property which exonerates him from criminal liability. This defence is available, if one harms or threatens another when defending one's property. Self defence or private defence has not been given a statutory definition in Nigeria but its recognition is not in doubt. The rule as to the right of self defence or right of private defence has been stated by Russell on Crime thus: …a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker such killing is justifiable.32
27 Corporeal property is the right of ownership in material things which are either moveable or immoveable, whereas, incorporeal property is any other proprietary right ‘in rem’ e.g. patent right, right of way. Corporeal property is always visible and tangible while incorporeal property is not. 28‘Property’, https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/8/08_chapter%206.pdf accessed on 26/5/2019 29 The word ‘inanimate’ include ‘a thing in action (or chose) in action. In Torkington v. Magee, Channel J. defined ‘chose (thing) in action’ as: ‘All personal rights of property which can only be claimed or enforced (taking legal) action and not by taking physical possession’ 30S. O. Bello &Ors v Ihuoma Doris (2016) LPELR-41298(CA) 31K Lambeth, Dismantling the Purported Right to Killing in Defence of Property, (2001) Southern Cross University Law Review, Volume 5 , p.96 32W O Russell, Russell on Crime, 11th Edition Vol. 1 (Stevens & Son Ltd , 1958) p. 491 Page | 53
OTI-ONYEMA: Right to Life And Defence of Property in Nigeria: The Child’s Right Act in Focus
The adoption of the Chapter IV provisions of the Constitution by the CRA places the child on the same pedestal with adults in the enjoyments or deprivation of the rights provided therein. It is common knowledge that right to life under section 33 of the Constitution is not absolute. It is subject to derogations permissible under that section. Thus, a person’s right to life can be denied in execution of sentence of a court in criminal offences where he has been found guilty33; for defence of another person or for defence of property; in order to effect a lawful arrest or to prevent his escape from lawful detention; or for the purpose of suppressing a riot, insurrection or mutiny.34 This article is limited to the second part of subsection (2) (b) on killing in defence of property. Right to defend one’s property is a constitutional right and as such enjoys the same status with the right to life. Sometimes, it even enjoys higher value than the right to life particularly where homicide is justified in defence of property. However, where death results in the exercise of a person’s right to life, he must prove that the use of force is to such extent permissible by law and the force is reasonably necessary, before he can take advantage of the right.35The right to defence of property is therefore, not arbitrary. In determining the extent of force permissible in such defence, recourse shall be had to our criminal laws. In line with the proviso (a) of section 33 of the Constitution, the Criminal and Penal Codes have provided circumstances where the defence would apply. By Section 282 of the Criminal Code, it is lawful for any person who is in peaceable possession of a dwelling-house, and for any person lawfully assisting him or acting by his authority, to use such force as he believes, on reasonable grounds, to be necessary in order to prevent the forcible breaking and entering of the dwelling-house, either by night or day, by any person whom he believes, on reasonable grounds, to be attempting to break and enter the dwelling- house with intent to commit a felony or misdemeanour therein.
Invariably, a successful plea of defence to property under this provision requires the following: a. the property being defended must be a dwelling house. It presupposes that all other property are excluded from this legal defence. A dwelling house means a residential building or structure which may not necessarily be in regular occupation of its owner, family, his tenants or servants.36 Where the house is not for residence, it becomes an offence
33By section 368 (3) of the Criminal Procedure Act Cap C41, LFN, 2004, a child’s right to life cannot not be deprived in execution of a death sentence as the court does not have the power to pronounce death sentence on a child below the age of seventeen (17) years in states where the Criminal Procedure Act (CPA) still applies. A similar provision is contained in section 405 of Administration of Criminal Justice Act (ACJA), 2015. There is a general misconception that the above provisions of the CPA and by extension the ACJA are inconsistent with section 33(1) of the Constitution. It is my view that there is no such inconsistency. The Constitution talks about execution of the sentence of a court in criminal offences and not the sentencing itself. The deprivation of the right to life under the constitution can only be done when the court has sentenced a person to death and that sentence is to be carried into effect. The constitution is therefore not bothered about who can be sentenced to death by a court of law or how such sentence should be made but with the legality or lawfulness of execution of the sentence once made by the court. Consequently, it is only when the sentence is to be executed that this derogatory provision can be invoked. But the CPA and ACJA on the other hand deal with persons over whom the court has the power to sentence to death except the child. If the CPA had provided that a child who has been sentenced to death cannot be executed, that would have been inconsistent with the Constitution but that is not the case here. 34 See Section 33(1), (2)(a) & (b) 35Ibid. 36 See Section 1(1) of the Criminal Code Page | 54
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punishable with death, if the use of force against attack on a property results in homicide. The defendant does not need to be the owner of the dwelling house. It is sufficient if he has a relationship with the owner or he is occupying the house with his consent or authority.37 The occupation must be lawful: peaceable and not forcible. The case of Ibator& 2 Ors v Barakuro& 3 Ors38is instructive where the Apex Court held that, it is possible for a tenant or an occupier of a parcel of land to successfully claim damages for his properties, including farm corps, damaged on the land. He needs not prove title to such land before he could succeed. This defence is not available to a trespasser who in a bid to defend the dwelling house kills the true owner of the house. In Salami v Lawal39 the court further held that a person in possession can commence or maintain an action in trespass against any person other than the person who can establish better title.
b. the defendant must believe on reasonable grounds that the force used in the defence is necessary. What is necessary is a question of fact. It has long been accepted that the accused may only use such force as is reasonable in the circumstances. In R v. Ebi40, the Western Court of appeal found that a crowd of rioters threw stones at the defendant’s house which had been almost completely destroyed by them the day before. The defendant reacted by firing back killing one person. The court acquitted the defendant on the ground that the defence in section282 had been made out as there were reasonable grounds for the defendant to believe that the rioters were attempting to break and enter into his house to commit further damage to it.
The general rule is that response must be proportionate to the attack and not excessive.Section 298 of the Criminal Code which codifies the concept of excessive provides: ‘any person authorised by law to use force iscriminally responsible for any excess, according to the nature and quality of the act which constitutes the excess’ .
In State v Emmunu41, the accused shot and killed the deceased whose action, by putting his hand in his pocket frightened him, the court rejected the plea of self-defence on the ground that the accused’s action was unwarranted in the circumstances.
c. The sole aim of the use of force must be to prevent attempt or forcible breaking and entering of the dwelling-house, either by night or day, by any person (including the child).
d. The defendant must also believe on reasonable grounds that the person against whom he applied force has intent to commit a felony or misdemeanour therein. There is however, no specification as to the type of felony or misdemeanour intended.
37Possession of property or parcel of land means the occupation or physical control of the property or parcel of land either personally or through an agent or servant of the claimant. 38(2007) 4 SCNJ 27 39 (2008) 6-7 S. C. (PT. II) 242 40 (1936) 3 WACA 36 41 (1968) NWLR at page 15 Page | 55
OTI-ONYEMA: Right to Life And Defence of Property in Nigeria: The Child’s Right Act in Focus
e. The defence is only available to any person who is in peaceable possession of a dwelling- house, and for any person lawfully assisting him or acting by his authority.
In the Northern part of the Country, the right of private defence is provided in Section 60(b) of the Penal Code as follows: 60. Every person has a right subject to the restrictions hereinafter contained, to defend (b) the property whether movable or immovable of himself or of any other person against any act, which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass or which is an attempt to commit theft, robbery mischief or criminal trespass.
The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.42 There is also no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.43By virtue of section 66 of the Penal code, however, killing in defence of property is only justifiable where: a. the offence being resisted is robbery; house-breaking at night (i.e. burglary);mischief by fire committed on a dwelling house or a place where property is kept; theft; mischief; or house trespass. b. The act mentioned above must have reasonably caused apprehension of death or grievous harm. c. The resistance put up against the act must be such that is necessary to defend the property. d. There is no time to have recourse to the protection of the public authorities.
Private defence under the Penal code seems to place more value on life than its counterpart in the south. In defence of property under the Criminal Code, there need not have been apprehension of death to kill. It is sufficient to know that person being resisted possesses an intent to commit felony or as little as misdemeanour. It is noteworthy that under the Penal Code, how the defence is achieved is entirely at the discretion of the defendant, whether by use of force or otherwise. In the criminal Code the use of force is specified.
Generally, the guiding principles of defence of property are necessity and proportion. The two questions which ought to be posed and therefore answered before the trial court were: (1) on the evidence, was the defence necessary? (2) was the injury inflicted proportionate to the threat offered, or was it excessive? If however the threat offered is disproportionate with the force used in repelling it, and necessity of the occasion did not demand such a defence, then the defence cannot avail the accused. It is also trite that the defence is weakest where the position of the victim is weaker than that of the accused and hence the issue of self or private defence does not arise; the defence will also not be available.44The legal right to kill in defence of property cannot be made dependent upon the temperament or phlegmatic nature of the individual killer.45 The court does not consider the susceptibilities of the accused. For those who claim to have exercised this legal right to kill, the law insists upon one standard. It is the standard of a reasonable man. The test is objective and not subjective. It therefore must be that of a reasonable man and the act which resulted in the killing
42 Section 62 of the Penal Code 43 Section 63 of the Penal Code 44 See Per C.B Ogunbiyi JSC, in Adeyeye v The State. See also R v. Onyeamaizu (1958) N.R.L.R 93 45Ibid. Page | 56
AJLHR 3 (2) 2019 ought to be the reaction of a reasonable person places in similar situation’.46 This objective standard seems to be contrary to the statutory provisions in the South. The criminal Code provides that defendant must believe that the force used by the defendant is necessary. He must also believe that the person against whom he is protecting his property. Beliefs are generally personal to an individual, thus the test should be subjective.
Having stated the position of the law on defence of property, there is no gainsaying the fact that a child’s life under the Constitution and relevant criminal laws considered, can be deprived of in defence of property and such deprivation is justifiable. The major concern, however, is whether the law permitting the killing of a child in defence of property should be retained. Is it proper to deprive the right to life of a child in defence of property? Under the Criminal code, it is unfortunate that a person’s life can be taken merely because he intended to commit a crime without more. It is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is.47 This intent unfortunately has been left in the hands of the defendant to determine. This provision to say the least, makes the human life cheap and worthless particularly where a person’s life can be taken due to an intent to commit a misdemeanor. The provision of the Penal Code disallowing killing in defence of property except there is apprehension of death or grievous harm is commendable as an aggressor, by virtue of his conduct, forfeits his right to life. However, this should not be extended to the child.
From the extant laws, death penalty is inapplicable to the child even where he has been found guilty of murder. By Section 368 (3) of the Criminal Procedure Act (CPA)48, death sentence cannot be pronounced on a child below the age of seventeen (17) years who has been found guilty of a capital offence. Similarly, section 405 of the Administration of Criminal Justice Act (ACJA)49 which applies in the federal courts and states where it has been domesticated provides that a sentence of death should not be pronounced or recorded for a convict of a capital offence who had not attained the age of 18 years. If a child cannot be killed for killing another which appears to be the worst case scenario, why would he be justifiably killed in defence of property? Does it mean that our laws value property more than life? It is most regrettable that the Constitution in legalizing death in defence of property did not exempt the child from its application. Worst still, the Criminal Code by providing that the use of force can be against any person (which by implication includes a child) in order to prevent the forcible breaking and entering of the dwelling-house, makes the child’s right mythical.
Despite the anomalies in the Constitution and the Criminal Laws, the CRA, adopted the provisions of the Constitution on the child’s right to live without any modifications to exclude the child from being killed in defence of property. This is at variance with the international law position on the right of the child to life and a big snag in the enjoyment of the child’s right to life in Nigeria. By section 40 of the CRA, the Criminal Laws in the country are made applicable to the child only to the extent that their provisions that are favourable to the child. Impliedly, provisions that do not secure protection of the child are inapplicable to the child. Assuming reliance is placed on this section to exclude the child from being killed in defence of property as provided in the Criminal and
46Ibid. 47Brogden v Metropolitan Railway Company (1876–77) L.R. 2 App. Cas. 666 48 Cap C41, LFN, 2004 49 2015 Page | 57
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Penal Codes, what about the child’s right to secure his property and life by the same provision on self defence or private defence? Is it now permissible in law for one to pick and choose the part of a section of the law that favours him and abandon the part which is adverse to his interest? There is no such permission at least for now in our laws. Therefore, if the child can rely on private defence to kill, then he can also be killed in exercise of that right by another. More so, assuming the criminal laws on private defence are by section 40 of the CRA excluded from applying to the child, what about the constitutional provision on same defence which remains supreme over the CRA and every other legislation? It is submitted that this unwholesome adoption of the Chapter IV without modifications is the bane of realization of the right to life of the child. A sharp contrast from the Nigerian position on defence of property is the provision of Section 39 of Ghanaian Criminal Code50 on defence of property. By that a person is justified in the use of reasonable force necessary for the defence of property or possession, or for overcoming and obstruction to the exercise of any legal right but not to kill. The law only permits death in defence of a person not property in Ghana.51 There is no circumstance that justifies killing a person in Ghana for defence of property.
No doubt, property serves as a necessity to the well-being of man. In fact, there are property the loss of which could traumatize the lives of their owners. In that case, persons who do not possess strong emotional stability to bear such loss, could die as a result. However, on no account should property be made more valuable than human life to the extent that killing is justified just to preserve property, particularly in the case of a child. Property can be replaced but life is irreplaceable. If, however, the measures by which an aggressor pursues an attack on property constitute an attack on the person of the property-holder, defence of the person is engaged.
7. Conclusion The right of the child in Nigeria like every other citizen is not absolute. Circumstances have been listed under section 33 of the Constitution where the right can be denied which includes in defence of property. The Penal and Criminal Codes have both given tacit support to these constitutional provisions. Consequently, it is not only lawful but constitutional in Nigeria to kill in defence of property irrespective of whether the aggressor is a minor or a major. The CRA that would have been used to cure the defect in our laws on this defence, worsened the situation of the child by adopting Chapter IV of the Constitution in its entirety. It is recommended that the rationale for excluding the child from the applicability of death penalty be adopted and same be made applicable in defence of property to avert child mortality at the slightest opportunity. The position in Ghana should be adopted where killing in defence of property is totally outlawed. No reason is justifiable for taking the child’s life whose mental capacity and sense of judgment is immature to understand the consequences of his actions. A call is therefore made on our legislators to amend the constitution and our Criminal Laws to reflect this position. It is finally submitted that the Child’s Right Act should be reviewed to modify the provisions of Chapter IV of the Constitution to reflect the purpose of the Act which is to protect and secure the interest of the child. The Act should rather make an independent provision for an absolute right to life of the child than adopting the provisions of the Constitution which contain derogatory provisions that are not in the best interest of the child.
50Ghanian Criminal Code, 1960 51 See section 37 of Ghanaian Criminal Code, 1960 Page | 58
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THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: THE DICHOTOMY BETWEEN RHETORIC AND REALITY* Abstract The United Nations Convention on the Rights of the Child is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The Convention made elaborate provisions relating to the welfare of children but the utility of these provisions are tested during armed conflict when state parties abandon the covenants contained in the Convention and pursue military advantages to the detriment of the child. Being a human rights Convention, some argue that its operation is limited to peace situation and not during armed conflict. As such, there is a dichotomy between rhetoric and reality. The rhetoric is one of virtual world-wide acceptance and promotion of children’s rights through the medium of the United Nations Convention on the Rights of the Child, but the reality is one in which children are consistently subjected to the full brutality of war. The outstanding question is of course, how will better protection be given to children caught up in armed conflict? It is submitted that the present provisions of humanitarian law and the Convention of the Rights of the Child are not adequate and effective in offering protection to children. As part of our contribution towards effective protection of children at all times, we recommend measures inter alia, the adoption of a legal instrument with punitive sanctions designed specifically for protection of children applicable at all times especially during armed conflict.
Keywords: Child’s right, international humanitarian law, armed conflict.
1. Introduction The 19th century marked the start of children’s rights.1 The child began to be considered as a being in need of protection. For the first time in Europe, laws were passed governing child labour. Different legal texts progressively encouraged or made education obligatory for young children, and society recognized the fact that the child could not be dealt with in the same way as an adult. However, the history of children’s rights movement accelerated in the 20th century with the formation by the League of Nations in 1919. Five years later, it adopted the Geneva Declaration on the Rights of the Child, 1924, first international treaty on children’s rights, inspired by the work of Janusz Korczak, who is considered to be the father of children’s rights. The Declaration of the Rights of the Child, sometimes known as the Geneva Declaration of the Rights of the Child, is an international document promoting child rights, adopted by the League of Nations in 1924, and adopted in an extended form by the United Nations in 1959 called ‘Declaration of the Rights of the Child.2The 1990 Convention on the Rights of the Child adopted first by 140 Countries3 was an improvement of the two earlier Conventions, the 1924 Convention and the 1959 Declaration and this is seen as stated in the preamble of the 1990 Convention of the Rights of the Child thus: Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the
* Vitus Mazi UDEGBULEM, LL.B, BL, LL.M, PhD Candidate, Faculty of Law, Nnamdi Azikiwe University, Awka, Anambra State. Lecturer, Faculty of Law, Imo State University, Owerri, Imo State. Email: [email protected] 1 The climax was the adoption of the United Nations Convention on the Right of the Child in 1989 1.History of the Rights of the Child. Available on https://bice.org/en/history-rights-child/ accessed on 25 May, 2019 2.Available onhttps://en.wikipedia.org/wiki/Declaration_of_the_Rights_of_the_Child.Accessed on 18 October 2018. 3 See Unicef Action Index.Available on https://www.unicef.org/crc/index_action.html accessed on 18 October, 2018. Page | 59
UDEGBULEM: The United Nations Convention on the Rights of the Child: The Dichotomy Between Rhetoric and Reality International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children.
Following the Second World War, the history of children’s rights underwent several key stages following the creation of the United Nations. Because of the horror experience of the World War II, the international Community agreed on a human rights document which followed the adoption in 1948, of Universal Declaration of Human Rights, which amongst other thing stipulates that motherhood and childhood are entitled to special care and assistance. It was in the same year that BICE4 was created. By 1959, the UN adopted the Declaration of the Rights of the Child, which recognized the child as a subject of rights. The Convention5 was unanimously adopted by the United Nations General Assembly but it came into effect the following year in accordance with Article 49 of the Convention.
The 21st century saw a renewed movement towards an effective application of children’s rights. The international community in 2000 in a bid to strengthen the application of the Convention of the Rights of the Child, adopted two additional protocols on the sale of children, child prostitution and child pornography, and child involvement in armed conflicts. It also adopted the third optional protocol, introducing a mechanism by which children may submit complaints to the Committee on the Rights of the Child in 2011, and in 2014, during the 25th anniversary of the 1989 Convention. So far, 193 member states of the UN have ratified the Convention on the Right of the Child except the United States and Somalia. Since 1991, the UN Committee on the Rights of the Child has continued to monitor the implementation of the Convention of the Rights of the Child. The Nigeria Child’s Right Act of 2003 was Nigeria’s domestication of the Convention, as states parties were urged to respect and ensure implementation of the Convention. The United Nations Children’s Fund is another major Organ of the UN that promotes the welfare of the child. It was created by the Convention with fundamental mission being to promote the rights of every child, everywhere, in everything the organization does. UNICEF has global presence in nearly every country in the world and as result, it is able to reach places others cannot, and thus is uniquely positioned to make a difference in the lives of children. In advocating to protect children's rights, to help meet their basic needs, and to expand their opportunities to reach their full potential, UNICEF helps to strengthen laws and policies and to improve understanding of the Convention at all levels of society. UNICEF supports countries to ratify and implement the Convention and its Optional Protocols. UNICEF draws attention to the duties of governments, families, communities and individuals to respect those rights and provides support for them to do so.
2. Legal Protection Of Children Under the Convention on the Rights of Child During Armed Conflict It is our desire to appraise the protection of children as offered by the Convention on the Rights of the Child during armed hostilities. Before the analysis, it is important to state herein that the adoption of all the various Child Rights Conventions beginning with the 1924 Geneva Convention down to the
4 BICE means ‘Best Interest of the Child’ is an NGO fighting for the child protection worldwide available on https://bice.org>...>Discover BICE accessed on 19 October 2018. A Charter to protect the best interest of the child, BICE as an organization is devoted to the protection of children. BICE works to defend the dignity and human rights of children around the world. 5 On November 20, 1989 but it took effect on the 2nd of September, 1990 following the accession of the Convention by 20 member nations in accordance with article 49. Page | 60
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1990 Convention on the Rights of the Child and its Additional Protocols has not reduced the sufferings of children world-wide especially during armed conflict. It is submitted that the present provisions of humanitarian law and the Convention of the Rights of the Child are not adequate and effective in protecting children from the effects of armed conflict. This inadequacy was acknowledged by the 1990 World Summit for Children6 in New York which recognized the need to improve humanitarian law and urged the ‘acceptance and observation of the Convention of the Rights of the Child’, in particular, it urged ‘for a growing acceptance of the idea of special protection for children in time of war’. This was an admission of failure that the Conventions have not prevented mistreatment of Children especially during armed conflict. Though the UN Convention on the Rights of the Child contains its own provisions relating to armed conflict in Articles 38 and 39 of the Convention, it has not improved the protection of children because the language of the provisions were merely discretional, giving the state parties opportunity to decide what is feasible or not in the circumstance. For instance, Article 38 of the CRC provides that: ‘States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child. And by Art Article 38(4) it provides that: In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.
The rights contained in Article 38 are not innovative and, from a child right’s view, are extremely disappointing. Article 38(4) only requires States to take ‘all feasible’ measures to ensure protection and care of children who are affected by an armed conflict. It does not impose an absolute duty. According to Detrick,7 there were attempts to raise the level of protection beyond that provided by humanitarian law, but this prime opportunity to increase the level of protection and respect for children during armed conflict was, once again, lost to the need to achieve consensus and the view of certain states that the Convention was not a proper vehicle for rewriting international humanitarian law.8 Thus, the provisions in Article 38 represent the lowest common denominator. Both the Red Cross9 and UNICEF10 regarded article 38(4) as potentially offering less protection to children than
6 The United Nations World Summit for Children was held in the United Nations Headquarters in New York on 29-30th September, 1990. The Summit had the then largest ever gathering of the heads of states and government to commit to a set of goals to improve the well-being of Children worldwide by the year 2000. The Declaration of the Summit called on all Governments to promote earliest possible ratification and implementation of the Convention on the Rights of the Child. Available on https://www.unicef.org>wsc>plan accessed on 20 May, 2019. 7Detrick, ‘The United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires’ (1992), p.2. See also Krill ‘The Protection of Children in Armed Conflicts: And Legislative History of the Convention on the Rights of the Child’ Article 38 HR/1995/Ser.1/article 38, (1992), p 1. 8 The delegate for the USA stated that the text adopted reaffirmed existing international humanitarian law on the protection of children in armed conflict, in particular, by adhering to the language of article 77 of Protocol 1 of the Geneva Conventions. He stated that the language was the result of lengthy debates in the Diplomatic Conference convened during the last decade to draft the Protocols and that his Government did not believe that the Working Group was an appropriate forum to revise existing international law in this area. See UN Doc. E/CN.4/1989/48 para. 603 available on on hr.travaux.law.virgina.edu>crc>nid-713. Accessed on 25 May, 2019 9 E/CN.4/1987/WG.1/WP.4) ‘UN Human Rights Treaties.’ Available on hr.travaux.law.virgina.edu>crc>nid-713.Accessed on 5 December 2018. 10E/CN.4/1989/WG.1/CRP.1) UN Human Rights Treaties.Available on hr.travaux.law.virginia.edu>crc>nid-139.Accessed on 5 December 2018. Page | 61
UDEGBULEM: The United Nations Convention on the Rights of the Child: The Dichotomy Between Rhetoric and Reality that contained in the Fourth Geneva Convention and the Additional Protocols. The disappointment at the failure to grapple with the difficult question of improving protection for children in situations of armed conflict is reflected in the fact that the Committee on the Rights of the Child, recognizing the inadequacy of the provisions in Article 38, did make firm recommendations for additional protection of civilian and children in armed conflicts and recommended11 that a major UN study should be undertaken to consider their situation. The United Nations followed this recommendation with the appointment of Ms Graça Machel as the expert to head the study which was published in November 1996.12 Article 39 of the Convention did not advance any help towards the child. It provides for the after-effect rehabilitation of the child after suffering the effect of armed conflict thus is not an improvement of the Geneva Laws. It provides thus: State Parties shall take all appropriate measures to promote physical and psychological recovery and social re-integration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and re- integration shall take place in an environment which fosters the heath, self- respect and dignity of the child.
It should be noted that the Convention on the Right of the Child is a human rights treaty and thus applicable only during peace time. It does not apply ordinarily during armed conflict. It is international humanitarian law that applies during armed conflict. While human rights laws operate primarily in peace time, International humanitarian law applies only to armed conflict and seeks to regulate the relationship between adversaries. International humanitarian law is subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocols I and II. This however, does not mean that human rights such as Convention on the Right of the Child or Universal Declaration of Human Rights are suspended or inapplicable during armed conflicts but their enforcement and implementation may be affected by the realities of the war. In some cases, the state actors may suspend some provisions on human rights in the interest of national security. In fact, in most cases, human rights are applicable during armed conflict as individual rights are protected13. But there are derogations which we may now consider.
3. Derogation from the Convention in Situations of Armed Conflict The Convention on the Rights of the Child also contains general rights for children, including rights of protection, provision and participation. The full implementation of such rights during times of armed conflict would go a very considerable way to protecting children. Because the Convention is a human rights treaty as earlier noted, it is uncertain the status of the Convention once armed conflict erupts within a State. Some states14 argue that once there is armed conflict, that the provisions of the Convention are suspended. However, there is no reason why those States who have ratified the Convention should not continue to be bound by it in relation to all children within their jurisdiction. This is because Article 2 of the United Nations Convention on the Rights of the Child requires that ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child
11 The memorandum can be found in Annex V of the Committee on the Rights of the Child (UN Doc. CRC/C/16). 12 The Impact of Armed Conflict on Children: Report of the Expert of the Secretary-General, Ms. GraçaMachel submitted pursuant to General Assembly Resolution 48/157. 13 See the Advisory Opinion of the ICJ on the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 at para.25 14J. Doek, ‘The International Legal Framework for the Protection of Children in armed Conflict’’ available on www.oparationspaix.net>document(PDF) accessed on 26 May 2019. Page | 62
AJLHR 3 (2) 2019 within their jurisdiction without discrimination of any kind’. There is no provision in the Convention for derogation or for suspension of the Convention during armed conflict. Article 2 of the Convention is very clear that state parties shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind. However, the application of certain articles may be limited in certain circumstances. The right to leave the country for purposes of reunion with parents or loved ones15 to freedom of expression,16 to freedom of religion,17 to freedom of association and peaceful assembly18 can all be limited, as in other human rights instruments, on the basis of protection of national security, public order, public health, morals or the rights and freedoms of others.19 It is arguable that all provisions other than those which can expressly be restricted remain in force during war.
However, relying on Article 38(4), it is submitted according to some writers20 that it will be safe to say that only Article 38 applied in war-time situations and that other parts of the Convention are suspended. In other words, once armed conflict begins, the State ceases to be under an obligation to implement the other provisions of the United Nations Convention on the Rights of the Child except provisions contained in Article 38. This is a very big problem because most violations of the children’s right occur during armed conflict. Cohn in his submission on this issue points out that if all the articles on the protection and care of children do in fact apply at all times, the necessity for Article 38(4) may be doubted, and it is, therefore, not unreasonable to suppose that the drafters expected that the Convention on the Rights of the Child would be subject to derogation during armed conflict.21 But this view by Cohn is not shared by many human rights activist including members of the Committee on the Rights of the Child, who hold the view that the whole Convention continues to apply in times of armed conflict or emergency.22 It was Hammarberg,23 a member of the Committee on the Rights of the Child, who stated that:
15 Article 10 of the CRC 16 Article 13 provides that Children have the right to get and share information, as long as the information is not damaging to them or others. In exercising the right to freedom of expression, children have the responsibility to also respect the rights, freedoms and reputations of others. The freedom of expression includes the right to share information in any way they choose, including by talking, drawing or writing. 17Article 14.Under Article 14. Children have the right to think and believe what they want and to practice their religion, as long as they are not stopping other people from enjoying their rights. Parents should help guide their children in these matters. The Convention respects the rights and duties of parents in providing religious and moral guidance to their children. Religious groups around the world have expressed support for the Convention, which indicates that it in no way prevents parents from bringing their children up within a religious tradition. At the same time, the Convention recognizes that as children mature and are able to form their own views, some may question certain religious practices or cultural traditions. The Convention supports children's right to examine their beliefs, but it also states that their right to express their beliefs implies respect for the rights and freedoms of others. 18Article 15. Under Article 15, Children have the right to meet together and to join groups and organizations, as long as it does not stop other people from enjoying their rights. In exercising their rights, children have the responsibility to respect the rights, freedoms and reputations of others. 19 Just as section 45 of the 1999 Constitution of Nigeria provides for the powers of the state to suspend or withdraw some of the rights provided in chapter 2 of the Constitution. 20. Ilene Cohn, The Convention on the Rights of the Child: What it means to Children in armed Conflict’ (1991) available on https://academic.oup.com>ijrl>article. Accessed on 19 October 2018.. 21 Ilene Cohn, Ibid 22 See UN Doc. CRC/C/SR.90 (1994) 23 Being a Keynote Speech by Thomas Hammerberg delivered at the International Conference on the Rights of children in Armed Conflict titled ‘Children as a Zone of Peace’ what needs to be Done’ in Aldrich and Van Baarda(eds), 1994, available on shodhganga.inflibnet.ac.in>bitstream. Accessed on 19 October 2018.
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UDEGBULEM: The United Nations Convention on the Rights of the Child: The Dichotomy Between Rhetoric and Reality Article 38 specifically addresses the situation of children in armed conflicts, however all other articles of the Convention are relevant. In fact there is no derogation clause in this Convention, it applies in its entirety also in times of war or emergency. The child has a right to a family environment, to go to school, to play, to get health care and adequate nutrition - also during the armed conflict. The principles of the Convention are valid as well: that all children without discrimination should enjoy their rights, that the best interests of the child be a primary consideration in decisions, that the right to life, survival and development be protected.
This argument only helps to provide belligerent parties with reasons or justification to evade implementation of the Convention and to justify their violation of same. The present language of Article 38(4) is not encouraging regarding international protection of children and this argument makes the whole situation worse. It is submitted that a review of this particular article is necessary as well as a clear language prescribing the universal application of the entire Convention during armed conflict.
4. Other issues affecting the implementation of the Convention on the Rights of the Child Apart from the derogation noted above and the imprecise language of Article 38 of the Convention, the implementation of the Convention on the Rights of the Child faces many other problems. In many internal armed conflicts for example, the State if it continues to exist at all, only does so in a muted form: although the state may technically retain control over territory, the infrastructure and organization of the state may have all but disappeared and the ability to implement the Convention may be non-existent. This is the situation in Somalia since 1991. This is the present situation in Syria and Yemen where armed conflicts have been going on in the last few years. In Syria, the state lost control of many territories and even those under its control lacks basic infrastructure and organizational ability to provide basic amenities for the civilian population. In Yemen, the international recognized Interim National Government led by Abdul Mansur fled the capital Sanai and lives in Riyad, Saudi Arabia. The Houthirebels backed by Iran are in control of the capital and some parts of Yemen. All routes for the delivery of aid materials to civilian caught up in the civil war remained blocked by the warring parties. In the current circumstances in Syria and Yemen, the least concern of the warring parties is the advancement of military tactics to win the war instead of implementation of the Convention on the Rights of Child. In such instances, only humanitarian law exists in reality to fill the void. It may, in reality, if its provisions are implemented, be the only practical form of protection that covers children in such circumstances.
Another problem of implementation is as it concerns non-state entities. In many internal conflicts, a state may lose control over a particular area of its territory to an armed group. The armed group now in control of the territory is not bound by the UN Convention on the Rights of the Child as, currently, the United Nations Convention on the Rights of the Child refers to ‘State Parties’, so that only formally recognized governments may accede to the Treaty. However, just as non-state entities who are parties to a conflict may declare their intention to accept and apply humanitarian legal principles, the Committee on the Rights of the Child should consider the adoption of mechanisms that would allow non-state entities in de facto control of territories to make declaration that they regard
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AJLHR 3 (2) 2019 themselves as bound by the UN Convention on the Rights of the Child.24 What of non state actors who has been declared to be terrorist organization? Will the international community accept their declaration to respect the provisions of the Convention25? There is urgent need for a legal machinery to give effect to such ratifications and Declarations.
Another major challenge against the implementation of the Convention on the Right of The Child is the argument by some people that the Convention on the Rights of the Child, as a human rights instrument, has no place in times of armed conflict. Cohn represents a chunk of these writers.26 This is quite understandable because human rights laws operate primarily in peace time while international humanitarian law apply only to armed conflict and seek to regulate the relationship between adversaries and persons who are not participating in the conflict especially women and children. It therefore does not cover internal tensions or disturbances such as isolated acts of violence. International Humanitarian Law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting. However, an individual does not cease to have basic rights once an armed conflict begins. Moreover, human rights treaties continue to be applicable even if derogations may be permitted. In the light of the above, it is hard to see how one could seriously argue that the rights envisioned in the United Nations Convention on the Rights of the Child unilaterally come to an end with the outbreak of hostilities.
State Parties failed to remedy these deficiencies in the protection of children during armed conflict, an opportunity lost even with the two additional Protocols. The United Nations Convention on the Rights of the Child, it might be argued, has advanced respect for humanitarian law to a small degree. Even if a state has not acceded to or ratified the Fourth Geneva Convention or the Protocols, it might nevertheless be bound to observe the humanitarian law provisions as a result of Article 38. However, Article 38(4) provides that States Parties undertake to respect and ensure respect for rules of international humanitarian law applicable to them in times of armed conflict. The International Committee of the Red Cross has argued that Article 38 of the Convention on the Rights of the Child threatens to undermine humanitarian law because many provisions in the Geneva Conventions and the Protocols designed to protect children lay down absolute obligations as opposed to calling for feasible measures to be taken and thus stronger and provide more protection for children.27
However, it is to be noted that Article 41 of the Convention appear to have provided a succor to the provisions of Article 38 by providing that nothing in this Convention shall affect any provisions that are more conducive to the realization of the rights of the Child and that may be contained in the law of a state party or international law in force for that state. It therefore follows that if there are strong and mandatory provisions on the protection of children during armed conflict which are stronger than Article 38, irrespective of the instrument in which the provision is found, it shall apply notwithstanding Article 38.
18.The Palestinian Authority is not a nation state but has been allowed to sign most of the UN Treaties including the Convention on the Rights of the Child which it signed in 1995. 25The Machel Report recommends that non-state entities be urged to make a formal statement accepting and agreeing to implement the standards contained in the Convention on the Rights of the Child. As a result, in 1995, in Sudan, several combatant groups became the first non-state entities to commit to abide by the provisions of the Convention on the Rights of the Child. 26 Ilene Cohn, Op. cit, footnote 20. 27 Guiding Principle for the Domestic Implementation of a Comprehensive System of Protection for Children Associated with Armed Forces or Armed Group. Available on https://www.icrc.org>download>filePDF accessed on 26 May 2019. Page | 65
UDEGBULEM: The United Nations Convention on the Rights of the Child: The Dichotomy Between Rhetoric and Reality 5. Towards an Effective Protection of Children during Armed Conflict In the horrifying new face of armed conflict, the challenge for the international community today is to meet the changing nature of armed conflict. In particular, international law has the potential to create real protection for children and mitigate their suffering. While no system of law can ever eradicate the hardship of war, it is submitted that international law could be changed to enhance protection. To this end, it is submitted that ‘protection’ under humanitarian law should cease to be a term of art; rather it should amount to the level of protection for children envisioned in the United Nations Convention on the Rights of the Child. However, because humanitarian law represents a practical compromise between humanitarian and military considerations, the military will always rationalize disregard for humanitarian law by the claim that its demands are unreasonable and were not developed with the realities of war in mind. This argument is wrong and remains invalid. Not only was humanitarian law developed specifically with the brutality of armed conflict in mind, but it has always sought to accommodate military necessity, even at the expense of humanitarian considerations. Article 38(4) readily comes in mind where states parties were urged to take all feasible measures to ensure protection and care of children who are affected by an armed conflict.
The task of protecting children in armed conflict must therefore begin with the overall protection of the civilian population. The civilian population at large must be protected from the effects of armed conflict as provided for under humanitarian law because the civilian population is the ones taking care of the children. If they are displaced by war, invariably, the children will be affected. It is therefore submitted that the most effective way to improve the protection of children under humanitarian law is to improve compliance with its provisions dealing with protection of the civilian population. And to provide effective enforcement and deterrent mechanism for individual and state actors who violate the Conventions. To that end, its applicability should be simplified, expanded and opened to adjudication, and its enforcement mechanisms should be strengthened.
The issue of ratification of international treaties by member states should be encouraged once agreement is reached particularly regarding protection of children For instance, during the gulf crises in 1991, it was reported that both the United States, France, Italy and Iraq are yet to ratify the fourth Geneva Convention and its Additional Protocols28. But since most states has ratified the Convention on the Rights of the Child, it is our submission that all States should abide by their obligations ‘to respect and to ensure respect’ for the Fourth Geneva Convention and its Additional Protocols.29 As regards international conflicts, States should respect their Fourth Geneva Convention ‘obligation to search for persons alleged to have committed, or to have ordered to have committed, such grave breaches,’ and to "bring such persons, regardless of their nationality, before its own courts.30 The obligation of compulsory universal jurisdiction in relation to grave breaches should become a reality rather than merely a subject for lectures on the law of armed conflict.
The paper therefore calls for advancement of children’s best interests at all circumstances especially during armed conflict. If this is done, it will be clear that children deserve the highest level of
28Convention on the Right of the Child: (CRC) American SPCC. Italy and France only ratified the Optional Protocol to the Convention On the Rights of the Child recently in February, 2016. The United States is yet to ratify the Convention. It is said that US ratification of the Convention will catalyze a comprehensive review of the federal law, state law and policies in the United States. Available on https://americanspcc.org>the –convention-on-the right-of-the -child 29 See Article 1 of the Fourth Geneva Convention 30 See Article 146 of the Fourth Geneva Convention Page | 66
AJLHR 3 (2) 2019 protection possible under international humanitarian law. If one considers the law in its present form from the perspective of the child’s best interests, the distinction between protection offered in international conflict and that offered in internal conflict is unjustifiable. Consequently, a set of legally binding provisions relating to the protection of children and civilians in all situations of armed conflict should be drawn up and considered. Given that any amendments to current humanitarian law will require ratification by States before they are binding, it is therefore the position of this paper that customary international law in the area of armed conflict, and specifically non-international armed conflict, be explicated and reaffirmed by the international community.
The paper also recommend the establishment of a permanent international court which should be vested with jurisdiction to deal with all forms of breaches of international humanitarian law in both international and non-international conflicts, particularly breaches concerning the rights of children. Because of the imprecise nature of the language used in Article 38 regarding state responsibility, it is submitted that the international community should take an opportunity to state clearly that the Convention on the Rights of the Child continues to apply to all children within a State’s jurisdiction at all times and in all circumstances. It should also be made clear that no derogations are permitted other than those stated in the Convention itself. The international community should also re-examine Article 38(4) and declare what is expected of States, if possible to also reconsider the use of the word ‘feasible’ with a view to an amendment with a stronger and more precise term. Finally it is important to put in place a machinery to allow non-state entities in de facto control of territory to declare their intention of being bound by the United Nations Convention on the Rights of the Child and a machinery to examine the extent of a non-state entity’s compliance with the Convention in the same way as that of a State Party should be established.
6. Conclusion In international law today, the philosophy of humanitarian law is not that of children’s rights, nor was it ever intended to be so. As was noted in the course of this paper, it was a compromise between humanitarian needs and military compromise. Despite the provisions of Article 3 of the United Nations Convention on the Rights of the Child which requires that in all actions concerning children, whether undertaken by public or private social welfare institution, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’, this guiding principle of ‘best interests’ of the child does not find a place in humanitarian law during armed conflict. Article 38 that specifically provides for duties of state actors towards children during armed conflict did not use a mandatory language but rather ‘urges States Parties to take all feasible measures to ensure protection and care of children who are affected by an armed conflict’ meaning that when it is not feasible, the state parties should simple ignore the provisions of the Convention. It is thus submitted that the protection offered children under the Convention is more of rhetoric than achievable reality. The level of sufferings and grave breaches of human rights been suffered by children in armed conflict supports the call for a review of Article 38 of the Convention and for the international community to articulate a comprehensive legal machinery for the protection of children irrespective of the circumstance, and to establish an international mechanism for responsibility of both state and non- state actors for violation of international humanitarian laws and Convention on the Right of the Child. It is by so doing that the protection of Children during armed conflict will become a reality.
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LOW REPORTING OF RAPE CASES IN NIGERIA: CHALLENGES AND PROSPECTS* Abstract There is an escalating wave of rape in Nigeria. The media is regularly flooded with cases of rape all over the country. However, many sexual assault incidences in Nigeria are not reported to the relevant authorities for redress. It is terrifying that 50 to 90 percent of all rapes or attempted rapes are unreported. Most of the incest and molestation are never reported. Rape cases are not reported due to social stigma and prejudice against victims, blaming of victims, rape by acquaintances and relations, traumatization of victims, insensitive and dismissive attitude of police and difficulty in successfully prosecuting rape cases and low conviction rate. Many of the cases are thrown away in the law courts because of lack of evidence and distortion of evidence by law enforcement agents and inadequate exhibits for prosecution. This paper examined the problem of low reporting of rape cases in Nigeria and the factors responsible for underreporting of cases of sexual assault. This paper recommends for legal reforms, establishment of Sexual Assault Referral Centers (SARCS), orientation to stop victim blaming, and specialized training of institutional personnel. This is imperative to deal with the problem of low reporting of rape cases in a holistic way and ensure a safer and better society.
Keywords: Rape cases, Low Reporting, Challenges, Prospects
1. Introduction Rape is any act of non-consensual sexual penetration. Rape can include vaginal intercourse, anal intercourse, oral sex or penetration with any object or body part. Any degree of penetration is sufficient to constitute rape.1Rape can further be defined as unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with force, by a sex organ, other body part, or foreign object, without the consent of the victim.2The Criminal Code3 defines rape as: Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act, in case of a married woman, by personating her husband is guilty of an offence called rape.
In the Criminal Code,4 punishment for rape is life imprisonment or 14 years imprisonment. The Penal Code5 defines rape as follows: A man is said to commit rape who, save in the case referred to in subsection (2) has sexual intercourse with a woman in any of the following circumstances- (a)against her will; (b)without her consent; (c) with her consent when consent has been obtained by putting her in fear of death or of hurt;(d) with her consent, when the man knows that he is not her
*Tomi Grace OBAGBOYE, LLB (Jos), LLM (Kogi), BL. Email: [email protected]. Phone No: 08036126840 1What is Rape? Obtained from Criminal Law Free advice.com/criminal-law/violent-crimes/sexual-offenses- rape.(Last visited on 11/10/2016 by 7:11 am). 2Definition of Rape-Dictionary Definition. Obtained from https://www.vocabulary.com (Last visited on 8/01/2018 at 12:20pm). 3Criminal Code Act, Cap C38 LFN 2004 S 357. 4Ibid. SS 358 and 359. 5 Penal Code Act Cap P3 (Federal Provisions Act), LFN 2004 S 282. Page | 68
OBAGBOYE: Low Reporting of Rape Cases in Nigeria: Challenges and Prospects
husband and her consent is given because she believes herself to be lawfully married; (e) with or without her consent, when she is under fourteen years of age or of unsound mind.’ (2) Sexual intercourse by a man with his own wife is not rape, if she has attained the age of puberty.
Under the Penal Code,6 rape is punishable by imprisonment of up to 14 years with or without a fine. The Violence Against Persons Prohibition Act has taken a giant stride to expand the meaning and scope of rape. By virtue of the Act,7 1. (1) A person commits the offence of rape if- (a) he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else; (b) the other person does not consent to the penetration; or (c) the consent is obtained by force or means of threat or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act or the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.
The Nigerian Supreme Court in Ogunbayo v. State,8 gave the meaning of rape as ‘a forcible sexual intercourse with a girl or a woman without her giving consent to it’ The Supreme Court further observed that the most important and essential ingredient of the offence is penetration, and that the consent of the victim is complete defence. In Isa v. Kano State, 9Ogunbiyi, JSC stated that the act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Rape is an ever-increasing phenomenon in Nigeria.10The media is replete with horrific and mind- bugging stories of rape with alarming and terrifying twists. Lagos State Police Command recorded 678 cases of rape between March 2012 and March 2013.11 In a poll conducted recently by Ngozi Okonjo Iweala Polls (NOI),12 3 in 10 Nigerians admitted to personally knowing someone who had been a victim of rape. The Nigerian police stated that it recorded 1,788 rape cases in 2013, 1,959 rape cases in 2014, and 1,827 rape cases in 2015.13In a survey to investigate the level of Human Immune Virus (HIV) prevalence by the Positive Action for Treatment Access (PATA), it was discovered that more than 31.4 % of girls, many of them living with HIV, reported rape as the basis of first sexual encounter14.Doctor Ukpong who presented the study observed thus: ‘We have an epidemic
6Ibid. S 283. 7 VAPP Act, LFN 2015 SS 1(1)(a)-(c). 8(2007)8 NWLR (Pt.1035) 157 at 178. See also Ahmed v. Nigerian Army (2011) 1NWLR (Pt.1045)157 and State v. Maigemu (1978) LLR 177at 121. 9(2016)LPELR 40011 (SC). 10 ‘Almost 3 in 10 Nigerians Claim to Know a Rape Victim’ AJLHR 3 (2) 2019 called rape that we are not addressing. It is something to weep over.’15She added that some of those in the study were as young as seven years old. One of the victims was quoted as follows: The man said if I tell my Mum or Dad, he would kill me. He showed me a knife and I was afraid. I was just seven years old then. He was sleeping with me every day and I was fearful to talk to anybody. I bled and my sister saw it but I could not tell her what happened...16 Stories like these abound in the media almost on a daily basis in Nigeria. There was a report from Auchi17 where students at the polytechnic kidnapped their classmate, raped her for days and killed her. It was also reported somewhere in Nigeria that, some young men, raped a girl and then buried her alive. They were discovered by military men.18 There is no gainsaying the fact that something has gone wrong in the Nigerian society today and the epidemic of rape merely reflects and reinforces the appalling social situation in contemporary society.19 There are numerous cases of rape and gang rape in Nigeria (the infamous Abia State University (ABSU) Gang rape 20 being the most widely reported till date thanks to the proliferation of social media), yet many go unreported. The few that get reported to the authorities are either not pursued by the police or the victim is advised to keep silent lest she disgraces her family. Recently, the media was awash with the story of a thirteen year old girl, Ochanya Elizabeth Ogbaje, who was allegedly raped by her uncle and cousin since she was nine years old.21 She battled with Vesico Vaginal Fistula (VVF) and other health complications at the Benue State University Teaching Hospital, Makurdi, where she finally gave up the ghost on the 18th of October, 2018. Several civil society groups and activists have decried the incident and demanded for justice against the perpetrators.22 2. Low Reporting of Rape Cases in Nigeria Many sexual assault incidences in Nigeria are unreported. It is terrifying that 50 to 90 percent of all rapes or attempted rapes are unreported.23 Most of the incest and molestation are never reported. More so, date rapes and stranger rapes are not reported due to shame, humiliation, guilt, cultural taboos; and to avoid victimization at the hands of medical authorities. Many of the cases are thrown away in the law courts because of lack of evidence and distortion of evidence by law enforcement agents and inadequate exhibits for prosecution.24Victims are discouraged from reporting crimes of rape due to social stigma. Presently, there is no comprehensive official statistics to accurately establish the rate, incidence and scale of sexual violence in Nigeria. Government agencies do not make public records of sexual violence. Reporting of rape cases is sporadic, piecemeal and inconsistent. Decided cases on sexual violence of children and women 15Ibid. 16Ibid. 17C O Adekoya, ‘Using Law to Serve the Purpose of Women in the 21st Century: Rising to the Challenge of the Scourge of Sexual Violence in Nigeria’ [2008] (1) (2) Akungba Law Journal 161-189. 18Ibid. 19Ibid. 20O Amaka, ‘No to Rape’ OBAGBOYE: Low Reporting of Rape Cases in Nigeria: Challenges and Prospects in Nigeria are very few because of the secrecy and stigma surrounding the issue. When cases of sexual violence are reported to the Police, they are usually reluctant to file charges, especially where the perpetrator is a family member.25In a situation where they are forced to report the matter to the police, victims are often persuaded by relatives and friend to withdraw the matter from police and ‘leave all in God’s hands’’. In some cases, the Investigating Police Officer intimidates the victim to opt for an out of court settlement, where the perpetrator pays a sum of money which is shared between the officers and the victim. They can also demand for money from victims to enable them investigate the crime. This further discourages the victims and their families.26 Most crimes of rape are not reported for reasons such as the social stigma attached to the victim, the fear of being ostracized from the family and community and also the fact that the police may be unwilling to make an official report due to insufficient evidence. Even when reported and the accused is not convicted at the end of a trial, the victim is made to feel condemned and looked down upon.27Though rape has been widely acknowledged as one of the most underreported crime in the world the refusal of victims of rape and other forms of sexual victimization in Nigeria to report have several social underpinnings.28 The records of the Nigerian Police are replete with statistics and sometimes names of armed robbers, carjackers and murderers; however, they are no accurate records and statistics of rape cases.29 In the Nigerian law, the Penal Code,30 Criminal Code31 and Violence Against Persons Prohibition Act,32 have defined the offence and prescribed punishments. In spite of this, the rate of reporting of rape and sexual assault by victims remains low. Meanwhile, almost on a daily basis, news reports are made of either a teacher raping a pupil, a religious leader raping a member of his flock, robbers raping a victim, a man raping his sister in-law or daughter-in-law, a group of boys or men raping a lady, a master raping his house maid, a security man raping his master’s wife, a boss raping an employee, a father raping his daughter, a young man raping a grandmother, a minor raping a fellow minor, a traditional ruler raping his subject, an 80-year- old man raping an eight-year-old-girl and so on.33It is therefore a subject of concern that the statistics on such a crime will be alarmingly unreflective of the perceived rate in the country. Indeed, there is statistical evidence that suggest that most rape in Nigeria goes unpunished, as according to a report by CLEEN Foundation,34 only 28 per cent of rape cases in the country are reported to the police. Also, in a poll conducted by Ngozi Okonjo Iweala (NOI) Polls Limited35 it was reported that almost 3 in 10 Nigerians admitted to personally knowing someone who has been a victim of rape. In addition, statistics show that about one in fifty cases of rape are 25F Falana, ‘Growing Incidence of Rape and Incest in Nigeria’ < http: // welaonline.org/?p= 19# > Last visited on 22/08/2017 at 1pm. 26Ibid. 27M O Ashiru, ‘Law of Rape in Nigeria and England: Need to Re-Invent in the Twenty-First Century’ [2015] (38) , Journal of Law, Policy and Globalization 1-11. 28Ibid. 29Ibid. 30Penal Code (n 5) s 283. 31Criminal Code Act (n 3) ss 358,359 32Violence Against Persons Prohibition Act (n 7) s 1(2). 33R AAborisade, ‘Barriers to Rape Reporting for Nigerian Women: The Case of Female University Students’ [2014] (7) (2) International Journal of Criminology and Sociology Theory 1-14. 34 CLEEN Foundation (2013) Summary of Findings of 2012 National Crime and Safety Survey obtained from AJLHR 3 (2) 2019 reported, and the percentage of reported cases has continued to reduce over the years despite the consistent increase in the number of incidents.36 Consequently, it has been widely described in the country as ‘a crime whose victims love to remain anonymous’37 The peculiarity of the underreporting of rape and sexual violence in Nigeria is underlined by the deficiencies of government to establish structures that would encourage victims to boldly come out. Stigmatization is considered as one of the strongest factors inhibiting the reporting of rape, as the Nigerian society are strongly prejudiced against victims.38 Rape victims are often perceived as facilitating their victimization through ‘suggestive attitudes,’ and ‘indecent dressing’; in spite of the fact that there is no law that regulates dressing in the country. Therefore, victims of rape or sexual assault are perceived as people of low moral virtues that must have led their assailants to the crime ‘one way or the other’.39 A journalist, Amaka-Okafor described this social perception of rape by Nigerians as part of the ‘culture of rape. 40 She condemned the non-recognition of domestic rape (between husband and wife) by the nation’s constitution as a factor that fuels the culture of rape in the country. This, by extension may account for the reason for the low reporting of date rape as the female partner will be condemned by the public if she comes out to report being raped by her boyfriend. In this case, it has been reported that even the law enforcement agents makes mockery of such report by victims as they often consider it inconceivable for a girl to report being raped by her boyfriend.41 This therefore makes victims to lack the necessary motivation and confidence in the criminal justice system to report such rape incidences. This problem of secondary victimization has been identified as one of the major factors that account for the underreporting of rape cases in the country.42 As the rape scourge continues to eat deep into the social fabric of the country, the ivory towers are not spared as there are increasing accounts of sexual assaults in several institutions of higher learning in the country. The rape situation in higher institutions is even more ominous as they are recoding higher rates of gang rape.43 Added to this is the growing rate with which videos of the sexual ordeals of the victims are uploaded on social media to further ridicule them the more. One of such instances was a 10-minute uploaded video of rape incidence suffered by a female student by a gang of her fellow students in which she had to beg her assailants to kill her and save her from further gruesome sexual harassment.44 Gang rape is also very prevalent in many of the nation’s universities because it is used as an expression of abuse and power among cult gangs. Stranger rape is particularly common in non- resident universities as students are left to live off-campus where their security is not in any way guaranteed. The case of rape victimization among university students was particularly made relevant due to the likelihood of the assailant(s) influencing the reporting behaviour of the victims. 36 A Chiedu, ‘The Rising Wave of Rape’ The Punch Newspapers, 4 June 2013, p 26. 37 O Yishua, ‘Rape: A Crime Whose Victims Love to Remain Anonymous’ The Nation Newspaper 26 September, 2011 p. 23. 38 V Amaka-Okafor, ‘Nigeria has a Rape Culture Too’ Guardian Africa Network January 14,2013. obtained from OBAGBOYE: Low Reporting of Rape Cases in Nigeria: Challenges and Prospects 3. Factors Responsible for Low Reporting of Rape Cases in Nigeria In spite of the horrendous attacks of the humanity, dignity, pride and rights of women as noted earlier, the non-reporting /under reporting of rape have been attributed to stigmatization, insensitivity of law enforcement officials and inefficiency in investigation rape cases. 45In a 2005 National Crime Victimization Survey conducted by a non-governmental organization, about 10,000 cases of rape were recorded in the past three years preceding 2005, with only 18.52% of the cases reported, while 81.48% cases were not reported.46 The factors attributable to non-reporting or underreporting of rape cases are examined as follows: Social Stigma and Prejudice against Victims There seems to be a culture of silence surrounding rape in Nigeria.47 The social stigma associated with rape across the globe forces female victims in Nigeria to conceal rape assaults in order to save themselves from shame and public, embarrassment. Even parents of the victims often find it difficult to come out publicly to report such cases. In Nigeria, when a woman is raped and it becomes public notice, she and her family are ‘ostracized’ due to the dis-honour associated with rape.48This can be seen from the shame or neglect shown towards rape victims in Nigeria by family and friends. It ranges from openly mocking the victims to being neglected by close family members and friends. In some cultures, some are even seen as having brought shame and dishonor to the family.49There is a general lack of support from care agencies of government who should not ordinarily encourage these victims but also engineer a systemic re- integration of victims into the society. Considering the statistics of decided cases on rape at the Court of Appeal and Supreme Court, a cursory look shows that most reported instances of rape are from underage children who do not usually understand the very nature of the offence. Most adults rather choose to suffer in pain and anguish due to the social stigma attached to it.50 Victims are too ashamed to come forward. Shame is at the core of the intense emotional wounding women (and men) experience when they are sexually violated. Sexual assault is, by its very nature, humiliating and dehumanizing.51 The victim feels invaded and defiled while simultaneously experiencing the indignity of being helpless and at the mercy of another person. Victims of sexual assault also feel shame because as human beings we want to believe that we have control over what happens to us. When that personal power is challenged by a victimization of any kind, we believe we ‘should have’ been able to defend ourselves. And because we weren’t able to do so, we feel helpless and powerless. This powerlessness causes us to feel further humiliated.52Most rape victims are usually stigmatized in the society. They are seen as damaged and violated and treated differently from others in the society.53 The social consequences of rape on victims can be dire, as a result of which most victims don't want to report this crime in order to avoid the negative social consequences of stigmatization and 45C O Adekoya (n 17) 175. 46Ibid. 47 H C Achunike and R H Kitause, ‘Rape Epidemic in Nigeria: Cases, Causes, Consequences and Responses to the Pandemic’ [2014] (2) International Journal of Research in Applied, Natural and Social Sciences 5. 48Ibid. 49D Olunlade, ‘Rape in Nigeria: New Developments’, AJLHR 3 (2) 2019 ostracization; this is perhaps the most inhibiting factor. Stigmatization may seriously affect the chances of unmarried ladies getting married.54In the Nigerian society, many cases of rape are not reported due to pressures that seek to compel women to remain silent about rape in order to conform to the expected societal standards of women remaining chaste till marriage. Many women are afraid that no man would want to marry a victim of rape.55 Blaming Victims Victims are afraid of being blamed. This makes sense since we have a victim blaming culture in which we make the assumption that if something bad happens to you it is somehow your own fault. 56This is particularly true for the way we blame women. ‘She shouldn’t have gone to that party,’ ‘What does she expect if she wears a dress that short. She’s just asking for it.’‘It’s her fault for drinking so much.’57 Blaming the victim is by far the most common reaction people have when a victim tells others that she was sexually assaulted and is, by far, the most damaging. The idea is that the victim ‘put herself in that position’ or was ‘asking for it.’ Not only does the victim not receive the comfort and support she needs, she is also further shamed by being blamed for her own victimization. A victim said: ‘My boyfriend got so angry with me. He yelled at me for going to that party in the first place. ‘I told you those guys were trouble! You should have never been there.’ And then he yelled at me for not leaving the party earlier: ‘And why didn’t you leave when Linda did? That was so stupid of you to stay there all alone! And you were probably drunk, weren’t you? Gina, what did you expect?’’58 It is fairly common for boyfriends and husbands to blame the victim. In addition, victims are afraid they will not be believed. Sexual misconduct is the most under-reported crime because victims’ accounts are often scrutinized to the point of exhaustion and there is a long history of women not being believed when they attempted to report a sexual violation.59 Although friends and family usually believe a woman when she tells them she was sexually assaulted, but when it comes to reporting the crime, they don’t encourage her to do so. Sexual Violence by Acquaintances and Relations Although rape can be done by a complete stranger or someone the victim knows fairly well, reports however indicate that rapes are committed mostly by acquaintances such as colleagues, bosses, friends, boyfriends, ex-boyfriends and neighbours.60 A study61 on criminal victimization revealed that 49% of victims of sexual violence knew the offenders by name while only 20% knew the offenders by sight. This confirms that offenders are often acquaintances. This results in the offence of rape being treated as private or domestic affair when it occurs. Consequently, many of rape cases are withdrawn for amicable settlement after being lodged by the police. Sexual abuses on children which are usually committed by neighbours, domestic servants, family friends, and even by family members (incest) are hardly reported.62 The victims also withdraw the cases because they are often not believed to be telling the truth, in addition to the fact that their pride and honour have been violated. 54C O Adekoya, (n 17). 55 ‘Lagos Records 678 Rape Cases in One Year’. OBAGBOYE: Low Reporting of Rape Cases in Nigeria: Challenges and Prospects Traumatisation of Victims Victims are usually too traumatized to report the assault. 63This is more common than you would imagine and brings up some issues that not everyone is aware of. For example, most people are familiar with PTSD (Post-Traumatic Stress Disorder), a severe anxiety disorder with characteristic symptoms that develop after the experience of an extremely traumatic stressor, such as a violent assault on one self. Many understand that those who suffer from PTSD often relive the experience through nightmares and flashbacks, have difficulty sleeping, and feel detached and estranged, and these symptoms can be severe enough and last long enough to significantly impair the person’s daily life. Insensitive and Dismissive Attitudes of Police Despite the seriousness of the offence of rape and its devastating consequences on victims, making a formal report of rape at police stations can be a harrowing and traumatizing experience for most victims. This can be likened to a second victimization as a result of the often hostile, insensitive, vilifying, humiliating, and discriminatory manners by which victims are treated.64The Police in most cases demonstrate insensitivity to the plight of victims when they lodge complaints. The police subject them to ridiculous questions such as ‘did you enjoy it?'' or other unimaginable questions. They laugh at the victims and jest as the victim recounts her harrowing experience. Other police officers present join in this seeming fun, thereby trivializing a very sensitive and vital matter. There is hardly the expression of solidarity with the victims on their plights. This may not be far-fetched from the fact that many police officers are also involved in sexual assault.65The Police lack training and expertise in preventing and responding effectively to cases of sexual violence against women. The problem is compounded by the negative attitudes towards victims prevalent among male police officers. A female High Court Judge once told an International Human Rights NGO on the condition of anonymity that: ‘the police who are taking the report are often guilty of displaying discriminatory and dismissive attitudes towards the victim. They would often challenge the rape victim by saying that she must have done something to the man and that she must have attracted him.’ The police might thus reason that the victim might have dressed in a provocative manner on the day of the aggression or that the victim might have indirectly asked for it. 66 Difficulty in Successfully Prosecuting Cases of Sexual Violence and Low Conviction Rate There are many factors responsible for difficulty in successfully prosecuting rape cases such as consent, corroboration, and proof of penetration. The proof of the offence of rape is one of the most difficult for the prosecution owing to the high onus of proof placed on the complainant in rape cases. Also the fact that witnesses are lacking in most cases add to constraints, to the extent that this has almost legitimized rape. Consequently, this has led to a low rate of conviction. Hence, many victims rather hide their cases than risk stigmatization and get no justice at the end after going through an emotionally tasking trial. They rather leave it for God to judge.67Also their families try to avoid disgrace, and many victims and their families believe that justice cannot be done. In addition, the victims are often blamed for the incident and suffer from severe 63 B Engel(n 51). 64Ibid. 65C O Adekoya, (n 17) 176. 66Ibid. 67 Nigeria: Rape- The Silent Weapon. AJLHR 3 (2) 2019 emotional trauma. Some believe that the judicial system in Nigeria is skewed to favour the offenders and lacks the ability to serve justice to victims and discourage offenders.68 4. Prospects for Better Reporting of Rape Cases Instead of asking why victims don’t tend to report sexual assault, we need to ask, ‘What are we doing to make it safe for them to report?’ and ‘What can we do to make reporting processes less threatening and more trauma-sensitive for victims?’69We have an epidemic on our hands when it comes to sexual assault. Here are some possible ways for us to educate and de-stigmatize sexual assault so that more victims will come forward to report and get the help and support they need. Legal Reforms The law of rape in Nigeria needs a general overhaul to meet the present realities.70Procedural and evidential clogs in the wheel of justice in the cases of sexual violence should be removed in order to enhance conviction rates. Corroboration in sexual offences cases should be relaxed, owing to the absence of witnesses in most rape cases. Corroboration is not a rule of law but of practice. So Judges should not allow it to prevent conviction of rapists. By its very nature, rape tends to happen in closed circuit situation, in the privacy of locked doors, in deserted grooves and in the shadow of darkness where there are rarely eye witnesses.71Corroboration creates an impossible requirement for victims to meet. If rape allegations are forensically investigated, the likely incidence of false accusations will not pose a serious problem. Justice should not be sacrificed on the altar of technicality as is the order of the day in rape cases. The requirement of corroboration works so unfairly against the victim of rape that in most cases many of them end up being frustrated and humiliated and they abandon the case.72 Proceedings of rape in court should be held in private to protect the private life of the victims. This is necessary in view of the social stigma attached to rape. The Nigerian Constitution73 provides that a court or tribunal may exclude from its proceedings persons other than the parties thereto or their legal representatives for the protection of the private lives of the parties or such as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice. The VAPP Act74 also makes provision for privacy of rape proceedings, compensation to rape victims and rehabilitation and counselling of rape victims. Government should henceforth ensure diligent investigation of sexual violence allegations by professionals (Police and Health personnel) using modern forensic methods such as finger printing, blood testing and DNA testing, to discover perpetrators. Offenders should be prosecuted and brought to justice. This will boost conviction rate in sexual offences, deter perpetrators and prospective ones.75 All states in the country should be encouraged to domesticate the VAPPA 2015. These measures would encourage more victims of rape to report. 68Ibid. 69Ibid. 70D Peter, ‘A Critique Of The Law Of Rape As A Human Rights Violation In Nigeria’ [2012] ( 3)Human Rights Review Journal 255 -262. 71A O Yusuff, ‘Gender Inequality and Selective Victimization under the Nigerian Law of Rape’ [2007-2009](2&3) Journal of Private& Comparative Law 97-119. 72Ibid. 73CFRN 1999 S36(4)(a). 74VAPPA 2015(7) S 38. 75Ibid. Page | 76 OBAGBOYE: Low Reporting of Rape Cases in Nigeria: Challenges and Prospects Establishment of Sexual Assault Referral Centres (SARC) The establishment of many Sexual Assault Referral Centres also known as one stop centres, should be encouraged, where all criminal justice services and other welfare services, including prompt free medical care, support, free legal aid, counselling and rehabilitation services can be rendered to victims to sexual offences at the same place to reduce secondary victimization and increase the rate of reporting sexual offences.76 The centres should also be equipped to make video recording of victims reporting sexual violence for the first time. Such video recording must only be used for the purpose of evidence in court. The centre should also handle issues relating to stigmatization, ostracization, and integration of victims. Worthy of commendation and emulation is that On Monday July 1, 2013, a grant-funded Sexual Assault Referral Centre (SARC) also known as the Mirabel Centre opened its doors to the public in Lagos. The Centre, the first of its kind in Nigeria, is run by a Lagos-based civil society organisation, Partnership for Justice with support from St Mary's Sexual Assault Referral Centre, Manchester, United Kingdom, and in collaboration with the Lagos State Ministry of Health. In addition, the European Union in collaboration with British Council has built and donated a Sexual Assault Referral Centre (SARC) to Borno State, in February 2018.77 The centre is expected to provide care for women, children, and other group of people that have suffered rape and other forms of abuse due to the activities of Boko Haram in the state. The First Lady of Borno State, Mrs Nana Shettima, on Monday commissioned the centre which is the first of its kind in the region ravaged by the Boko Haram crisis.78On Tuesday 27th March 2018, a large number of stakeholders gathered at the Adamawa State Specialist Hospital to witness the official opening of the European Union funded Adamawa Hope Centre by the Wife of the Adamawa State Governor, Miriam Jibrilla.79 The Facility is equipped with forensic technology to help prove all cases of sexual and gender-based violence (SGBV).It is important to note that some other states have established Sexual Assault Referral Centres (SARC). This includes states like Kaduna, Adamawa, Jigawa, Niger, Enugu, Akwa- Ibom, and Kano. The Enugu Centre, known as Tamar centre is managed by Women’s Aid Collective. This is a step in the right direction. However, more states need to take this step. Furthermore, SARC need to be established in more rural areas and communities. One Sexual Assault Referral Centre (SARC) in the state Teaching Hospital cannot handle all the cases of rape and sexual assault in the states. Re-orientation to stop Victim-Blaming There is an urgent need for re-orientation of members of society to stop blaming victims. In fact, our entire culture is guilty of victim blaming.80 At its core, this tendency to blame the victim comes from our cultural intolerance of weakness in any form. Most times, people in the society blame the woman who was raped for wearing sexy clothes, or for drinking too much, or for being at the wrong place at the wrong time.81 Even some misguided therapists sometimes believe that their job is to help their client see how she participated in the rape by ‘putting herself in that position.’ Others focus on what the victim can do differently next time to prevent being raped again, implying that she had something to do with her own victimization. These 76C O Adekoya, (n 17). 77J Duku, ‘Boko Haram: EU/ British Council build Sexual Abuse Referral Centre’ AJLHR 3 (2) 2019 therapists seem to believe the old line, ‘Nobody can abuse you without your consent.’ The truth is, victims do not cause themselves to be raped. People can and frequently do abuse and rape others ‘without their permission,’ and people can and do control others against their will. There is only one thing that causes a woman to be raped: a rapist. We need to help women understand that they need to stop blaming themselves for getting raped. Even in today’s culture, women tend to blame themselves (and other women) when a man tries to force himself on them. This belief has been ingrained in women’s psyches for decades and is based on the idea that: women are responsible for men’s unacceptable behavior, and it is a woman’s job to never arouse a man unless she wants to follow through by having sex with him. This archaic belief needs to be unearthed and exposed as the lie that it is. No one is responsible for a man’s behavior but the man himself. Specialized Training of Institutional Personnel The police, judicial officers, health officers, social welfare and other necessary personnel should be adequately trained to be sensitive to cases of sexual violence, in order to avoid re- traumatizing the victims in the course of legal and administrative procedures designed to provide justice and reparation.82Guidelines should be developed for welfare department or other agencies of government and NGO's in assisting victims of rape and other sexual offences. There should also be a provision for counselling, rehabilitation and re-integration of victims of sexual offences. The International community can render necessary technical support and assistance to Nigeria in building institutional capacity towards providing varied support to victims of sexual offences.83In addition, there should be intensive public enlightenment and education at schools, social clubs, cultural group gatherings, churches, mosques and through the media, to demystify the myths about sexual assault. 84These myths inform the way many people think about sexual assault, and because they are in the background unconsciously influencing people’s thoughts, the false assumptions may be seen as being true. 5. Conclusion Better reporting of rape cases will remain a mirage until society puts in place institutional framework to deal comprehensively with cases of sexual assault. This approach involves functional, skilled, and synchronized services and also includes the criminal justice system, the police, social services, and sexual assault services. There is an urgent need to encourage victims and survivors of rape to break the silence, speak up and report the crime. This can be achieved by making freely available such services, which should be community based. The successful prosecution of perpetrators will also serve as a deterrent and hopefully prevent the next person from falling victim. 82C O Adekoya, (n 17). 83Ibid. 84I E Nwosu, ‘Mobilizing People’s Support for Development: An Analysis of Public Enlightenment Campaigns in Africa’ [1986] (1) (1) Africa Media Review 48-65. Page | 78 AJLHR 3 (2) 2019 THE RISE OF NON-CONSENSUAL PORNOGRAPHY IN NIGERIAN CYBERSPACE: IMPERATIVES FOR STATUTORY CRIMINALISATION* Abstract Taking intimate pictures of oneself or partner may be part of a healthy relationship and has become increasingly common. However, a disturbing trend has emerged in the Nigerian cyberspace of circulation of pornographic images of rape victims, victims of sexual assault, and non-consensual pornography. Nigerian law suffers from a lacuna in regulating these pornographic activities. While statutes regulating similar activities such as the Obscene Publications Act exist, there are gaps yet to be addressed. This article identifies the rise in the publications of such grossly indecent and obscene material especially on the internet and other media, classifies the crimes falling under non- consensual pornography, examines the status quo, the existing legal structure for regulating publication of obscene materials and proposes reforms to criminalise revenge porn and non- consensual pornography specifically in Nigeria. Keywords: pornography, revenge, obscenity, reforms, legislation, cybercrimes 1. Introduction Sometime in the last quarter of the year 2011, internet and social media users particularly in Nigeria realized that their devices were awash with disturbing images of an actual rape video depicting 5 males who had brutally raped a young woman in turns somewhere in Nigeria. From the audio dialogue on the video, it was apparent that these were 5 young Nigerian male undergraduates raping a young Nigerian woman somewhere in eastern Nigeria and at the same time recording the sordid act. The video elicited shock from Nigerians who expressed anger at the incident. To worsen the situation, subsequently, more rape videos flooded the internet1. Eventually, suspects in the gang-rape video were arrested but the Nigerian police declared the investigations over within a short period as the victim had not come forward2. An activist who petitioned the Inspector General of Police (IGP) cited several provisions of the penal code which the suspects could have breached although rape was the focus of both the petition and the investigation3. The focus on rape as the primary offence is not without its own shortcomings. This is because of the many hurdles to proving the offence of rape in Nigeria4. Eventually, the outcry that accompanied the revelation and circulation of the video died out and much has not been heard about the video or the perpetrators of the heinous act anymore till date. Obviously, the failure of the victim to come forward could have made it difficult for the prosecutors to obtain a conviction without proof beyond reasonable *Nnamdi G.IKPEZE, LLM, BL, Senior Lecturer, College of Law, Afe Babalola University, Ado-Ekiti (ABUAD), Research Fellow OGEES Institute, ABUAD, Phone: 234(0)8038675657, E-mail 1: [email protected], E-mail 2: [email protected] *Oyebanke APARA, LLM, BL, Lecturer, Department of Public International Law, College of Law, Afe Babalola University, Ado-Ekiti (ABUAD), 1‘gang rapes: after Abia, more rape videos flood Nigerian varsities’ www.vanguardngr.com/2011/09/gang-rapes-after- abia-more-rape-videos-flood-nigerian-varsities/ -last accessed 20/8/2016 2‘police arrest suspects in Abia gang-rape video, as activist petitions IGP’ www.dailytrust.com.ng/sunday/index.php/news/9842-police-arrest-suspects-in-abia-gang-rape-video-as-activist-petitions- igp -last accessed 20/8/2016 3note3 4To secure a conviction for rape requires proof beyond reasonable doubt that (a) An accused had sexual intercourse or penetrated the woman( Nigerian law recognizes that only males are capable of committing this offence); (b) That it was done against her will, and; (c) That she was not his wife. Page | 79 IKPEZE & APARA: The Rise of Non-consensual Pornography in Nigerian Cyberspace: Imperatives for Statutory Criminalisation doubt of the elements of the offence of rape and may have informed the decision to end investigations as the charges would not be substantiated. The most alarming realization was that while the case had elements of non-consensual pornography, the focus of the investigation was not obscenity or non-consensual pornography at all. This immediately reveals a lacuna. It is clear that the culprits in that very offensive act could walk away unscathed under favourable circumstances. Indeed it appears that they walked scot-free. This is so because, in Nigeria, there is a constitutional protection of individual privacy but no specific legislation proscribing and sanctioning the production and publication of photo/video recordings depicting rape scenes and the publication of revenge pornography and as has happened elsewhere. It is often said that where there is no law, there is no crime and when there is no statutory provision for an offence, the courts are often left with no choice than to dismiss charges5. Another scandal occurred in 2015, Former Miss Anambra State, a victim of revenge pornography, found herself embroiled in a scandal after a sex tape made of herself and a friend of hers was leaked online. The sex tape was said to have been made public by some men who blackmailed her with it, even after she reportedly paid them to stop the tape from being made public.6 On the 17th of January, 2017 she appeared in a Lagos State High Court for the arraignment of one of people allegedly behind the non-consensual sextape scandal7. Again, on the 6th of December, 2016, Motunrayo Fela Kuti, daughter of Late Fela Anikulapo-Kuti, was a victim of yet another revenge pornography as her boyfriend threatened to publish a sex tape of her on the internet.8 It is the remediation of these lacunae that this article is focused on because the realisation that in Nigeria, Non-Consensual Pornography (NCP) and rape porn is a new phenomenon and cyber-crime which must be confronted squarely. 2. Non-consensual Pornography Non-consensual pornography (the most common form of which is known as ‘revenge porn’) involves the online distribution of sexually graphic photographs or videos without the consent of the individual in the images9. The perpetrator is often an ex-partner who obtains images or videos in the course of a prior relationship, and aims to publicly shame and humiliate the victim, in retaliation for ending a relationship or other reasons. However, perpetrators are not necessarily partners or ex- partners and the motive is not always revenge10. Victims of Non- consensual pornography are devastated by it and often suffer depression, and severe anxiety. They lose their jobs and may have 5See. S.36(12) of the Constitution of the Federal Republic of Nigeria 1999; Faith Okafor v. Lagos State Government and Anor. (2016) LPELR-41066(CA); United States v Baker 1997 Fed. App 0036P (sixth circuit Court of Appeals 1997) www.laws.lp.findlaw.com 6 Non-consensual leaked sex video of Chidinma Okeke, Miss Anambra- (http://www.buzznigeria.com.)- last accessed 10/12/ 2016 7 Punch Newspaper, Sex Scandal: ChidinmaOkeke, ‘blackmailer’ appear in Lagos Court, Simon Ejembi, 17th January, 2017- http://www.Punchng.com – last accessed 18th January 2017 8Sharing private video threat: Fela’s daughter blasts ex-boyfriend- (http://www.vanguardngr.com>news)- last accessed 10/12/2016 9D.K. Citron & M.A Franks, Criminalizing Revenge Porn, (2014) 49 Wake Forest L.Rev. pp.345-346 10European Institute for Gender Equality; cyber violence against women and girls (2017) p.2 Page | 80 AJLHR 3 (2) 2019 difficulty getting new jobs11.As exemplified in the introduction, there have been many incidents of victims of non-consensual pornography in Nigeria in recent years. Evidently, majority of the victims are female. This is coupled with the trend of sharing incidents of rape and assault on social media. 3. Conceptual Clarifications The scenarios vary in content which ranges from photos/videos made with consent of the actors but released without consent as was the case in the Former Miss Anambra scandal to assault and rape videos/photos as in the Abia State Undergraduates rape video. It is therefore important to make some conceptual clarifications as it important to call the different concepts by different names as far as practicable. Consensual pornography: The differences between consensual pornography and non-consensual pornography can be understood from the definition of ‘pornography’ alone. Consensual pornography is focused on consenting adults; this sets it apart from non-consensual pornography.Pornography is defined as ‘printed or visual material containing the explicit description or display of sexual organs or activity, intended to stimulate sexual excitement’12. Following that definition, it is apparent that pornography is intended to stimulate sexual excitement in the viewer. Pornography therefore focuses on a target audience for which it is intended. It is with the intent that a third party can view it and (maybe) find it sexually stimulating. The most important factor in determining what constitutes pornography would be the intention of the maker and the fact that is made for a target audience. It is this type of pornography that is usually referred to as consensual pornography. Non-consensual Pornography: Non-consensual pornography is a wide term encompassing: revenge pornography, uninvolved revenge pornography, non-voluntary pornography and morphing13. The term non-consensual pornography is often used interchangeably with revenge pornography, though it is recognized as broader that revenge porn14. Non consensual pornography is not always pornographic unlike consensual pornography which is pornographic from the moment it is made. Non consensual pornography becomes pornographic upon publication. The material is not regarded as pornographic before it is published because it does not fit into the definition of ‘pornography’ which is made with a certain intent and targeted at a certain audience. An image not designed to arouse or excite the audience sexually is not intrinsically pornographic though it may be obscene. Publication and disclosure to an audience can make it pornographic even if it is without the consent of the individual(s) in the image (this is usually the case apparently). 11Danielle keats Citron, Hate Crimes in Cyberspace 6-10 (2014) 12‘Pornography,’(2016) in Oxford Dictionaries, online resource 13Morphing is a special-effects process or a computer technique used for graphics and films, in which one image is gradually transformed into another image without individual changes being noticeable in the process.- https://www.google.com.ng/amp/s/www.collinsdictionary.com/amp/English/morphing- last accessed 11/8/2017 14Mary anneFranks,’drafting an effective revenge porn law: A guide for legislators,2016, -available at: https://www.cybercivilrights.org/wp-content/uploads/2016/09/Guide-for-Legislators-9.16.pdf.p.2 ; Danielle Keats Citron and Mary Anne Franks, ‘Criminalizing Revenge Porn,’ Wake Forest Law Review 49,(2014)., p.346. Page | 81 IKPEZE & APARA: The Rise of Non-consensual Pornography in Nigerian Cyberspace: Imperatives for Statutory Criminalisation Revenge pornography: This is the all-encompassing term for capturing situations where sexually explicit images of a person is posted online without that person’s consent especially as a form of revenge or harassment and posting sexually explicit material or images of a person without their consent and for the purpose of causing distress and embarrassment. It is a situation in which intimate pictures or films have been made with the consent of the individual shown therein, but which have been disclosed by the person to whom they were entrusted without the consent of the individual shown.Revenge pornography is the publication of images or films of a private, intimate, and sexual nature; made with the consent of the individual(s) shown therein for purposes unconnected with third-party sexual gratification or mass publication by an individual to whom the images were entrusted, without the consent of the depicted individual(s).This definition is adopted because the images used in revenge pornography are usually made with the consent of the persons depicted therein at a time when future publication is not envisaged and with no anticipation whatsoever that confidentiality and trust may be breached. ‘Publication’ is indeed the definitive feature of revenge pornography. Uninvolved revenge pornography15 This definition is quite the opposite of revenge pornography. In this situation, sexually explicit images are either obtained by someone who it was never entrusted to at all and published or it may be an existing image or video obtained by chance, theft or hacking. It might also involve situations where images or videos are created without the knowledge of the person depicted in it even if it is by someone who is intimate with him.16 The striking difference between this and revenge porn is that uninvolved revenge pornography does not involve the knowledge or consent of the victim at any time. Non voluntary pornography This refers to situations in which intimate, private and sexually explicit images or films are made without the consent of the depicted individual(s) and published without the consent of the individual. This would directly apply mostly to secret recordings. Morphing Morph refers to the process of changing smoothly from one image to another by gradual steps using computer animation techniques17. Morphing involves the editing of images to sexualize persons who are not in the actual video or image. The original image may be ordinary but morphed to look sexual. 15This nomenclature was used by MartheGoudsmit at page 27 of an unpublished thesis titled: Revenge Pornography: A conceptual Analysis which was submitted at Leiden university in partial fulfillment of the requirements of the masters programme in Philosophy of Law at Leiden University January 2017. The author has somewhat widened the scope as used by Goudsmit. 16For example, in late 2016 nude images purporting to be of the PDP chairman in Edo State Dan Orbih was circulated online through a facebook page called ‘corruption concern’ with the caption ‘see what our so called leaders become in the hands of prostitutes. This is a lesson to all of us. This is the PDP Chairman in Edo State they said he refused to pay the lady and she waited for him to snore and took this picture in the hotel and ran away…’http://www.nigerianmonitor.com/naked-photo-edo-pdp-chairman-dan-orbih-leaked-alleged-prostitute-goes- viral/amp/ last accessed 9 October 2018 8.44 am 172017 Oxford Dictionaries an online resource- last accessed 11/8/2017 Page | 82 AJLHR 3 (2) 2019 Summary The sub heads above are all distinguishable concepts that are vital to the discourse on non- consensual pornography. As is seen above, the absence of consent to make or publish is essential in non-consensual pornography. This is different from consensual pornography or pornography properly so-called. Again, it is important to note that there can be no intimacy in pornography while most aspects of non-consensual pornography violate high level intimacy. Of course it is trite that pornography goes through an intentional film production process designed for third party consumption while most images and videos that become tools of non-consensual pornography are made by the persons themselves (except those created secretly in cases of non-voluntary pornography or uninvolved non-consensual pornography) without any intent to distribute same to third parties. 4. Response by law enforcement agencies The first high-profile case of non-consensual pornography in Nigeria was in 2011 when undergraduates from a Nigerian university made a video as they took turns to rape and assault a young lady in a most despicable way. When the video went into circulation, the initial response of the Nigeria police was incoherent and haphazard. In fact, there was no actual investigation into the matter. It took many months of posting pictures online, and petitions by activists for the police to make arrests in the case18. Finally in September 2011, arrests were made19. But in a bizarre twist, the police had declared the investigation of the crime over within a very short period. This birthed another series of petitions and finally, the National Assembly had to order the investigation to be reopened. From the initial police reaction, it would seem that the police officers involved in the case were not aware that certain provisions of the criminal code had been breached as there is the offence of Criminal Defamation which is provided for in the Criminal code20. Criminal Defamation can be against the living or the dead and is defined in Section 373 of the Criminal Code as a... ‘matter likely to injure the reputation of a person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation’. The punishment ranges from one to seven years imprisonment. Publication alone attracts 1 year imprisonment, while publication with fore knowledge of the falsity of the publication attracts 2 years imprisonment. Threatening to publish with the intent to extort attracts the maximum 7 years imprisonment. However fair comment made for public benefit is a defence when the matter published is true. In the Northern part of Nigeria where the penal code applies, criminal defamation is provided for in Sections 391-395 of the Penal code which is similar to the criminal code provisions except that the maximum punishment is 2 - year imprisonment. This evinces acute ignorance on the part of the police and highlights the need for increased and improved training for police officers on these matters in Nigeria. In the wake of the ChidimmaOkeke non-consensual video scandal, the police denied knowledge of the case21 although many months later, arrests were made and at least one suspect was charged with 18https://allafrica.com/stories/201110031771.html last accessed 9 October, 2018 8.50am 19www.dailytrust.com.ng/sunday/index.php/news/9842-police-arrest-suspects-in-abia-gang-rape-video-as-activist- petitions-igp -last accessed 20/8/2016 20Sections 373-381 of the Criminal Code 21http://thenationonlineng.net/anambra-beauty-queens-sexgate-police-not-aware-cp/ last accessed 11/8/2017 Page | 83 IKPEZE & APARA: The Rise of Non-consensual Pornography in Nigerian Cyberspace: Imperatives for Statutory Criminalisation the offence in court22.The Former Miss Anambra non-consensual video scandal rocked Nigeria in 2016 when Former Miss Anambra, a victim of revenge pornography, found herself in a scandal after a lesbian sex tape made of herself and another person was leaked online. The sex tape was said to have been made public by some men who blackmailed her with it, even after she reportedly paid them to stop the tape from being made public.23 On the 17th of January, 2017 she appeared in a Lagos State Court for the arraignment of one of people allegedly behind the sex scandal.24Again, on the 6th of December, 2016, another lady was shamed and blackmailed with revenge pornography as her boyfriend threatened to publish a sex tape of her on the internet.25 5. The Current Situation Nigeria labours under the weight of inadequacy of legislation and effective measures against non- consensual pornography. Nigeria has criminalized the display of obscene publications or access to obscene publications through a plethora of laws and regulatory bodies but these efforts are impeded by a major inadequacy of legislation and current measures against non-consensual pornography despite the enactment of numerous legislation touching on the subject albeit inadequately26. The Most recent law that criminalizes revenge pornography in Nigeria is the Cybercrimes (Prohibition, Prevention, etc) Act of 2015. In S.24 of the Act, it goes a step further to criminalize bullying, harassment, and threats of harm to a person, their property or reputation. Penalties under the Cybercrimes Act are quite deterrent with imprisonment terms of up to 10 years and fines up to twenty-five million naira. The current Nigerian landscape provides inadequate protection for victims of non-consensual pornography. In the case of the gang- rape victim at Abia State, south- eastern Nigeria, it took very substantial media attention, petitions from human rights activists and even the intervention of the national assembly for police to rise to the occasion and to conduct what was at best a lacklustre investigation into the case. The police could only make arrests after pictures and addresses of the perpetrators were made available by rights advocates. As is seen from the cases that have come to public notice in Nigeria and other climes, most of the victims are female27. It seems that there are no effective tools and methods for combating this specie of crime and in particular, there is no specific legislation on the matter. It is remarkable that matters of a serious nature such as non-consensual pornography and revenge pornography are not properly criminalized by the Nigerian State. This lack of criminalisation must be the consequence of a lack of appreciation and Understanding of the problem. Existing obscenity laws do not in the first place seek to protect the individuals depicted in the offensive publications but rather, the public at large. 22http://punchng.com/sex-scandal-chidinma-okeke-appears-court-blackmailers-arraignment/ -last accessed 11/8/2017 23 Non-consensual leaked sex video of Chidinma Okeke, Miss Anambra- (http://www.buzznigeria.com.)- last accessed 10/12/ 2016 24Punch Newspaper, Sex Scandal: Chidinma Okeke, ‘blackmailer’ appear in Lagos Court, Simon Ejembi, 17th January, 2017- http://www.Punchng.com – last accessed 18th January 2017 25Sharing private video threat: Fela’s daughter blasts ex-boyfriend- (http://www.vanguardngr.com>news)- last accessed 10/12/2016 26 The obscene publications Act (1961), Children and Young Persons (Harmful Publications) Act (1961), Constitution of the Federal Republic of Nigeria (1999) (as amended), Information Technology Act (2000), The Criminal Code (2004), ECOWAS Directives on Fighting Cyber Crime (2011), African Union Convention on Cyber security and Personal Data Protection (2014), Cybercrimes (Prohibition, Prevention, etc) Act (2015), 27Information from Cyberbullying research center available at: https://cyberbullying.org/revenge-porn-research-laws-help- victims- last accessed 11/8/2017 7.56pm WAT Page | 84 AJLHR 3 (2) 2019 Good reasons exist for the criminalisation of revenge pornography, and the depicted individual(s) should be the focal point of legislative and law enforcement protection; although these laws would in addition to victims, benefit the public. The public shall be protected through the preventive incentive that comes from criminalisation: revenge pornography is less likely to occur if it is criminalised, which leads to anyone being less likely to become a victim of revenge pornography. If revenge pornography is criminalised, victims of revenge pornography are able to show that the perpetrator wronged them, as the perpetrator faces criminal charges. This is opposed to the current situation where victims are do not get redress for their misfortune, which is implied through the lack of (effective) criminalisation. It is not clear at this time why the legislature has not criminalized revenge pornography, but apparently the fact that there is not much advocacy against non- consensual pornography in Nigeria. While the failure to legislate specifically on this problem is not to be taken as intentional, it reinforces the position of the perpetrators who will go about destroying victims without let or hindrance. It is up to various state and federal legislators to take a standpoint with regard to the criminalization of non-consensual pornography. 6. Conclusion and Recommendations Nigerian law suffers from a lacuna in regulating these non-consensual pornographic publications. While statutes regulating similar activities such as the Obscene Publications Act exist, there are gaps yet to be addressed. This article identified the rise in the publications of such grossly indecent and obscene material especially on the internet, social and other media. it also classified the crimes falling under non-consensual pornography and examined the status quo and the existing legal structure for regulating publication of obscene materials. It finally proposed reforms to criminalise revenge porn and non-consensual pornography specifically in Nigeria. Nigeria has a wide body of legislation aimed at protecting citizens from unwanted encounters with obscenity and pornography. Offensive Explicit images are outlawed to protect the public, but this does not in itself cover the entire gamut of possible offences. The laws regulating the display of obscenities or pornography do not necessarily protect the victims of non-consensual pornography. There is an urgent need to provide current robust legislation to govern this area of law. The Government at all levels must strengthen operations of the law enforcement agencies to build capacity for prevention and detection of the instant specie of crime. The law enforcement agencies must also be equipped to combat this specie of crime especially as it relates to distribution through the internet and social media; and a failure in this regard would exacerbate rather than abate the ugly trend. Page | 85 AJLHR 3 (2) 2019 THE LEGALITY OF DECLARING AN ELECTION RESULT INCONCLUSIVE BY INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) IN NIGERIA: A REFLECTION OF THE ELECTORAL ACT 2010 (AS AMENDED)*1 Abstract Democracy cannot be discussed without the issue of election. The electoral process is vital to the sustenance of democracy. It denotes a process constituting accreditation, voting, collation, recording on all relevant INEC Forms and declaration of results. The collation of all results of the polling units making up the wards and the declaration of results are the constituent elements of an election as known to law and the duty of INEC. This can only be done under a democratic government where the people are allowed to choose their leaders under our law. Where the provisions of these laws are not complied with, the courts are normally called in to adjudicate and interpret as the case may be. The aim of this discuss is to view the legality or otherwise of declaring an election result inconclusive by INEC in Nigeria. In the course of discussion, the writer will reflect on provisions of the Electoral Act, 2010 as amended. The approach to be adopted in this work will be analytical and expository. To achieve this, reliance would be placed on information gathered from statutes, law reports, text books, journals and internet based sources. The writer concludes that there is no provision parse in the Electoral Act, 2010 as amended that authorizes INEC to declare a result inclusive and will proffer recommendations aimed at strengthen our electoral process in Nigeria. Keywords: Election Result, Inconclusive, INEC, Nigeria, Electoral Act 1. Introduction The laws that govern election in Nigeria are the Constitution2 and the Electoral Act3. The Constitution is the supreme and most important law of the country. Section 1 (3) 4makes it clear that if any other law is inconsistent with the provisions of the Constitution, that the law shall be void to the extent of the inconsistency. The courts have also upheld that section in countless decisions5. In other words no one can occupy elective offices at the local, state or federal level unless he or she has been elected in accordance with the provisions of the Constitution or any law made in accordance with Constitution. 2. Inconclusive Election As at 31st of March 2019, the general election in Nigeria which started on a shaky note in February, 2019 have yet to be completed in some States whose governorship and State Assembly results were declared inconclusive by the State returning officers of the INEC. The polls initially fixed for 16th February and 2nd March, 2019 were shifted to 23rd February and 9th March 2019 by INEC, attributing the decision to logistic problems. INEC conducted governorship elections in 29 States. At the end of the exercise, elections into about seven of the States were declared inconclusive, while that of Rivers State was suspended at the point of collation of results. The basis of INEC’s 1*Nwamaka Adaora IGUH, PhD, Senior Lecturer, Faculty of Law, Nnamdi Azikiwe University, [email protected] 2 CFRN 1999 (as amended) 3 2010 as amended 4 CFRN ibid 5NPA v Eyamba (2005) 12 NWLR (pt939)409 and other decisions. Page | 86 IGUH: The Legality of Declaring An Election Result Inconclusive By Independent National Electoral Commission (INEC) in Nigeria: A Reflection of the Electoral Act 2010 (As Amended) declaration of the elections as inconclusive was that the number of cancelled votes exceeded the margin of win between the two leading candidates in each State. The affected States were Adamawa, Bauchi, Benue, Kano, Plateau, Osun and Sokoto States. According to reports, in Adamawa State, Umaru Fintiri (PDP) scored 367,471 votes as against Jubrila Bindow (APC) 334,995 votes with a margin of 32,476 votes and cancelled votes of 40,988. In Bauchi State, Bala Mohammed (PDP) scored 469,512 votes while Mohammed Abubakar (APC) scored 464,453 votes. 45,312 votes were cancelled, leaving a margin of 4,059 votes. In Benue State, Samuel Ortom (PDP) scored 410,576 votes while Emmanuel Jime (APC) scored 329,022. The margin of win was stated as 81,554 votes while 121,019 votes were cancelled. In Kano State, Abba Yusuf (PDP) polled 1,014,474 votes while Abdullahi Ganduje (APC) scored 987,819 votes. The margin between the two candidates was 26,655 votes while the cancelled votes were 128,572. In Plateau State, Simon Lalong (APC) scored 583,255 votes while Jeremiah Useni (PDP) scored 538,326 votes. The margin between them was 44,377. In Osun State, Ademola Adeleke (PDP) scored 254,698 votes while Gboyega Oyetola scored 254,345. Some 3,498 votes were cancelled. In Sokoto State, Aminu Tambuwal (PDP) scored 489,558 votes while Aliyu Ahmed (APC) scored 486,146. There was a margin of 3,413 votes while 75,403 votes were cancelled6.The writer is of the view that there must be something fundamentally wrong in a system that would declare election in about seven States inconclusive in one election. This concept of ‘inconclusive election’ and ‘the margin of win between two leading candidates’ are two lexicons that should be looked into deeply in our election. Indeed there has never been any major election conducted currently by the electoral body that has not been stymied by inconclusiveness. The history of inconclusive elections can be traced to the controversial event that occurred in Kogi State on 21st November, 2015 when the election won by late Prince Abubakar Audi, who died before the official announcement of his victory, was declared inconclusive by INEC. The late Prince Audu of APC had scored 240,867 votes while Idris Wada of PDP scored 199,514 votes. There was a margin of 41,353 votes between them. The fundamental question is: Can’t an election be won by just one process of voting? How did we come about this idea of ‘margin votes between two leading candidates that we can no longer conclude our election in the first instance? The electoral commission had stated that if the number of registered voters in areas where election were cancelled were more than the margin with which the candidate with the highest number of votes were leading the runner up, such election would be declared inconclusive7. This is against the provisions of section 179(2) & (3) of the Constitution8 which states that ‘ a candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates- a) he has the highest number of votes cast at the election, and (b) he has less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State’: and that ‘(3) in default of a candidate duly elected in accordance with sub section (2) of this section, there shall be a second election in accordance with subsection(4) of this section at which the only candidate shall 6 O Yesuf ,‘That tribunal verdict on Osun guber and the S’ Court decision on Supplementary polls.’ https//www.blueprint.ng, accessed on 24/5/19. 7 Femi Makinde, ‘Inconclusive election: Emerging threat to Nigeria democracy’? https.//the analyst.ng, accessed on 24/5/19. 8 CFRC 1999 as amended Page | 87 AJLHR 3 (2) 2019 be (a) the candidate who secured the highest number of votes cast at the election and (b) one among the remaining who secured a majority of votes in the highest number of local government areas in the State, so however that where there are more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be the second candidate. Despite meeting the requirements of the above stated section, some candidates were not returned as winners and rerun election had to be conducted in some areas and after which winners were declared. The writer submits with respect that supplementary election by INEC is illegal and unconstitutional. This illegality becomes compounded when INEC decides to base its decision to hold a ‘supplementary election’ on the ground that ‘the margin of win between two leading candidates in an election is not in excess of the total number of registered votes’. The illegality of a decision to hold a supplementary election will in the writer’s view be mitigated if it is based on the ground that the margin of win between the two leading candidates is not in excess of the total number of accredited voters who could not vote or total number of cancelled votes cast, since persons accredited in order to vote cannot be compelled to do so and the case of registered voters who wished to vote but could not do so because they were not accredited by INEC or because the security agents failed to secure them and guarantee their participation in the election could not be used as an arbitrary justification for a supplementary election Under the Constitution9 and the Electoral Act (2010 as amended) there are four types of election, a general election, a bye election, a fresh election or rerun election and a run-off (second ballot or third ballot) election, as the case may be. A general election is the regular election that is conducted under the Electoral Act and the Constitution. It may be a presidential, governorship or a legislative house (Senate, House of Representative, or a State House of Assembly) election or election into a Local Government Council or Area Council. A Bye Election is one conducted to fill a legislative seat, which became vacant by the death, resignation, incapacity or recall of an incumbent. A Rerun or a Fresh Election is one conducted, pursuant to an order of an Election Tribunal or Election Appeal Tribunal nullifying the result of a particular election, and directing that a fresh election be conducted in place of the nullified or voided election; Run-off Election is one conducted between two leading candidate vying for a particular office, after the initial election amongst the many candidates contesting for that office has failed to produce a clear winner, who has won not only the majority of the votes cast in the election, but who also has fulfilled the requirements of Electoral Act to be declared a winner and given a certificate of return. It is to be noted that, as it was decided by the Court of Appeal, sitting as an election appeal tribunal in the case of Fayemi v Oni10: A supplementary election is a complementary election ordered by the court upon the voiding of a portion or a part of the whole or total result of an election. In making the order, the portion of the overall election result that is not being contested, is saved and validated, while the part or portion that is successfully contested or challenged is voided and invalidated, and a new election ordered to be conducted in replacement of that voided part. 9 {CFRN 1999 as amended} 10 (2009) 7NWLR, pt 1140,233 at 2929-293,paraC and G Page | 88 IGUH: The Legality of Declaring An Election Result Inconclusive By Independent National Electoral Commission (INEC) in Nigeria: A Reflection of the Electoral Act 2010 (As Amended) Essentially, a court-ordered supplementary election is shorn of this now troubling nomenclature, a partial rerun or a partial fresh election. Unfortunately, that isolated and specific judicial pronouncement is now being used as a general franchise for unconscionable electoral illicitness. Under S. 47 of the Electoral Act11‘voting in any particular election under the Act shall take place on the date and time appointed by the commission throughout the Federation’ S. 178(1) of the constitution provides thus: ‘(1)An election to the office of Governor of a State shall be held on a date to be appointed by INEC’ Section 46 (i)(a) of the Act provides that ‘The commission shall, not later than 14days before the day of election, caused to be published, in such manner as it may deem fit, a notice specifying the day and hour fixed for the poll’. Section 26 (1) of the Electoral Act12 provides that ‘where a date has been appointed for the holding of an election and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the commission may postpone that election and shall in respect of the area or areas concerned appoint another date for the holding of the postponed election provided that such reason for the postponement is cogent and verifiable. Section 26 (3) (4) & (5) of the said Act provides that ‘where the commission appoints a substituted date in accordance with the subsection (1) and (2) of this section, there shall be no return for the election until polling has taken place in the area(s) affected’. (4) Notwithstanding the provision of subsection (3) of this section, the commission may, if satisfied that the result of the election will not be affected by voting in the area(s) in respect of which substituted dates have been appointed, direct that a return of election be made. The decision of the commission under subsection (4) may be challenged by any of the contestant at a court or tribunal of competent jurisdiction and on such challenge, the decision shall be suspended until the matter is determined. The provision of section 26 of the Electoral Act13 only contemplates the ‘postponement of a scheduled election before the ‘arrival’ of the date appointed for the election on any of the three grounds (reasons) therein contained’. The postponement must be before or ahead of the date earlier appointed, not during or after. Furthermore, the postponement of an election date and the appointment of new date for the postponed election must be done in paripassu. Under the said section an indefinite postponement is not envisaged or permissible. The above section is, therefore, not a statutory authority for the family term in Nigeria’s electoral system called ‘Supplementary election’. There is no legal backing in the Electoral Act or in the Constitution, for this electoral practice. INEC has the power to engage in a continuous registration of voters, prepare a supplementary voters list and include and integrate same in the voter register14. But INEC lacks the power to hold a particular election on multiple dates except as allowed under section 26 of the Electoral Act. This was witnessed in the 2011 general election and in particular during the Imo State Governorship Election, Edo State Governorship election, the Ondo State Governorship Election and in Anambra State Governorship election. Whether or not a contestant has won an election is a constitutional matter. The Constitution of the Federal Republic of Nigeria, the supreme law of the land is clear and unambiguous about this. It specifies only two conditions to be fulfilled under s. 179(2) of the Constitution. It is clear from the above provisions of the law that a call for a re-run election can only happen when the result of the voided votes in a polling unit affect 11 2010 (as amended) 12ibid 13 2010 as amended 14Ibid s. 10 (1) (6) and 20 Page | 89 AJLHR 3 (2) 2019 the overall result of the constituency which in this case is the whole of the State. In addressing the issue, INEC has changed the word ‘polling unit’ to ‘polling units’ in Regulation 34(e). By this, it imposes on itself, the duty of collating cancelled votes in a constituency to determine margins of win. No law permits INEC to collate cancelled votes after election. Margin of win has never constituted any impediment to electoral victory in Nigeria until recently. In INEC v Adams Oshiomhole15, INEC had earlier declared 329,740 votes for PDP and 197,472 for AC. In setting aside the INEC’S decision and declaring AC winner, the Court of Appeal cancelled a total of 200,723 of votes scored by PDP and 30,895 of votes scored by AC(cancelling a total of 231,618 votes). The court did not find any reason to call for rerun because the petitioner satisfied the requirements of s. 179(2)(a) & (b) of the Constitution16. It is expedient to mention that Hon. James Abiodun Faleke, running mate to Prince Audu in Kogi State governorship election, vigorously contested INEC’s declaration of inconclusiveness of the election to the Supreme Court in Hon. James Abiodun Faleke v Independent National Electoral Commission & Anor17. The Supreme Court per Kekere-Ekun, JSC, held that ‘…….the 1st respondent(INEC)was correct when it declared the election of 21/11/15 inconclusive on the ground that the margin of win between the two fore- runners at the election was less than the total number of registered voters in 91 affected polling units where elections were cancelled18. This case has now become an albatross on the neck of our electoral jurisprudence. Equally the Supreme Court had ruled in favour of INEC on supplementary election in INEC V Chief Timipre Marlin Sylvia19 (former Bayelsa State Governor), that it was okay for INEC to have its own internal rules to assist it to conduct credible elections as long as such rules would not run afoul of the Constitution. 3. Conclusion Apart from the judgment of the apex court, from the foregoing, it is clear that in the entire circumstances of the current events, the provisions of s.179 of the Constitution is the applicable provision and not INEC Guidelines or Manual. The Supreme Court elevated the INEC Guidelines or Manual above the Constitution. The sacrosanct legal principle remains that where the Constitution sets out conditions for doing an act, no legislation or regulation or guideline or manual can alter them in any way, directly or indirectly. Such is unconstitutional and should be so declared. On reflection, it seems that this policy is very expensive became INEC needs to mobilize to the field again and this is not good for a country that is not economically buoyant like Nigeria. Although democracy is the best, the cost ought to be weighed. Election in civilized countries should be the simplest thing anybody can think of. There is need to do a rethink of that policy because it is causing more harm than good. Unfortunately, most of the supplementary elections are a step backward for our democracy. This trend of the electoral body declaring what it has done or what it is still doing inconclusive could be abused. There could be external influence and this will undermine our democracy. It could equally be viewed as a failure of INEC as an institution. INEC should always organize itself to get out of this situation. 15ibid 16 CFRN 1999 as amended 17 SC.648/2016 delivered in September 2016. 18ibid 19 (2016) LPELR- 41257(SC) Page | 90 AJLHR 3 (2) 2019 RE-EVALUATING THE RELATIONSHIP BETWEEN PATENT RIGHTS AND HUMAN RIGHTS FOR THE ENHANCEMENT OF ACCESS TO ESSENTIAL MEDICINES* Abstract This article analyses the relationship between patent rights and human rights with a view to making a case for broader access to medicines, as a right to health. From a human rights perspective, this paper points to the issues and conflict that arise between patent and human rights. It is argued that patent rights in national laws and the TRIPS Agreement do not exist in a socio-economic and cultural vacuum; instead, they should be enforced and interpreted with regards to public interest and human rights. It is also argued that human rights to health, provide a significant socio- economic and cultural framework for the consideration of patent rights and its effect on the right to access medicines. The study adopts a doctrinal methodology approach to examine, and evaluate the issues that have arisen in the context of patent protection of pharmaceuticals and its effect on women’s human right to access medicines. It recommends that states adopt a public interest, from a human rights perspective, to address issues of access to medicines in light of patent right. Keywords: Access to medicines, patent rights, moral and material interests of inventors, right to health 1. Introduction In recent years, scholars, courts and international organisations have devoted increasing attention to the connectivity between human rights and IP. As Professor Helfer remarks, ‘[h]uman rights and intellectual property, two bodies of law that were once strangers, are becoming increasingly intimate bedfellows.’1 This article aims to further develop the current conceptualisation and understanding of the relationship between patent right and human rights, within the context of access to medicines. The question that arises in this regard for the purpose of analysis in this article are: what is the exact nature of the relationship between a proprietary patent right and human rights? Does this relationship conflict or mutually coexist in a way that can reinforce each other for the common good of society? Are patent rights human rights? If so, how far, and subject to what laws and limits, can human rights be relied upon by patent right holders? These questions are relevant to the examination of the impact of patent rights provisions on access to medicines as a component of the right to health. The first part explains access to medicines through the lens of human rights and outlines the human rights elements for the realization of access to essential medicines. It also delineates the nexus between patent right and the accessibility of medicines. The second part examines the relationship between patent rights and human rights, and the contention that human rights also protect the patent holder’s right. The third part examines the tension between patent rights and human rights to health. The last part calls for a balances approach to the protection of the rights of inventors on the one hand, and the right to health and access to medicines on the other hand. *Jennifer Heaven Mogekwu MIKE, PhD (Exeter), LLM (London Metropolitan University), LLB (Jos),BL, Director of the Centre for Governance, Human rights and Development, American University of Nigeria. Email: [email protected], [email protected] No: +2348184713000 1 Laurence R Helfer, ‘Human Rights and Intellectual Property: Conflict or Coexistence?’ (2003) 5 Minnesota Intellectual Property Review 47, 47. Page | 91 MIKE: Re-Evaluating the Relationship Between Patent Rights and Human Rights for the Enhancement of Access to Essential Medicines 2. The Interconnectivity between Patent Right and Human Rights to Access Essential Medicines Accessing essential medicines is recognized in numerous international law and regulations a part of the right to the highest attainable standard of health and life. Implicit in the objective of the 1948 Universal Declaration of Human Rights (UDHR) to ‘promote social progress’ and ‘better standards of life’ is the recognition that health is a right worth protecting, and a responsibility of states to recognise, protect, enforce and safeguard in Article 25(1). The 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) expounds on this right in Article 12. Article 12(1) gives a general recognition of the rights of everyone to ‘the highest attainable standard of physical and mental health.’ the second aspect of the right in Article 12(2) exhorts a duty on State Parties to take the necessary steps to guarantee and ensure the full realisation of the rights by providing the necessary health-related resources (medicines), facilities, environment, information and conditions. The United Nation’s Committee on Economic, Social and Cultural Rights (CECSR) in General Comment No 14 on the Right to Health has interpreted the normative content and conditions of Article 12 of the ICESCR to include access to essential facilities, products or drugs, means, and services necessary for the realisation of the right to health in a timely and appropriate manner.2 The right to the highest possible standard and protection of health is recognised and promoted in Article 11 of the 1996 European Social Charter (Revised). The African Charter on Human and People’s Rights of 1981 (African Charter) in Article 16(1) also provides that every person is entitled to the ‘best attainable state of physical and mental health.’3 The Article obligates states to take expedient measures to protect the health of their citizens and respond to their medical needs.4Access to medicines as a right to health is also paramount to the enjoyment of other basic human rights such as life, liberty, freedom, etc., since health is indispensable to living a meaningful and fulfilling life in dignity.5 The Inter-American Court of Human Rights in Villagran Morales v Guatemala6 clarified that the right to life also includes a right that a person ‘[…] will not be prevented from having access to the conditions that guarantee a dignified existence.’7 The right to life, health, including medicines, like other human rights, imposes enforceable responsibilities on states.8 These obligations are as follows. Respect; the obligation to respect human rights to health places a binding responsibility on all governments and its organs and duty bearers to desist from interfering directly or indirectly with the right.9 Protect; To protect obligates two duties: to facilitate and enhance; and to prevent any obstruction to accessing healthcare 2 ibid 3 (Nairobi, 27 June 1981, entered into force 21 October 1986, 1520 UNTS 217) (Banjul Charter) 4Article 16 (2), African Charter of 1981. 5 The right to life as a non-derogable right is enshrined in Articles 6 and 4 of the International Covenant on Civil and Political Rights (ICCPR) 6Villagran-Morales et al. v Guatemala (Street Children Case) [1999] Inter-American Court of Human Rights (IACrtHR), Joint Concurring Opinion of Judges in Paragraph 139. Also available at http://www.corteidh.or.cr/ docs/casos/articulos/seriec_63_ing.pdf, last accessed 11 April 2019. 7 ibid paragraph 144. 8 Paul Hunt and others, Neglected Diseases: A Human Rights Analysis (World Health Organization 2007) p.12; Ida Elisabeth Koch, 'Dichotomies, Trichotomies or Waves of Duties?' (2005) 5 Human Rights Law Review 81, 82. 9Ida Elisabeth Koch, 'Dichotomies, Trichotomies or Waves of Duties?' (n 22) 81, 82; Hoferzeil, Samson and Casanova (n 12) 10-11. Page | 92 AJLHR 3 (2) 2019 facilities, services and medicines by third parties.10 Essentially, this obligation mandates the state to facilitate access by preventing medical care providers (private and public) and third parties e.g. pharmaceutical companies, from violating the right to health. Fulfil: the government is obligated to take appropriate legislative, regulatory, budgetary, administrative, judicial, and other necessary measures to progressively fulfil and ensure access to medicines and healthcare facilities for the realisation of the right to health.11This understanding of the general provision of the right to health is important to the articulation in this article because it would require states to be aware of any health consequences in all its legislation and to ensure that laws or policies, agreements and treaties do not obstruct its obligation to guarantee the enjoyment of the right to health. Patent Law and right could impact on this human right to access to these essential medicines in a number of ways. Exclusivity and monopoly are inherent features of IP and patent law.12 Under patent law, no one can use a patented idea without the authorisation of the patent owner.13 While patents in theory only give the innovator a monopoly of rights to prevent others from practising the innovation, exercising this exclusionary right may, in many cases, control the actual access to the innovative resources.14 This results from the ‘right to exclude’ monopoly right which provides an opportunity for patent holders to restrict generic reproduction, control competition, and raise the prices of their innovative products as they deem fit.15 This temporary market exclusivity allows the rights owner discretion to set the price of the drugs, which they usually set much higher than the production costs.16 For poorer people, in developing countries who cannot afford to pay the premium prices that ordinarily flow from patent exclusivity rights, access becomes a grave concern.17 3. Examining the Relationship between a Patent Right and Human Rights The exact relationship between patent rights and human rights is the subject of diverse scholarly debate. Gold summarises the current views on the relationship between patent and human rights thus: the ‘subjugation approach,’ the ‘coexistence approach’ and the ‘integrated approach.’ 18 The ‘subjugation approach’ makes the point that patents, sometimes, comes into conflict with human 10Koch, ibid 88-89. 11 Article 2.1 of the ICECSR; John Tobin, The Right to Health in International Law (OUP 2012) p.194-195; AsbjornEide, ‘Economic, Social and Cultural Rights as Human Rights’ inRichard Pierre Claude and Burns H Weston (eds),Human Rights in the World Community: Issues and Action (University of Pennsylvania Press 2006) p.174-176. 12 WRCornish, Intellectual Property: Patents, Copyrights Trademarks and Allied rights (Sweet and Maxwell 1993) p.47. 13 Michele Boldrin and David K Levine, Against Intellectual Monopoly (Cambridge University Press 2008) p.8; Thomas Pogge, ‘The Health Impact Fund: Boosting Innovation Without Obstructing Free Access’ (2009) 18(1) Cambridge Quarterly of Health Ethics 78, 79. 14M Trebilcock and R Howse, The Regulation of International Trade (Routledge 1995) p.249. 15 Abbe Elizabeth Lockhart Brown, Intellectual Property, Human Rights and Competition: Access to Essential Innovation and Technology (Edward Elgar Publishing 2011) p.1; MSF, 'The Impact of Patents on Access to Medicines' MIKE: Re-Evaluating the Relationship Between Patent Rights and Human Rights for the Enhancement of Access to Essential Medicines rights.19 Analysing the subjugation approach, Helfer observes that IPRs — patent protection — are seen to be incompatible with human rights, by undermining the enjoyment and realisation of a broad spectrum of human rights, especially socio-economic and cultural rights.20 Where this conflict arises, scholars argue that human rights should be given priority and trump patent rights.21 One commentator in arguing that human rights considerations should prevail over rights granted to authors and inventions, writes that ‘[i]ntellectual property rights should be limited when necessary to protect the public health and to the degree necessary to guarantee the general welfare.’22 This article is more inclined to analysing the relationship between patent rights and access to drugs within this context. The ‘coexistence approach,’ advocates assert that patent law and human rights law are two distinct areas of law; although they share the same fundamental goal of contributing to the common good and improvement of human welfare.23 Principally, this school of thought argues that rather than viewing patents and human rights laws as conflicting, they are compatible, mutually supporting each other to promote innovation and access.24 Proponents of this approach point to a number of human rights provisions that seek to assure creators and inventors a protection of their moral and material interest.25 This view may be totally hard to sustain in view of the effect of a patent right on the right to medicines. a patent right can interfere with the right to access medicines under human rights law, thus the question is how to strike a balance between the incentive to innovate on the one hand and access on the other.26 The ‘integrated approach’ views patents and other IPRs as human rights, with emphasis on property rights and the individual inventor’s rights under human rights instruments.27 Advocates of this approach argue that the provisions of tangible property rights should be extended to cover IPRs by assimilating the rights into human rights frameworks.28 The conceptualisation of intellectual proprietary rights as a natural human right was articulated after the French Revolution.29 Article 17 of the 1789 Declaration recognised property rights as an ‘inviolable and sacred right, no one shall be deprived thereof, except where public necessity, legally determined, shall clearly demand it.’30 19 ibid 186-187; Helfer, (n 1) 47, 48; Emmanuel KolawoleOke, 'Patent Rights, Access to Medicines, and the Justiciability of the Right to Health in Kenya, South Africa and India' in Alice Diver and Jacinta Miller (eds), Justiciability of Human Rights Law in Domestic Jurisdictions (Springer International Publishing 2015) p.93-94. 20Helfer, (n 1) 48. 21 Gold (n 19); Helfer, (n 1) 48-49. 22ZitaLazzarini, ‘Making Access to Pharmaceuticals a Reality: Legal Options under TRIPS and the Case of Brazil’ (2003) 6(1) Yale Human Rights and Development Law Journal 103, 123; John Tobin, The Right to Health in International Law (OUP 2012) p.365. 23 Gold (n 19) 188-189; Helfer (n 1) 48-49. 24Helfer, (n 1) 48-49; Gold (n 19) 188-189. 25Gold (n 19) 189. 26ibid; Helfer (n 1) 48-49. 27 Duncan Matthews, Intellectual Property, Human Rights and Development: The Role of NGOS and Social Movements (Edward Elgar 2011) p.205. 28ibid 206. 29IkechiMgbeoji, Global Biopiracy:Patents, Plants, and Indigenous Knowledge (UBC Press 2011) p.19; Eva Brems, Human Rights (Kluwer Law International 2001)19; Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press 2010) p.309-334; John G Sprankling, The International Law of Property (OUP Oxford 2014) p.7, 17. 30Sprankling (n 30) 7. Page | 94 AJLHR 3 (2) 2019 This articulation of property rights sought to attach a sense of morality, equity and fairness to the right as an inherent human entitlement.31 From this proprietary rights assertion, it has been argued that all IP rights are sacred and inviolable human rights entitlements, as set forth in Articles 2 and 17 of the Declaration.32 In this view, a patent right is perceived to extend beyond a mere licence or privilege granted by the state; it is seen to possess characteristics grounded in legal, social and ethical human rights entitlement.33 Viewed from this perspective, it would seem justifiable that pharmaceutical firms or innovators and researchers would want to draw on this ‘natural human right,’ commercially to capitalise on the fruits of their labour through patents. Nonetheless, the question remains, are patent rights human rights within the purview of international human rights law? Put in another way, can the interference of patents with the right to access drugs be justified under human rights law? Human Rights Protection of an Inventor’s Moral and Material Interest It appears that the arguments that patent rights are human rights might find some support in human rights instruments such as the UDHR and ICECSR. Article 27(1) of the UDHR acknowledges the right of everyone to take part in the ‘cultural life of the community.’ Furthermore, the right to benefit from a creative work as a moral and material legal entitlement is accorded recognition in Article 27(2) of the UDHR which provides that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ This provision corresponds with the linguistic articulation and objectives of Article 15(1)(c) and 15(2) of the ICESCR, which obligates the state to recognise an author’s rights to ‘benefit from the protection of the material and moral interest resulting from any scientific, literary or artistic production.’34 These provisions are commonly identified as the basis for the right to the protection of creators and inventor’s interests in intellectual creations.35 It can be said that Article 27(2) of the UDHR and Article 15(1)(c) of the ICESCR underscore the protection of the interests of authors (or inventors or creators, as the case may be) and the result of their intellectual efforts. This protection is not only for the broader advantage of the public to enjoy the benefit of scientific progress and its application in Article 15(1)(b) of the ICESCR, but also because the creative interests and moral rights of the inventors are recognised as worthy of such protection. These human rights provisions raise questions relevant to the present discussion on the relationship between patent rights and human rights to health and life, particularly with regards to access to medicines. Can it be said then that a patent as a proprietary right to the intellectual interest of inventors is a human right within the contemplation of UDHR and ICESR? Moral and Material Rights of Creators/Inventors From the foregoing, the wording of Articles 15(1)(c) of the ICESCR and Article 27(2) of the UDHR expressly seek the protection of an author’s ‘moral’ and ‘material’ interest in his or her intellectual creation. The ‘moral interest’ in an invention, resonates with the natural rights postulations of the 31Mgbeoji (n 30)19. 32LyombeEko, American Exceptionalism, the French Exception, and Digital Media Law (Lexington Books 2013) p.92. 33Mgbeoji (n 30) 19. 34Article 15(1)(c) ICESCR. (Emphasis added.) 35 Peter K Yu, 'Reconceptualizing Intellectual Property Interests in a Human Rights Framework' [2007] UC Davis Law Review 1039, 1044. Page | 95 MIKE: Re-Evaluating the Relationship Between Patent Rights and Human Rights for the Enhancement of Access to Essential Medicines property rights argument.36 This right recognises that a person’s ingenious labour and effort to scientifically, artistically or literarily create a thing is to be protected.37 Moral rights, which are more relevant to the debate for authors of literary and copyrighted works, recognise and protect the non-material interest arising from the intimate connections of an author to his/her work. Essentially, the Articles, by recognising moral interests, seek to protect the intrinsic personal character of an invention or creation of the human mind, including the integrity of an author or creator’s work.38 A moral right also acknowledges the right of an inventor to be so named and recognised as the ‘author’ of the invention.39The ‘material interest’ of inventors, on the other hand, protects his or her rights to deal with, enjoy, transact, and commercially utilise, reap and receive adequate remuneration from the fruit of their inventive labour and intellectual creations.40 It is often the material interest of the inventor that raises a number of questions on the interference of the right of patent holders to earn a living from their inventions and its effect on the right to access medicines. Is a Patent Right a Human Right? A first reading of the human rights provisions in ICECSR and UDHR may suggest that they equate IPRs with other types of human rights.41 This leads some authors, such as Marks, to argue that they provide a human rights justification for patent rights, as well as other forms of human rights.42 That is, the recognition of the inherent human rights interests of creators in their inventions broadly extends to patent rights. Other IP scholars are, however, sceptical of this approach. Schermers argues, for example, that IPRs cannot be rightly categorised as fundamental rights since human rights are ‘of such importance that their international protection includes the right, perhaps even the obligation, of international enforcement.’43Schermers’ argument is premised on the fact that IPRs do not command the sort of protection and enforcement as other types of human rights which are so imperative to humans that ‘no legislative organ may lawfully take these rights away from the citizens.’44 This article shares the opinion that a patent right arising from statute law is not a fundamental human right within the purview of human rights laws. By its very nature, a patent is a statutory creation, whereas other categories of human rights, such as the right to health, are derived from the inherent nature, dignity and worth of all human beings.45 A further distinction can be drawn from the regulatory structure of patent rights. The state, in recognising the rights of patent holders under a national statute, can withdraw or override that right in the interest of the public. The 36The most influential argument for natural rights emerged from the writings of John Locke who believed in the natural entitlement to life, liberty and personal ‘labour of property.’ John Locke, Two treatises of Government (Whitmore and Fenn, and C. Brown 1821) 209-210. 37 Edwin C Hettinger, 'Justifying Intellectual Property' in David Vaver (ed) Intellectual Property Rights: Critical Concepts in Law, Volume 1 (Taylor & Francis 2006) p.103; LiorZemer, The Idea of Authorship in Copyright (Ashgate 2007) p.11 38 CECSR, General Comment No. 17, Paragraph 12; HolgerHestermeyer, Human Rights and the WTO: The Case of Patents and Access to Medicines(Oxford University Press 2008) 157. 39Hestermeyer (n 40) 157. 40ibid 157. 41Oke (n 20) 95. 42 Stephen P Marks, 'Access to Essential Medicines as a Component of the Right to Health' in Andrew Clapham and Mary Robinson (eds), Realizing the right to health (Rüfer& Rub 2009) p.89-90. 43 HG Schermers, 'The International Protection of the Right of Property' in F Matscher and H Petzold (eds), Protecting Human Rights: The European Dimension (Carl HeymannsVerlag KG 1990) p.579. 44ibid 565-580. 45CECSR, General Comment No 17, paragraph 1. See also PokuAdusei, Patenting of Pharmaceuticals and Development in Sub-Saharan Africa: Laws, Institutions, Practices, and Politics (Springer 2013) p.205; Hestermeyer(n 40)154. Page | 96 AJLHR 3 (2) 2019 rights under the UDHR and ICESCR, however, accrue to inventors as inherent rights; hence they are independent of the state’s recognition and grant of exclusivity rights. Most importantly, patent rights exist within a fixed length of time, unlike human rights which are perpetually vested in human beings. Similarly, patent rights, being statutory creations, are assignable, transferable and revocable, an attribute that is not shared by any human right.46 The inherent nature of human rights, one that recognises the inalienable interdependence and indivisibility of all human rights to all human beings, is, in short, fundamentally absent in patent rights.47 PN Bhagwati, in describing the character of human rights, maintains that they are: Not ephemeral, not alterable […] not the product of philosophical whim or political fashion. They have their origin in the fact of the human condition and because of this origin, they are fundamental […] constitutions, conventions or governments do not confer them…Human rights were born not of humans but with humans.48 Sganga, also observes that ‘IPRs belong to the realm of national policies and international trade, as proven by the fact that, contrary to human rights, they are limited in time, limited in scope and— with the exception of moral rights—revocable, forfeitable, licensable and assignable.’49 Stretching this argument further, the right to health is universal, whereas patent rights are territorial in character.This opinion finds support in the clarification by the CECSR in paragraph 3 of the General Comment No 17 which categorically states that IPRs are not to be equated with the human rights provisions of Articles 15(1)(c). The CECSR stresses the point that the human rights recognised in Article 15 (1)(c) solely ‘safeguards the personal link between authors and their creations […] as well as their basic material interests which are necessary to enable authors to enjoy an adequate standard of living.’ IPR regimes, on the other hand, ‘primarily protect business and corporate interests and investments.’50 In other words, a patent right is not coterminous with human rights. To further underscore this point, the CECSR in paragraph 1 of the General Comment 17, clarifies that Human rights are fundamental as they are inherent to the human person as such, whereas intellectual property rights are first and foremost means by which States seek to provide incentives for inventiveness and creativity, encourage the dissemination of creative and innovative productions, as well as the development of cultural identities, and preserve the integrity of scientific, literary, and artistic productions for the benefit of society as a whole.51 Patents for pharmaceuticals, by way of an example, are more concerned with the protection of the investors’ right than the right of inventors who, in most cases, are scientists and researchers whose 46Hestermeyer (n 40) 154. 47 Daniel J Whelan, Indivisible Human Rights: A History (University of Pennsylvania Press 2011) p.187-188. 48 PN Bhagwati ‘Creating a Judiciary Culture to Promote the Enforcement of Women’s Human Rights’ in Andrew Byrnes, Jane Frances Connors and Lum Bik (eds), Advancing the Human Rights of Women: Using International Human Rights Standards in Domestic Litigation (Commonwealth Secretariat 1997) p.21. 49CaterinaSganga, ‘Right to Culture and Copyright: Participation and Access’ in Christophe Geiger (ed), Research Handbook on Human Rights and Intellectual Property (Edward Elgar Publishing 2015) p.569. 50 CECSR, General Comment No 17:The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art. 15, Paragraph. 1 (c) of the Covenant) (Hereafter CECSR, General Comment No 17) paragraph 2. 51 CECSR, General Comment No 17. Page | 97 MIKE: Re-Evaluating the Relationship Between Patent Rights and Human Rights for the Enhancement of Access to Essential Medicines laborious efforts lead to the intellectual production. In the case of a pharmaceutical patent, many people, and in some cases institutions, are involved in the research and production.52 In some cases, employees undertake the research, yet the ownership rights’ may be vested in an individual(s) or an institution who may not be the actual inventors. Indeed, patents are mainly used as economic and utilitarian instruments to advance the policy of the rights-owners.53 This character of patents is unlike the provisions on human rights which are more concerned with the inventor as a person.54 Moreover, human rights are applicable to individuals as humans and cannot be vested in legal entities.55 Patent rights on the other hand can be owned by companies, in fact, the bulk of pharmaceutical patents are actually owned by corporations.56 The CESCR has made it clear that the language of ICESCR is addressed to a natural person; hence the beneficiaries addressed are humans.57 The CESCR adds that under the ‘existing international treaty protection regimes, legal entities are included among the holders of intellectual property rights. However, […] their entitlements, because of their different nature, are not protected at the level of human rights.’58 What this means is that legal personalities cannot derive benefits from the protection of their moral and material interest in an invention under the ICESCR.59 Still on this point, there is a conceptual difference between IP rights and the moral and material interest of the inventors under ICESCR and UDHR.60 The scope of IPRs extends beyond the material and moral interest of the ‘author’ or inventor.61 Although the overall objective of patent protection is to serve a larger development goal for society’s benefit and thus shares a similar goal to human rights values, it is an instrumental right rather than a ‘fundamental’ right.62 This is indicative in the temporal nature and transferable character of patent rights.63 Perhaps a hybrid approach to the relationship between patent rights and human rights may be to argue that a patent right, one that necessarily prevents others from unlawfully appropriating or free riding on a patented invention in order to recoup the cost of investment in the inventive enterprise, recognises the human right i.e material interest of the inventor. From this IP-human rights dimension, the patent rights of inventors, and the moral and material interests of right-holders in human rights law could overlap. That is, a patent holder’s rights under patent law can, at the same time, have human rights characteristics. The patent rights-holders can, within the specific limit of his proprietary interest in the creation, rely on the rights conferred in the human rights instruments to claim the moral and material ownership and benefit of an invention. Likewise, creators/inventors 52Julian Borger, ‘The Industry that Stalks the US Corridors of Power’ The Guardian 13 February 2001. 53Hestermeyer (n 40) 157. 54 ibid 55CECSR, General Comment No. 17 paragraph 7.Hestermeyer (n 40) 155. 56Adusei (n 47) 204. 57 CECSR, General Comment No. 17, paragraph 7. 58 ibid 59Hestermeyer (n 40) 155. 60ibid 154-155. 61ibid 154-155. 62 ibid; Rochelle Cooper Dreyfuss, 'Human Rights: Where is the Paradox?' in FW Grosheide (ed), Intellectual Property and Human Rights: A Paradox (Edward Elgar Publishing 2010) p.79. 63ibid. Page | 98 AJLHR 3 (2) 2019 could rely on the patents right protection under statutory law to seek legal protection and draw material benefit from the invention. However, it is possible for one of the rights to exist without the other. Therefore, even when the patent term has elapsed, the right holder’s moral and material interest as a creator in the invention is not extinguished. In other words, it is possible to have a human rights entitlement to the protection of a scientific and material interest without a corresponding grant of patent right protection. In this manner, a patent protection is also an important medium through which the government can promote the human rights of an inventor as contained in the ICESCR and UDHR.64 This argument should, however, be treated with caution as human rights within the contemplation of the ICECSR and UDHR are clearly not to be equated with patent rights. Thus, to the extent that a patent under the law is a statutory instrument granted by the state within specific boundaries and conditions, it is erroneous to say that it is a human right in its entirety. In this respect a patent protection as a legal instrument under patent law, cannot be said to be a human right in itself. What this indicates is that an inventor’s right in a patent cannot be expected to carry the same weight of enforcement as other fundamental human rights such as the right to health. Thus to answer the question asked at the start of this section, human rights offers little justification for patent holders, and certainly pharmaceutical companies, to interfere with the public interest and the human right to access to medicines.65 4. ‘Balancing’ the Rights of Inventors, and the Public’s Human Rights to Health and Access to Medicines On the issue of the human rights protection of an inventor’s interest on the one hand and the public’s access to the invention such as medicines on the other, the UDHR66 and ICESCR attempt to strike a balance. This is indicative in the provision of Article 15(1)(a) and 15(1)(b) of the ICESCR which recognises the right of everyone to enjoy and take part in ‘cultural life’ and to enjoy ‘the benefit of scientific progress and its applications.’ Fundamentally, these rights provide a moral and legal claim for users to access the fruits of scientific and technological innovations. In this sense, access to the benefits of scientific R&D is placed on an equal standing with the protection of the rights of inventors under Article 15(1)(c). Okediji argues that the ‘user’s interests are just as rights-based as the interests of owners.’67 On her part, Chapman observes from a human rights perspective that benefiting from the products of science and technology presupposes that everyone will have access to them.68 Along this line, the CESCR relates the public policy goals of protecting the moral and material interest of creators to the realisation of other economic, social, and cultural rights. In paragraph 2, the right to benefit from the protection of a ‘scientific, literary and artistic production’ is described in the General Comment No 17 as a means through which creators are 64Hestermeyer (n 40) 154-155. 65 See also SmithKline and French Laboratories Ltd v Netherlands Application 12633/87, (1990) ECHR Decision and Reports. 66 In Article 27 (1), ‘[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.’ 67 Ruth Okediji, ‘The International Relations of Intellectual Property: Narratives of Developing Country Participation in the Global Intellectual Property System’ (2003) 7 Singapore Journal of International and Comparative Law, 346. 68Audrey R Chapman ‘A Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the Benefits of Science’ (WIPO 1998) 2. Available at http://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_5.pdf accessed 17 March 2015. Page | 99 MIKE: Re-Evaluating the Relationship Between Patent Rights and Human Rights for the Enhancement of Access to Essential Medicines encouraged to contribute to ‘arts and sciences and to the progress of a society as a whole.’69 It may be argued that Article 15 of the ICESCR as a whole tries to strike a balance between the recognition of a creator’s right to control his/her intellectual capital and derive benefit from its innovative value and the public’s right to access the products of the invention.70 In this manner, the objective of the protection of the inventor’s interest is to serve a broader societal goal as the right is intrinsically linked with other rights of users in Article 15 to ‘enjoy the benefits of scientific progress.’71 Other fundamental human rights, such as the right to access medicines, will also come under this public welfare benefit to society. Moreover, paragraph 35 of the General Comment No 17 emphasises that the states’ obligation in the context of Article 15 has to take into account other rights recognised under the ICESCR. This mandate would require States, to strike a balance between protecting the private interests of inventors and promoting the larger socio-economic and cultural rights of society to have access to the products of creators. Accordingly, ‘in striking this balance, the private interests of authors should not be unduly favoured and the public interest in enjoying broad access to their productions should be given due consideration’.72 Although there is no delineation of this balance, the clarification that the rights should be balanced with the right to access offers a platform to bolster the argument for a broader reliance on human rights to promote access to medicines within the context of patent rights. This argument can best be understood within the context of the drafting background to Articles 15 of the ICECSR and 27 of the UDHR. A study of the original draft ESCR Covenant of 1954 reveals that Article 15(1)(c) was not included in the first draft.73 The original draft only contained provisions guaranteeing the rights of everyone to partake in cultural life and enjoy the fruits scientific progress (i.e Articles 15(1)(a)(b)).74 Likewise, in the original draft of Article 27 of the UDHR, Article 27(2) which seeks to protect the moral and material interest of authors and creators was not present.75 The Article only included provisions for participation in cultural development and enjoyment of the benefits of scientific advances.76 It would therefore appear that Articles 15 of the ICECSR and 27 of the UDHR were drafted and construed from an ‘end-user’ perspective.77 This is to guarantee that users can derive benefits from scientific creations and inventions and also freely engage in the cultural development of the community. It follows that human rights values and places emphasis on social welfare and promotes society’s interest to have access to scientific developments.78 Thus the later addition of Article 15(1)(c) to the ICECSR cannot qualify the first two paragraphs of Article 15.79 69 CECSR, General Comment No. 17, paragraph 4. 70Hestermeyer (n 40) 158. 71 CECSR, General Comment No. 17, Paragraph 2. 72 CECSR, General Comment No. 17, Paragraph 35. 73Draft Covenant on Economic, Social and Cultural Rights, Commission on Human Rights Report of the Tenth Session, ECOSOC, Eighteenth Session, Supplement No. 7 (DOC E/2573-E/CN.4/705 1954). Note that Article 15 of the current text was in Article 16 of the 1954 Covenant. 74 ibid 75United Nations, Report of the Third Session of the Commission on Human Rights (UN Doc E/800 1948) 13. Article 27 of the current text was in Article 25 of the draft Declaration. 76 ibid 77Philippe Cullet, 'Patents and Medicines: The Relationship between TRIPS and the Human Right to Health' (2003) 79 International Affairs 139, 150. 78 ibid 79 ibid Page | 100 AJLHR 3 (2) 2019 With regards to IPRs and societal benefits (user’s rights), Professor Cullet argues that ‘[h]uman rights treaties require the balance to be attempted from the perspective of society at large.’80 In addition, the CECSR stresses that the recognition of inventor’s or creators’ interest should not be at the risk of the state’s core obligation towards the realisation of the rights to health and access to medicines ‘as well as to take part in cultural life and to enjoy the benefits of scientific progress and its applications.’ The CECSR goes on to emphasise that State Parties have a duty to ensure that the protection of inventor’s rights under IP law does not occasion ‘unreasonably high costs of access to medicines.’81 Furthermore, this rights-based approach also implies that the obligation on states extends to the implementation of patent rights in a way that does not conflict with the right to access the products of the inventor’s scientific progress.82 Therefore, the moral and material interests of the inventors in patent law should not interfere with the right to access medicines. Moreover, Article 30 of the UDHR also stipulates that ‘[n]othing in this Declaration may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.’ Clearly, the right given to inventors in Article 27(2) should not affect the human right to health as stipulated in Article 25, which will include the right to access medicines. What this means is that inventors have very little ground in human rights to stand on as justification for encroaching on the right to access drugs. One author notes that, if any of the socio-economic rights is at risk from the protection of the creator’s interest, the ‘pendulum swings towards supporting diffusion and access to the benefit of the new technology.’83 The cases of Patricia Asero Ochieng, Maurine Atieno, Joseph Munyi, and AIDS Law Project v. Attorney General84 and Smith Kline and French Laboratories Ltd v Netherlands and illustrates the point that public interest is given paramount importance where there is a conflict of interests.85In Patricia Asero Ochieng, Maurine Atieno, Joseph Munyi, and AIDS Law Project v. Attorney General, the Kenyan Courts recognised the precedence of public health and basics human health over private IP rights. The court stated that the ‘right to life, dignity and health of the petitioners must take precedence over the intellectual property rights of patent holders.’86The Court relied on the constitutional human rights of the petitioners to human dignity and highest standard of health as protected under Articles 26(1), 28 and 48 of the Constitution to make the order.87 Although the public policy objective of the Kenya Anti-Counterfeit Act was to prohibit counterfeit goods, the court took into account the effect of the provisions on the petitioners’ access to available and affordable essential medicines, including generic drugs.88 Importantly, this case supports the position adopted that the right to access affordable essential medicines is greater and more critical than the enforcement of IP rights.89 80ibid 152. 81 CECSR, General Comment No. 17, Paragraph 35. 82 ibid 83Hestermeyer (n 40) 158-159. 84Petition No.409, 2009 paragraph 56. 85SmithKline and French Laboratories Ltd v Netherlands Application 12633/87, (1990) ECHR Decision and Reports. 86Paragraph 85 of the court’s decision ibid. 87Paragraph 52 of the decision. 88Paragraph 52 of the decision. 89Paragraph 85 of the decision. Page | 101 MIKE: Re-Evaluating the Relationship Between Patent Rights and Human Rights for the Enhancement of Access to Essential Medicines In Smith Kline and French Laboratories Ltd v Netherlands , the ECHR stated that the granting of compulsory licensing for a patented drug was not an interference with the human rights entitlement under Article 1 of Protocol No 1 of the ECHR.90 Even when the patent holder’s right was recognised as a human right, the court gave primacy to the public interest.91 The ECHR in its ruling found that, although the compulsory license ‘constitutes a control of the use of property,’ the grant was lawful in accordance with the general interest of the public.92 Notably, the general public interest was adopted as a yardstick by the courts to test whether the interference with the use and enjoyment of the proprietor’s right was lawful. In the end, the ECHR came to the conclusion that, ‘the grant of the compulsory licence was lawful and pursued a legitimate aim of encouraging technological and economic development.’93 Since the applicant’s invention prevented the working of a patent that that was beneficial to society, the ECHR considered the long-term interest of the public to benefit from technological and scientific progress to decide in favour of the compulsory licence. It could be said that the right and interests of the patent holder were recognised; hence the ECHR found that the decision of the patent office to grant the licence constituted an interference with the inventor’s rights and use of its property. Yet, the ECHR took into account the broader development goal of the public (the dependent patent in this case) to access and use the patented invention since it was clear that the applicant’s patent limited the use and working of CentrafarmBv’s invention. The ECHR attempted to strike a balance between two competing interests (SmithKline and French Laboratories Ltd and CentrafarmBv) by recognising the overall objective of encouraging technological and economic development as a yardstick to measure their various interests. Perhaps, states can adopt this public interests approach to address issues of access to medicines in light of patent right.In sum, it is imperative to carefully strike a balance between promoting innovative pharmaceutical R&D activities, promoting further innovations and facilitating the availability of cheaper generic drugs and also, promoting competition to facilitate better access to medicines. The key to striking this balance lies in the patent system through its patentable requirements and exclusions, its patentability criteria including the legal exceptions to patent rights, and the public interest related-flexibilities. 5. Conclusion The analysis above highlights the interrelationship between patent rights, inventors’ rights, human rights and the human rights of end users to access scientific advancements.94 Consequently, it has been argued that the rights of inventors, particularly their patent rights, should not constitute a hindrance to the fundamental right to health. If the rights of inventors lead to a reduction in the quest to obtain cost-effective medicines for better health, it may be in violation of fundamental human rights. In particular, the States have a duty to ensure that patent rights, as a means to protecting the human rights and moral and material interests of inventors, does not negatively impact on the quest of women to obtain medicines, and indeed, other follow-on inventors. 90 ibid 91ibid paragraph 2. 92 ibid 93 ibid 94Joo-Young Lee, A Human Rights Framework for Intellectual Property, Innovation and Access to Medicines (Ashgate Publishing Ltd 2015) p. 122, 132 Page | 102 AJLHR 3 (2) 2019 THE JURISPRUDENCE OF ECONOMIC SOVEREIGNTY* Abstract Perhaps, the most outstanding characteristic of a state under international law is its independence. This concept of ‘independence’ was defined in the 1949 Draft Declaration on the Rights and Duties of States prepared by the International Law Commission, as the capacity of a state to provide for its own well-being and development free from the domination of other states, provided it does not impair or violate their legitimate rights. This principle of sovereignty of states underlies all facets of international relations and entails the right of every state, inter alia, to freely exercise full permanent sovereignty over its wealth, natural resources and economic activities including the regulation and exercise of authority over foreign investment within its territory in accordance with its laws and regulations and in conformity with its national objectives and priorities. This study examines in concrete outlives the philosophy of sovereignty in general and economic sovereignty in particular. Keywords: Sovereignty, Economic Sovereignty, Jurisprudence, International Law 1. Introduction Despite the existence of other personalities in international law, states are the primary and most developed subjects of international law. As Friedman observed, ‘the basic reason for this position is, of course, that the world is today organized on the basis of the co-existence of states and the fundamental changes will take place only through state action, whether affirmative or negative’.1States are the repositories of legitimate authority over peoples and territories. It is only in terms of state powers; prerogatives, jurisdictional limits and law making capacities that territorial limit and jurisdictional responsibility for official actions, and a host of other questions of co- existences between nations can be determined. One of the elements of statehood is government i.e. the organ having repository of political power, and exercising effective and exclusive authority over the territory and its population. Internally, the existence of a government implies the capacity to establish and maintain an effective and exclusive administration and a legal order in the sense of constitutional autonomy. Externally, it means the ability to act autonomously on the international level without being legally dependent on other states within the international legal order. This purports independence and sovereignty. Since all states are sovereign, and therefore equal in their sovereignty, which implies the absence of subordination in their relations, the conception of sovereignty as absolute power is unrealistic and unrealizable. According to the eminent jurist, Professor Charles Rousseau, absolute sovereignty can only exist in isolation and not in inter relations. He declares: ‘The claim according to which *MVC OZIOKO, PhD, LLM, BL, Senior Lecturer, Department of International Law and Jurisprudence, NnamdiAzikiwe University, Awka, Nigeria. Phone Number: +2348039464374; and *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, Awka, Nigeria. E-mail: [email protected]. Phone Number: +2348034711211. 1W Friedman, The Changing Structure of International Law, (1964), 213 quoted in I Brownlie, Principles of Public International Law, ((Oxford: University Press, 1990) p. 58 Page | 103 OZIOKO & ORAEGBUNAM: The Jurisprudence of Economic Sovereignty sovereignty is an absolute power is again contradicted by the institution of international responsibility. Sovereignty and responsibility are two antithetical notions and mutually exclusive’2. The term ‘Sovereignty’, evokes such spontaneous thoughts as jurisdiction, rule, supremacy, dominion, ascendancy, authority, hegemony, and control. These terms, all thought of within the context of a nation state, denote ability of a state to govern and direct what goes on within its territory. Sovereignty in political theory is the ultimate overseer, or authority, in the decision- making process of the state and in the maintenance of order. The concept of sovereignty has become one of the most controversial ideas in political science and international law and is closely related to the difficult concepts of state and government and of independence and democracy3. Economic sovereignty is only but an aspect of sovereignty. A clearer understanding of the nature of sovereignty is imperative, before purposing to understand economic sovereignty. This study is aimed at setting the respective limits of sovereignty and economic sovereignty via a doctrinal- analytical approach. 2. Nature of Sovereignty Historically, the concept of sovereignty appears to be as old as creation. From the point of view of Christianity, as indeed for most other religions, sovereignty resides in the creator of the universe.4 By His Omniscience and Omnipotence, God wields both power and authority to which two concepts man must submit in his material existence.5 The word ‘sovereignty’ is in turn by etymological account derived from the old French word soverainete which itself is derived from the medieval Latin word supremitas or supremapotestas meaning ‘Supreme Power’.6 This fundamental element of supreme power emerges, from available literatures as the core of every normative approach to analyzing the meaning of sovereignty. This is vividly captured in the definition of sovereignty as ‘a theory of politics that deals with an ultimate overseer, or authority in the decision- making process of the state and that explains the rules of maintaining orders....’7 Sovereignty is the central attribute of the state as a form of political organization. Sovereignty and statehood have become so closely interlinked that a non-sovereign state tends to be regarded as only a quasi-state. It does not signify merely a certain degree or quantity of power, as if the extent to which a state is sovereign can be measured simply by calculating its relative military and economic power. Sovereignty signifies simultaneously a right to act and a power to act. There are cases where the power of a state to act is so confined and limited that its sovereign right to act is rendered largely meaningless. Equally, there are times when the actual power of a state is so great that, although its sovereign right to use this power has not been formally acknowledged by others, it is tacitly recognized. These are extreme cases, however. Normally, sovereignty means the possession of a right and power, and disputes about sovereignty are disputes about right and power. 2C Rousseau, Le DroitInternationale Public, Tome II, les Sujets de Droit, (Siry, Paris 1994) p. 61 quoted in B O Okere ‘State Responsibility’ (Mimeograph Lecture, Faculty of Law, UNEC). 3 Encyclopedia Britannica, AJLHR 3 (2) 2019 Sovereignty manifests itself in different forms, and this largely accounts for the varying definitions that are given of it. Seen from one angle, the right and power of sovereignty is exercised over territory, and is akin to the right and power of possession or ownership of a portion of the earth's surface. This ownership of territory includes in turn a right and power over all that exists, whether static or mobile, human or non-human, within the territory concerned, and extends to so-called territorial waters and airspace. Sovereignty can be defined more narrowly as the right and power to make the ultimate or final decision about the terms of existence of a whole territorially-based body politic. It denotes a central core of right and power which may be called the right and power of self-determination, that is, a right and power to determine for and by oneself—and not at the command of others—the fundamental issues relating to one's existence. No external body has the right to command or order a sovereign state to act in a given way about matters of fundamental concern to it. The modern theory of sovereignty arose from the reaction of European states to the doctrine of the Holy Roman Empire (created in 962 A.D) according to which the Emperor was superior to all governments, monarchies or republics of the Christian countries. This reaction was also directed against the doctrine of the superiority of the Pope over all Christian rulers. In addition to the reaction against these two external factors, the theory of state sovereignty was also designed to combat, internally, the fissiparous tendencies and centrifugal forces of feudal barons8. The more modern doctrine of sovereignty emerged in Europe in the 16th and 17th centuries. For the Italian political scientist, Niccolo Machiavelli, the security of the prince and the stability of the state constituted an end, which justified all means for its attainment.9The French jurist Jean Bodin was the first to argue at length that sovereignty was an essential attribute of the body politic, and to define its characteristics. Thomas Hobbes provided a more refined and systematic exposition of the concept. These writers were chiefly concerned with the need or desire to preserve and strengthen the unity of the state against the very real dangers of religious civil war. They favoured a monarchical sovereign as being the most ‘indivisible’. However, for John Locke and Jean Jacques Rousseau, the people as a whole constituted the sovereign. To Rousseau, the individual is subject to no other individual but merely to the volonte Generale, the will of the community. Hegel following the thought of Rousseau, stated, ‘the state is the march of God in the world. Its formulation is the power of reason realized as will’.10Austin’s sovereign has no external superior or internal rival. According to him: If a determinate human superior not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in the society and the society (including the superior) is a society political and independent. This perhaps justifies the contention that the meaning of the concept of sovereignty is largely contingent upon the context in which it features; that, there is no objective concept that is 8B O Okere, ‘Evolution of the Concept of Sovereignty’ , Mimeograph Lecture, Faculty of Law, UNEC.p.3 cited in E A Oji and MVC Ozioko, ‘Effect of Globalisation on Sovereignty of States’ (2011) Journal of International Law and JurisprudenceVol 2, p. 5. 9Ibid. 10Jacques Maritain, ‘The Concept of Sovereignty’, Vol. X/iv (1950).American Political Science Review, p. 353. Cited in B O Okere, Ibid, p. 9. Page | 105 OZIOKO & ORAEGBUNAM: The Jurisprudence of Economic Sovereignty universally applicable and yet it is of foundational importance to the concept of a state and indeed of modern political knowledge.11 The issue raised by these conceptions of sovereignty is to determine if these concepts of absolute state power is consistent with modern life and the impact of the globalising world on sovereignty of states. In brief,12 is the concept of sovereignty as absolute power compatible with international solidarity and inter-dependence and have scientific and technological advance which have reduced the world into a ‘global’ village’ influenced or modified the orthodox conception of state sovereignty? Krasner, in his contribution, recognized that the term sovereignty is not an organic whole but has many components. According to him, having one component does not necessarily mean having the other. He categorises how sovereignty has been used into four13: domestic sovereignty; interdependence sovereignty; international legal sovereignty; and Westphalian sovereignty. Domestic sovereignty refers ‘to the nature of domestic authority structures’ and the effective level of control they wield within a state’s borders. Interdependence sovereignty, on the other hand, describes a state’s ability to control trans-border movements. Moreover, international legal sovereignty refers to the process of mutual recognition. Perhaps the most significant use of the term sovereignty for this analysis is the notion of Westphalian sovereignty, which entails ‘the exclusion of external actors from domestic authority configurations’ i.e. autonomy. Interventionist practices are generally seen to violate the non-intervention norm associated with Westphalian sovereignty, as well as international legal sovereignty. It is important to note that the various kinds of sovereignty can co-vary – ‘a state can have one but not the other’14.Krasner’s proposition that states can possess one form of sovereignty, but not necessarily others, is shared by Jackson15, specifically through his notions of positive and negative sovereignty. Negative sovereignty is defined as freedom from external interference (non-intervention). It is a formal legal condition, which can be bestowed onto a state by others16. His categorisation of negative sovereignty resonates with Krasner’s Westphalian and international legal sovereignty. On the other hand, positive sovereignty describes the capabilities ‘which enable governments to be their own masters’. A positively sovereign government is one which has the capacity to provide political goods for those it claims to represent.17 A state may possess negative sovereignty, namely be recognised as sovereign, but lack the capability to provide goods for its citizens. Both Krasner and Jackson suggest that sovereignty consists of both internal and external dimensions. Contemporary state practices exhibit situations of the existence of both internal and external dimensions of sovereignty. For instance, internally, a 11Dan Saroochi, ‘Sovereignty, Economic autonomy, the United States, and the International Trading System: Representations of a Relationship’, EJIL, (2004), Vol. 15 No. 4, 651-676. 12As stated by B O Okere, op cit, p. 10. 13S D Krasner, Problematic Soverignty: Contested Rules and Political Possibilities, (New York: Columbia University Press, 2001) pp. 6–12. AJLHR 3 (2) 2019 state may be unable to exert sovereign acts over its populations and territory; while externally having the recognitions of other states. The meaning of the concept of sovereignty is largely contingent upon the context in which it is applied.18 During the historical development of society, sovereignty appeared alongside the emergence of the State as a socio-political phenomenon and an attribute of the State. The definitions which have been given to this concept have, therefore, for a long time converged in a mutual assessment, that sovereignty means the independence and supremacy of the State.19 The diversity in the definitions is as a result of the different manifestations of sovereignty. For instance, viewed from one angle, the right and power of sovereignty exercised over a territory is often to the right and power of possession or ownership of a portion of the earth’s surface which in turn includes a right and power over all that exists; whether static or mobile, human or non-human, within the territory concerned including the territorial waters and the airspace. From another angle, it manifests in the right and power to make the ultimate or final decision about the terms of existence of a whole territorially based body politic. Yet a third angle involves what is termed as the right to self determination; a right and power to determine for and by oneself and not at the command of others, the fundamental issues relating to one’s existence. Moca captures these core manifestations thus: State sovereignty is the unique, full and indivisible supremacy of State power within the limits of the territorial frontiers and the independence of this power, in relation to any other power, which is expressed in the State’s exclusive and inalienable right to lay down and carry out its home and foreign policy independently, to discharge its functions, to implement the practical measures for organizing its social life at home and its foreign relations on the basis of respect for the sovereignty of other States, for the principles and norms of International Law accepted of its own free will.20 The essential features of sovereignty as can be gleaned from the above are viz: (a) Exclusive state power in discharging the functions specific to the state; (b) Indivisibility – that is, full freedom of choice in using the whole set of prerogative of state power and (c) Inalienability - which connotes the impossibility of ceding power either to some foreign power or to some international body.21 3. Sovereignty in a Globalised World Globalization is the term used to describe one of the most contemporary phenomena of our time; involving the diffusion of ideas, practices and technologies through the various now available means of communication and interaction. It has led to internationalization of most issues in human and state existence. It is not merely liberalization of markets, though in many cases that has been 18D Sarooshi, ‘Sovereignty, Economic Autonomy, the United States and the International Trading System: Representations of a Relationship’ (2004) EJIL Vol. 15 No. 4, p. 652. 19G Elian, The Principle of Sovereignty over Natural Resources (The Netherlands: Sijthof & Noordhoff International Publishers. B.V., 1979) p. 1. 20G Moca, Suveranitatea de Stat siDreptul International Contemporan [State Sovereignty and Contemporary International Law] (Bucharest, Scientific Publishing House, 1970) p. 35 cited in G Eliam, op cit, p. 5. 21S Nastasescu, SuveranitateasiDinamicaRelatiilor International [Sovereignty and the Dynamics of International Relation]) (Bucharest, Political Publishing House, 1976) p. 22-23, cited in G Elian, op cit. Page | 107 OZIOKO & ORAEGBUNAM: The Jurisprudence of Economic Sovereignty the result. The definition by Giddens22 aptly describes this phenomenon: ‘the intensification of worldwide social relations which link distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa’. This involves a change in the way we understand geography and experience localness. As well as offering opportunity, it brings with it considerable risks linked, for example, to technological change. Globalization, thus, has powerful economic, political, cultural and social implications for sovereignty. Sovereignty used to mean final authority. This is no longer so. When philosophers Jean Bodin and Thomas Hobbes elaborated the notion of sovereignty in the 16th and 17th centuries, they were concerned with establishing the legitimacy of a single hierarchy of domestic authority. Although they both accepted the existence of divine and natural law23, they believed the word of the sovereign was law. However, in the contemporary world, sovereignty primarily is linked with the idea that states are autonomous and independent from each other. Within their own boundaries, the members of a polity are free to choose their own form of government. Another point is that no state has the right to intervene in the internal affairs of another state. Sovereignty is also associated with the idea of control over trans- border movements. Finally, sovereignty also means that political authorities can enter into international agreements. States are free to endorse any contract they find attractive. Any treaty among states is legitimate provided that it has not been coerced. This is the new strength of sovereignty. Technological changes over the last 200 years have increased the flow of people, goods, capital, and ideas. The response of states to globalization and its impact on their sovereignty is nothing compared to what followed the invention of the printing press. Most sovereign monarchs could not contain the spread of the concepts that spread with it and many lost not only their kingdoms but also their heads. Despite the perceived impacts of globalization on sovereignty of states, states appear to be stronger and more able to address internal problems and no leader has lost its state yet to globalization. In addition to attempting to control the flows of capital and ideas, states have long struggled to manage the impact of international trade. The opening of long distance trade for bulk commodities in the 19th century created fundamental cleavages in all of the major states. One thing is certain; globalization is changing the scope of state control. The reach of the state has increased in some areas and contracted in others. Rulers have recognized that walking away from issues they cannot resolve can enhance their effective control. For instance, beginning with the Peace of Westphalia, leaders chose to surrender their control over religion because it proved too volatile. Keeping religion within the scope of state authority undermined, rather than strengthened, political stability. Monetary policy is an area where state control has contracted. With the exception of Great Britain, the major European states have established a single monetary authority. Along with the erosion of national currencies, we now see the erosion of national citizenship – the notion that an individual should be a citizen of one and only one country, and that the state has exclusive claims to that person’s loyalty. For many states, there is no longer a sharp distinction between citizens and non- citizens. Permanent residents, guest workers, refugees, and undocumented immigrants are entitled to some bundle of rights even if they cannot vote. The ease of travel and the desire of many 22 A Giddens, The Consequences of Modernity, (Stanford: Stanford University Press, 1990) p. 64. 23Even John Austin accepted that every government let it be ever so powerful, renders occasional obedience to the commands of other governments. This statement we believe concedes to the impracticability of absolute sovereignty. Page | 108 AJLHR 3 (2) 2019 countries to attract either capital or skilled workers have increased incentives to make citizenship more flexible. Treaty is one of the sources of international obligation. It is a basic norm of law that one cannot derive rights and liabilities from a treaty to which he is not party. However, contemporary international law now envisages situations where rights and liabilities are created for states without their being party to such transaction. There are treaties that are assimilable to international executive acts and treaties assimilable to international legislative acts, such as treaties that create objective legal situations like neutralization, demilitarization, internationalization of human rights and conventions codifying existing norms of customary international law24.Membership to an international organization has tremendous impact on the sovereignty of states. This can be appreciated from four sides. The activities of international organizations can have quasi- legislative, Administrative and Supervisory, as well as Jurisdictional effects. This hinders the freedom of member states to act as they please. Transnational non-governmental organizations (NGOs) have much influence over state activities. Throughout the 19th century, there were transnational movements to abolish slavery, promote the rights of women, and improve conditions for workers. The number of transnational NGOs, however, has grown tremendously, from around 200 in 1909 to over 17,000 today.25 The availability of inexpensive and very fast communications technology has made it easier for such groups to organize and make an impact on public policy and international law. Such groups prompt questions about sovereignty because they appear to threaten the integrity of domestic decision- making. Activists who lose on their home territory can pressure foreign governments, which may in turn influence decision makers in the activists’ own nation26.Thus, sovereignty and its import have changed over the past century. It is under this premise that various laws and policies made for the promotion of foreign investment, naturally affect economic sovereignty. 4. Philosophy of Economic Sovereignty The meaning of the term ‘economic sovereignty’ is not entirely clear and is often a source of misunderstanding. Literature uses this term in at least four meanings27: (i) State ownership; (ii) Self-sufficiency which means that a state is economically sovereign if it is able to meet the needs of its population based on its own resources and its own reproduction. (iii) Lack of budget deficit and subsequent lack of indebtedness to foreign creditors (commercial or institutional), financial stability of the state and regular servicing of the budget; and (iv) Ability of the ‘state’ to independently decide on the use of its own resources (policies). 24The UN Charter, Article 2 (6) states that the organization shall ensure that states that are not members of the UN shall act in accordance with the UN Charter. 25S D Krasner, op cit, p.5. 26E A Oji and M V C Ozioko, op cit. 27A Savanovic, ‘Economic Sovereignty’, being the text of a paper delivered at the 12th International Academic Conference, Prague, 1st September 2014. Page | 109 OZIOKO & ORAEGBUNAM: The Jurisprudence of Economic Sovereignty The fourth meaning is critical to this work given that the objective of the work is, inter alia to consider the effect of foreign investments on the Nigerian economy. From the perspective of the meaning and import of sovereignty and for our purpose, sovereignty would refer to the power of national governments to make decisions relating to economic and fiscal regulations of their country, independently of those made by other governments. With absolute sovereignty, would be ability to absolutely control the economy. However, just like in the political and other aspects of sovereignty, globalization has affected economic sovereignty. Almost all countries in the world have accelerated their tempo of economic opening up since the beginning of the 21st century. With the initiative, they expect to inject a new driving force into domestic economic development, and to create new market opportunities. They hope to integrate their domestic economy into the global market, and to develop economic muscles that can punch a worldwide weight. However, for any country, opening the economy to the outside world is by no means a free lunch. The policy will inevitably result in some cost. The cost can be perceived to be a weakening of the nation's ‘economic sovereignty,’ namely the erosion of permanent and exclusive privileges over its economic activities, wealth, and natural resources28. The increase of the number of international organizations and the expansion of their functions has undeniably restricted an individual country's sovereignty to certain extent. The most typical example is the increasingly extensive involvement of the world's three leading financial institutions; the World Bank (WB), the International Momentary Fund (IMF) and the World Trade Organization (WTO) in domestic economic affairs of their members.29 When states also resort to borrowing and other forms of foreign assistance and intervention, they lose the control of their economy and other resources. This loss of economic independence becomes a sign of loss of political sovereignty. It therefore aligns with the Locke-Kantian propositions on sovereignty. According to the classical theory of Kant and Locke, the sense of the transfer of arbitration right among citizens to a single sovereign authority is ‘economic’, in the broad sense of the word. Adopting the Constitution, citizens meet the requirement for unanimity in the ‘constitutive’ phase. After this, in the ‘post- constitutive’ phase, the government acts as an arbitrator within the Constitution. If we were to require unanimity in the post-constitutive phase as well, it would be absurd and the society would be impossible – this would require a referendum decision for each question. This arrangement enables citizens to pursue their own affairs. This involves the appropriation of ownership on the basis of labour, as well as exchange. It also means that the constitutive framework (guaranteed by the government) is in fact a system of rules under which resources may be legitimately appropriated, exchanged and consumed. Therefore, the ownership theory is not so evident but crucial factor in understanding sovereignty, because sovereignty does not exist in a vacuum of some sort; it is not an abstract legal concept. This also serves to clarify the confusion in the formulation of ‘territorial sovereignty’. The state is simply an ‘agent authorized to exercise certain limited forms of control over the citizen’s private property.’ ‘Territorial sovereignty’ means that the state aspires to be the sole arbitrator (‘agent’) on the territory, superior to external factors30. The Locke-Kantian propositions lead us to a consideration of the role of the controlling factor. Where the control factor becomes external, external considerations begin to apply in what ordinarily should be internal, as evidence of sovereignty. This leads to some form of reduction of sovereignty. 28P Zhongying, ‘Globalization vs. Economic Sovereignty’, Yale Global Online, China Daily, 2 December 2005, AJLHR 3 (2) 2019 Most theorists believe that the reduction of sovereignty in globalization occurs as a three- dimensional process. Firstly, it is a process of transferring decisions to supranational entities, such as the African Union (AU), which are given the legislative powers in certain (many) aspects of social, economic and political life. Secondly, it represents an increasing inferiority of states in relation to requirements that come from some external institutions, such as the IMF, WB and WTO. Based on their powers, these institutions are able to force the states to make certain decisions. Third, and perhaps the most interesting, there is a process in which large transnational corporations (TNC), based on their economic power, can influence economic and political decisions of sovereign states31.In making laws and policies that will enhance foreign investments, the national government makes laws and policies that conform to the standards set by these international and supranational organizations and agencies. Savanovic32 presents a typical example of the reduction of sovereignty in the process of formation of supranational entities in the experience of the EU. He makes an illustration with the EU policy of subsidies and support to economic sectors or enterprises of ‘national’ importance for a member state. European Commission makes decisions on support policies, based on formal but arbitrarily adopted criteria. It is obvious that this practice dislocates the sovereign will of a nation to decide on the allocation of its own economic capacities to some sort of external entity. He points out various attempts to overcome this democratic deficit, while remaining within the scope of the ‘Locke-Kant’ scheme. We reproduce them here. The first of them is the top-down model. The concept of linking states into regional, supranational entities such as the EU is considered by many as an aspect of sovereignty decline, but it can be discussed in the opposite context as well. The idea is to preserve the classical form of sovereignty by expanding the scope; to introduce some sort of a supranational state formation instead of a nation-state. The general model, which is particularly discussed in the context of the ‘global state’ idea, is the so-called ‘post-Westphalian transnational public sphere’, which would raise the concept of civil sovereignty to the ‘global’ level or to the regional level in the previous phase. This model is actually a variation of the original Locke-Kant scheme of sovereignty, only expanded. The issue of democratic legitimacy here is reduced to the technological question of existence of a ‘planetary square’ (owing to new communication technologies) or a global forum/agora and/or emergence of supranational elections for supranational parliaments. The second one is the bottom-up model. Contrary to the previous one, this model proposes policies of decentralization and transfer of power to local areas and regional levels. It can occur in the form of secessionist movements. The theoretical model that promotes this option of the radical decline of sovereignty of nation-states and transfer of power to local levels is anarcho-capitalism, a radical libertarian branch. It promotes the politics of secession of regional and local entities from the central government. The arguments here are not national but strictly economic – the need for local communities to handle their own tax money, instead of transferring it to the national government. This second proposition will certainly violate certain principles of the United Nation Charter in that it encourages disintegration of the state and may create anarchy and threaten international peace and security. 31A Savanovic, op cit. 32Ibid. Page | 111 OZIOKO & ORAEGBUNAM: The Jurisprudence of Economic Sovereignty Writing in 1968, Vernon33 commented on a statement made by the President of the United States thirty-six years previously. The President had observed that the U.S. tariff was ‘solely a domestic question,’ a subject inappropriate for international bargaining. This view was valid at the time. The times have certainly changed. Today, the commitments of nations to the WTO, cover the subject of tariffs, import and export licenses, and subsidies; the level of foreign exchange rates and the price of gold; the price and quality of international air service; the price of coffee, wheat, sugar and tin; safety-at-sea standards, deep-sea fishing and whaling rights; wild life preservations, environmental usage, human rights and humanitarian issues. There is a pooling of foreign-aid funds through the World Bank and various regional banking institutions; a pooling of international technical assistance efforts through numerous U.N. agencies. More important still, through institutions such as the International Monetary Fund and the Organization for Economic Cooperation and Development (OECD) there are well-entrenched habits of international consultation and international persuasion on ‘domestic’ subjects of the most sensitive sort: on internal interest rates, on budgetary and fiscal policy and on employment and incomes policy. A decent respect for the opinions of mankind now seems to require a willingness on the part of sovereigns to expose many critical national economic policies to the collective scrutiny of a jury of peers34.Be that as it may, one must not lose cognizance of the fact that in the final instance, the sovereign will of the citizens, represented by the sovereign functions of the state, given that states have become members of a globalised world, the exercise of these wills are influenced by standards set from outside the state. It is certain that the government and the people are not economically sovereign; even the political sovereignty is also reduced to a great extent. However, the decision, itself, to be part of the global political and economic interaction, is itself an expression of the sovereign will of the polity. From the above exposition, it can safely be surmised that the regulation by a State of its economic affairs is a legitimate exercise of sovereignty. Okorodudu-Fubara posits that one of the most distinctive features of sovereignty is the State’s prerogative to determine the country’s political or economic course without compelling interference from external influences or dictates.35 As remarked by the league of Nation Committee in 1937, ‘every country seeks and seeks rightly, to protect its own economy’.36 As Elian asserts ‘sovereignty includes the right of the State to freely exploit its resources and wealth on the basis of its economic independence. This right is part and parcel of state sovereignty’.37 In the Austrian-German Custom Union38 which dealt with the interpretation of the Treaty of St. German and the Separation of Austria from Germany as a means of weakening the latter, the PCIJ indicated the essential nature of economic sovereignty as follows: The independence of Austria, according to Article 88 of the Treaty of St. Germain, must be understood to mean the continued existence of Austria within her present frontiers as a separate State with sole right of decision in all matters, economic, political, financial or otherwise with the result that the 33‘Economic Sovereignty at Bay’, Foreign Affairs, 1968 Issue, Available at AJLHR 3 (2) 2019 independence in violated, as soon as there is any violation thereof, either in the economic, political or any other field; these different aspects of independence being in practice one and indivisible.39 This concept of economic sovereignty has found ample expression in many International Law instruments and norms which affirm the right of every State to permanent sovereignty over the resources that are found within its territory with all its attendant connotations. Starting with the United National Charter,40 Elian writes that permanent sovereignty of States over natural resources can be considered a principle which can be inferred from numerous texts of the Charter.41 Article 1, for instance, reflects a nation’s right to determine and shape its own fate and the equal rights of nations in their friendly relations with each other. Article 55 affirms the necessity for the United Nations to promote higher standards of living, full employment and conditions of economic and social progress and development as well as solutions of international economic and other related problems through recognition and respect for the principle of equal rights and self-determination of people. Thirdly, Article 76 provides for the promotion the political advancement of nations and the support they must be given with a view to obtaining independence and to administering themselves. As Elian further asserts,42 these are among the principles recorded in the U.N. Charter on whose basis one cannot imagine complete sovereignty without the right of the States exclusively to dispose of the goods and resources on their own territories. Indeed, in December 1952, the UN General Assembly passed a resolution43 which asserted that ‘the right of peoples freely to use and exploit their natural wealth and resources is inherent in their sovereignty and is in accord with the purposes and principles of the charter of the United Nations’.44 Resources became more crystallized by the adoption in 1962 of the United Nations General Assembly (U.N.G.A.) Resolution 1803 (XVII)45 which declared, inter alia, that the rights of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well being of the people of the State concerned. It furthered declared that the exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorisation, restriction or prohibition of such activities.46 The text of this resolution is widely considered as reflecting the International Law on the subject and accepted as such in a number of cases such as the Texacocase47 and the Aminoilcase.48Nonetheless the most assertive and authoritative international law instrument relating to economic sovereignty of States appears to be the Charter of Economic Rights and Duties of 39Ibid. See also U O Umezurike: Self Determination in International Law (Lagos: Archon, 1972) p. 205 40Adopted in 1945. 41 G Elian, op cit, p. 24. 42Ibid. 43 U.N.G.A. Resolution 626 (VII) of December 21, 1952 described by some as the ‘Nationalization Resolution’. 44See M Bedjaoui (ed), International Law: Achievements and Prospects’ (UNESCO: MartinusNijhoff publishers, 1991) p. 601. See also Article 1(2) of the International Covenants on Human Right 1952 dealing with self determination. 45Adopted on 14 December 1962. 46 See Articles 1-3. 47Texaco Overseas Petroleum Co and California Asiatic Oil Co. v Libya (1977) 53 I.L.R. 389. 48Kuwait v American Independent Oil Co. (1982) 21 I.L.M. 976. Page | 113 OZIOKO & ORAEGBUNAM: The Jurisprudence of Economic Sovereignty States adopted by the UN General Assembly on 12 December 1974.49 The tone for the adoption of the Charter was set by the Declaration on the Establishment of a New International Economic Order adopted earlier in the same year by the UN General Assembly.50By Article 1 of the Charter, every State has the sovereign and inalienable right to close its economic system as well as its political, social and cultural systems in accordance with the will of its people, without outside interference, coercion or threat in any form whatsoever. Article 2 provides that every state has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth natural resources and economic activities. To this end, each State has the right: (a) to regulate and exercise authority over foreign investment within its national jurisdiction in accordance with its laws and regulations and in conformity with its national objectives and priorities.... (b) to regulate and supervise the activities of transnational corporations within its national jurisdiction and take measures to ensure that such activities comply within its laws, rules and regulations and conform with its economic and social policies.... (c) To nationalise, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the state considers pertinent.’ Article 4 of the Charter guarantees to every state the right to engage in international trade and other forms of economic co-operation, irrespective of any differences in political, economic and social systems. Furthermore, by Article 7 ‘every State has the primary responsibility to promote the economic, social and cultural development of the people, to choose its means and goals of development, to fully mobilise and use its resources, to implement progressive economic and social reforms and to ensure the full participation of its peoples in the process and benefits of development’. 4. Conclusion In summary, it seems inescapable to conclude from the above enquiry into the meaning of economic sovereignty, that all states, whatever their social-political organisation, have their competence over the unfolding of their economic relations both at home and abroad. This competence is nothing else, other than an expression of State sovereignty of translating into life one of its characteristic features of independence.51 As Elian holds, ‘the State’s political independence does not and cannot actually exist without the achievement of economic independence. In its turn, economic independence is asserted to the extent to which the State manages to answer national economic interests and first of all to meet the necessities for development, without for one moment forgetting the satisfaction of its citizens’ economic requirements. The States’ economic tasks are fulfilled as a manifestation of sovereignty, which from this point of view as well remains the principal prerogative of the modern state’.52 49U.N.G.A Res 3281 (XXIX). 50 See U.N.G.A. Res 3201 (SVI) of 1974. 51Elian, op cit, 16. 52Ibid. Page | 114 AJLHR 3 (2) 2019 NIGERIA’S MULTI-RELIGIOUS PRACTICE: A CHALLENGE TO SUSTAINABLE ENVIRONMENTAL PROTECTION* Abstract Religious diversity has its own detrimental impact on the Environment. Religious practices have caused land, water and air pollution lots of place around the world and Nigeria in particular. This pepper x-rayed some of the negative effects of these multi- religious practices on the environment, and suggested that proper law and effective implementation of the laws will go a long way in reducing the impacts of these religious on the environment. Keywords: Multi-religious, Environmental Protection, Sustainable, Nigeria 1. Introduction Multi-religious stance of Nigeria stems from the singular fact that the nature of our Constitution recognizes the existence of religious bodies provided it does not infringe on the right of existence of other religions. Section 10 of the Constitution of the Federal Republic of Nigeria (as amended) provides that the government of the Federation or of a state shall not adopt any religion as state religion. This simply means that citizens of the nation are at the liberty to have and practice a form of religion. The exploration of the potential religion possesses, leads to explosions of faith by the practitioners and adherents of different religions. The Constitution of Nigeria guaranteed all Nigerian the right to freedom to practice their religion, thus it stated that: Every person shall be entitled to freedom of thought, conscience and religion including freedom to change his religion or belief and freedom (either alone or in community with others and in public or private) to manifest and propagate his religion or belief in worship, teaching, practice and observance1. Nigeria houses multi-religion with Christianity and Islam nearly equally divided though the exact ratio is uncertain. There is also a growing population of other religious Nigerians who adhere to traditional religion and accounted for the remaining percent. Nigeria has always been a pluralistic state with very diverse ethnics, religious, cultural, linguistic, economic, and social characteristics. In spite of these diversities, Nigeria have tried to live more or less in harmony tolerating each other’s religious beliefs until now2. The phenomenon of religious crisis are recent developments which obviously have been developed by self seeking individuals and groups to further their selfish interest, with most of the so-called religious crisis are indeed not religious in origin but have ethnic and political undertone3. As many as these religious bodies are, so are their practices and observances. Examination of these practices and how healthy these are to the environment is the focus of this paper. * 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 Section 38 (1) of The Constitution of The Federal Republic of Nigeria (as amended) 2Ibrahim Ahmadu, ‘2007 Annual Lecture of the National Association of Seadog, Aba Chapter, March 10th 2007, at Abia Hotels Abia State. www.nas-int.org accessed 22/4/2018. 3ibid Page | 115 EMELIE: Nigeria’s Multi-Religious Practice: A Challenge to Sustainable Environmental Protection 2. Conceptual Framework Religion Religion is the set of beliefs, feelings dogmas and practice that define the relation between human being and sacred or divinity. It is the belief in the worship of a super human controlling power especially a personal God or god4. Religion also means belief in the existence of a supernatural ruling power, the controller of the universe, who has given to man a spiritual nature which continues to exist after the death of the body. In fact it is the belief in the existence of a god or gods, and the activities that are connected with the worship of them5. It is unlike science, a matter of the mind not of the head and because it rules the mind it is often described as the opium of the masses6. Sustainable Environment This means the maintenance of the factors and practices that contribute to the quality of environment on a long-term basis. It is a state in which the demand placed on the environment can be met without reducing its capacity to allow people to live well, now and in the future7. Evidence is strong that we are exceeding and eroding the earth’s carrying capacity, that there are limits to growth on a finite planet. It helps to ensure that the needs of today’s population are met without jeopardizing the ability of future generations to meet their needs. Environmental Protection Environmental protection is the third pillar and to many, the primary concern of the future of humanity. It defines how we should study and protect ecosystems, air quality, integrity and sustainability of our resources and focusing on the elements that place stress on the environment. It also concerns how technology will drive our greener future. It means protecting the environment from potential damage that technological advances could potentially bring8. 3. Religious Practices that Harm the Environment Religion as earlier stated refers to approaches to human spirituality which usually encompasses a set of narratives, symbols, beliefs and practices often with a supernatural or transcendent quality, which gives meaning to the practitioner’s experience of life. As much as the message of Christianity and Islam have taken over major part of the country, there is also the indigenous traditional religion, this indigenous religions are simply the worship of inanimate objects, the worship of rocks, trees or some mysterious animals like lion or a huge Python which they believe to be their source of strength or spiritual guide9. Religious practices have caused land, water and air pollution in lots of 4 What is Religion, e.n.m. Wikipedia.org, accessed 22/4/2018. 5 A.S Hornby, Oxford Advanced Learner’s Dictionary (7thed), Oxford University Press, New York, 2006, p1231. 6S.A.M. Ekwenze, Nigeria’s Multi-Religious Platform: A Myth or Reality – Public Holidays A Question. www.solomonekwenze.org accessed 22/4/2018. 7 Environmental Sustainability , Financial Times, Lexicon.ft.com accessed 22/4/2018. 8 What Is Sustainability and Why is it Important ? Environmental Science, www.environmentalscience.org accessed 22/4/2018. 9 Total-facts about Nigeria.com accessed 22/4/2018. Page | 116 AJLHR 3 (2) 2019 places around the world Nigeria in particular. For example, festivals10, apart from causing air pollution by bonfires, throwing abundant quantities of colored powders and liquid at each other is also a problem. These colors are said to contain chemicals like lead oxide and aluminum bromide, these chemicals of course end up in rivers, lakes and other water bodies that are already suffering from a great deal of industrial, municipal and agricultural pollution. According to a group of scientists, The discharge of toxic colors in the soil and water has a deleterious effect on the water resources, soil fertility, micro-organism living in these habitats and the ecosystem integrity on the whole. These colors are not readily degradable under natural conditions and are typically not removed from waste water/stream by conventional waste water treatment11. Also, in Mumbai, Hindus carried their twenty-foot-tall plaster of Paris idols of the elephant god Ganesh into the sea and left them on the ocean floor to symbolize the impermanence of life, further polluting the scarce water resources of Western India. In Hong Kong and Singapore, Taoists burn paper money to appease ‘hungry ghosts’ filling the air with smoke and dangerous toxins12. Close to this is the practice at the holy city of Varanasi, where thousands of Hindus are cremated every year so that their remains can be scattered in the river. The cremation rituals takes place on the Ghats or steps that leads down to the rivers, often, the cremation ceremony does not completely burn the dead bodies (and at other times, people who are too poor to pay for cremation simply have their corpses left in the river) so that section of the city or river is littered with floating corpses and partial corpses. The unfortunate thing is that people and communities around this river still depend on the river as their source of water supply for domestic activities13. In Nigeria, the story is not different, considering the frequency, exuberances and number of participants in religious celebrations in Nigeria, the events of which are bound to cause at least some degree of environmental pollution. For example, the traditional religious bodies revered Rivers, many of the traditionalists believes that the river is the home of the goddess (in Igbo land referred to as ‘Eze Nwanyi’). A gift from the gods or the earthly incarnation of the gods and that bathing, drinking or having items thrown or placed by the side of the river (which will definitely find its way into the river) will wash away their sins and problems, and give them freedom from their earthly challenges. A visit to the Idemili river at Obosi in Idemili North L.G.A and Mnmili John river at Ojoto in Idemili South L.G.A all in Anambra state, will show how polluted these rivers are, among other things. The rivers are filled with garbage, assorted items both animal and human as the items placed near the rivers eventually also found themselves in the river. These rivers are not even clean enough for agricultural use, much less for drinking or swimming. This continuous 10 ‘Holi’ is the ancient Hindu festival of colors and love. It marks the arrival of spring and it is celebrated in India, Nepal and many parts of South Asia. 11Hemant Mehta, ‘ How Hindu Religious Rituals Harm The Environment’, 2016 www.patheos.com accessed 22/4/2018. 12 Jay Wexler, ‘Can Religious Practice and Environmental Protection Co-Exist?’ 2016, Wiley Online Library accessed 22/4/2018. 13Jay Wexler, ‘ Can Religious Practice and Environmental protection Co –exist? 2016,wiley online library. Accessed 22-4- 2018. Page | 117 EMELIE: Nigeria’s Multi-Religious Practice: A Challenge to Sustainable Environmental Protection religious practice particularly at the mnmili John river has caused the people living and making use of the river to cry out to the town authority to come to their aid by helping them find solution to these religious practices that have turned their only source of water to a ritual ground14. Another religious practice is the massive amount of ritual bathing particularly performed by the white garment religious sect. Every year during a particular religious festival, over hundred thousand of people are gathered to bath in one portion of the river. A research shows that the biological oxygen demand level of the river, which is an indication of the organic pollution present, rose to twice the recommended level on just the very first day at the site of mass bathing. This particular religious festival is expected to last for about seven days15. There is also the Christian practice of embalming of the dead with all those toxic chemicals and other stuff, these chemicals causes air pollution as witnessed by this writer during her visit to the mortuary to deposit the corpse of her late mother. These chemicals apart from polluting the air, will in one way or the other find themselves on the land and eventually in our water streams. Another Christian religious practice which cause harm to the environment is the practice of burning candle, incense and the use of other religious scents which no matter how holy one may think they are, alters the physical, chemical and biological components of the air, thereby resulting in the pollution of the air. There is also the use of powerful public address system, mounting of amplifiers and using amplifiers to call devotees to Salah during religious programs and activities contributes to noise pollution. These religious bodies are not concerned with the dictates of their religion and the neighborhood principle16. Their activities no doubt cause disturbances and inconveniences for those living in the vicinity of these religious bodies. These disturbances are normally referred to as neighborhood noise which is one of the sources of noise pollution. Noise pollution is known as to cause hearing impairment, sleeplessness, high blood pressure among others. Finally, the Muslim religious festivals which involve ram or other animal sacrifice have their own one or two pollution problem either on the land, air and water, especially in the urban areas. As many as the religions are, so are their different practices that cause harm to the environment. The love for these religious practices has led Long17 to express as follows: I do not understand the love of tradition…especially when it cannot be questioned or examined because it is our religion. I have seen many of the actions of various religions and traditions and very few are worth anything positive and most are very negative to the people and environment…Islam loves killing thousands of animals so often- why? Hindus will dip their sick bodies into one of the most polluted rivers in the world – why? Thousands of Christians travel far and near for healing (that does not work) leaving piles of garbage behind. 14 C.I.N Emelie is from Ojoto and had personally witnessed the religious practice in mnmili John River in Ojoto. 15 C.R. Jones, ‘The Impact of Religious Faith on Attitudes to Environmental Issues and Carbon Capture and Storage Technologies: A Mixed Method Study, www.sciencedirect.com accessed 22/4/2018. 16Rafiu Ibrahim Adebayo, ‘Abuse of Religion and Environmental Pollution in Nigeria: An Islamic Perspective,’ 7th 2010,www.researchgate.net accessed 22/4/2018 pp 9-10. 17 In Hemant Mehta, How Hindu Religious Rituals Harms the Environment. Note 9. Page | 118 AJLHR 3 (2) 2019 3. Strategies for Effective Balancing of Religious Practices with Environmental Protection a) In collaboration with religious leaders the government should create artificial rivers for the traditional religious bodies so that they do not pollute the actual water bodies. b) The government must be sensitive to the nature of the religious rituals and its effects on the environment, before it can address the problem. There is need for more scientific research. c) Research should be carried out on the effects of these religious practices because the more we know about the practices, the more we find the best ways to deal with environmental problems created by the practices. d) There should be large-scale efforts to increase public awareness regarding the health hazards of these harmful practices and make suggestions for a safer alternatives which will go a long way in enhancing an environmental conscious practice. e) The law as an agent of change should play an active role in controlling the activities of these religious bodies. Although there are laws in place to address these forms of pollution from the practices of these religious bodies, these laws are not enforced. Government regulations are capable of taking away the vitality and vibrancy of these religious practices. f) There should be conscious desire by the religious bodies for more societal activism and support with regard to protecting the environment. g) There should be a religious-environmental framework to guide government policy to create both multi religious social cohesion as well as environmental protection. This will contribute to upholding the fundamental pillars of religion and national harmony. 4. Conclusion Religious diversity has a more detrimental impact on the environment than ethnic diversity. These differences are capable of lowering collective action and reduce public spending on environmental protection and performance. Religious practices contribute greatly to the low level of concern about the environment18. Different religious bodies have diverse values towards the environment, while some Christian believes that man should subdue the environment, others believes that the environment should be cared for. Still others encourage individuals to welcome the growing environmental problems as positive signs of the second coming of Christ. Islam on its part seeks to link creation with divine revelation and seeing the environment as testimony to Allah’s all encompassing presence. In all, the religious bodies acknowledges the vital place of un degraded environment in the affairs of man, however their various religious practices has covered their eyes and senses and has distanced them from according the same environment the protection it requires. 18Matthew B. Arbuckle, ‘The Role of Religion in Environmental Attitude, 2015, https://doi.org/10.1111/ssqu.12213 accessed 22-4-2018. Page | 119 AJLHR 3 (2) 2019 THE ‘CONCURRENCY’/ ‘COORDINACY’ OF THE JURISDICTION OF STATES’ HIGH COURTS, CUSTOMARY AND SHARIA COURTS OF APPEAL: CONSTITUTIONAL MATTERS ARISING* Abstract Legal practitioners are sometimes faced with the challenge of which appellate court to go from the decisions of customary/area /sharia courts. This confusion sometimes is heightened when the issues intended to be canvassed at the appellate court are not solely customary or, if Islamic, not purely ‘Islamic personal law’. This piece, employing the analytical method, has consulted and analysed statutes and judicial precedents and text books to put away the erroneous notion entertained by some jurists that the states’ high courts, customary courts of appeal and sharia courts of appeal cannot be courts of coordinate jurisdiction1. It recommends, among other things, for the introduction of the topic of ‘courts of coordinate jurisdictions’ in the law curriculum as it will enhance unity of people of diverse religions and cultures through the practice of law. Keywords: Coordinate, concurrent, jurisdiction, high court, customary court of appeal and sharia court. 1. Introduction Bryan et al define coordinate/concurrent jurisdiction to mean ‘Jurisdiction that might be exercised simultaneously by more than one court over the same subject matter and within the same territory, a litigant having the right to choose the court in which to file the action.2 ‘Subject matter’ in this definition would mean such areas that are constitutionally/statutorily defined to be within the limits of the jurisdiction of a court. While such ‘areas’ may be available to all state high courts for instance, would it be right for an action to be instituted in one state when the matter emanated from another state? Perhaps, this is the reason for the use of the word ‘territory’ in the definition to secure states’ territorial judicial independence. 2. Glean from some previous Nigerian constitutions The pre-1979 constitutions3 of the Federal Republic of Nigeria did not make provisions for courts other than the High Court of Lagos and the Federal Supreme Court. Each region was to establish its own courts by its constitution4. For instance, the original jurisdiction to hear matters of fundamental rights was conferred on regional high courts by the Constitution of the Federation of Nigeria, 19605. A high court judge, sitting on appeal or at first instance, would have concurrent jurisdiction with another high judge of the same region. The Sharia Court of appeal could be established by any region that had need for one6. They were to exercise jurisdiction on matters of fundamental rights7. The Constitution appeared to have conferred on *Musa Y. SULEIMAN, PhD, Legal Practitioner based in Abuja and Legal Researcher. Phone No. 08029717918/08038431006. Email: [email protected] 1 This was the notion entertained by the Supreme Court in Usman v. Umaru(1992) 2 N.S.C.C. (pt. 2) 637 at 646, where his Lordship, Ogundare J.S.C. remarked that ‘... where any two of these three courts [high court, sharia court of appeal and the customary court of appeal] will have concurrent jurisdiction to entertain an appeal...’ 2Bryan A. Garner, Tiger Jackson and Jeff Newman, Black’s Law N Dictionary (8th edn.) (New York: West Publishing Group, 1999) p. 868. 3The 1960 and 1963 Constitutions of the Federation of Nigeria. 4 (n3) s5(6)(a). 5 The 1960 Constitution of Nigeria, s31. Cf. The Constitution of Nigeria 1963, s32(1) and (2). 6 (n3). It was by this provision that the Northern Region established the Sharia Court of Appeal in 1960. See section 119 of the Constitution of Nigeria, 1963. 7 (n3) s 112(1)(b). Page | 120 SULEIMAN: The ‘Concurrency’/ ‘Coordinacy’ of the Jurisdiction of States’ High Courts, Customary and Sharia Courts of Appeal: Constitutional Matters Arising the High Court of Lagos and the Sharia Court of Appeal concurrent jurisdiction on fundamental rights matters8 if Lagos had opted for a sharia court of appeal. This jurisdiction would not have been in the area of applying for the enforcement of the right, but making a pronouncement on its violation or ensuring compliance with it by the sharia court of appeal in situations that a litigant would have gone to the high court to have the decision of an inferior court quashed for such violation. Similarly, any High Court that was to be established by a region pursuant to the constitution 9 would have had a concurrent jurisdiction with the sharia court of appeal established for that region10.The 1963 Constitution of the Federation of Nigeria provided for only the High Court of Lagos11. The court was the Capital Territory High Court, which ‘shall be a superior court of record’ and ‘shall have all the powers [jurisdiction] of that court’. Regional high courts were left to be established by regional constitutions12. All high courts, referred to in the constitution as ‘high court of a territory’13 were to hear cases of the infringement of human rights under the constitution14. The high courts were to hear matters of the infringement of human rights during this regime at first instance while the sharia court of appeal was to determine whether there have been violations of the provisions of ‘Chapter three’ (fundamental rights) of that constitution. A person, who raised the question of the violation of a fundamental right provision before a sharia court of appeal in a matter, would certainly have had the option of going to the high court for the enforcement of that right by quashing the decision of the court from where appeals went to the sharia court of appeal. At this point the high courts of ‘territories’ had concurrent jurisdiction with the sharia court of appeal. States’ high courts enjoyed ‘unlimited jurisdiction’ in any ‘proceedings’ under the1979 Constitution of the Federal Republic of Nigeria15. The section remedied the encumbrance on the jurisdiction of high courts of regions under the 1963 Constitution of the Federation of Nigeria.16 This revolutionary constitution made provisions for states that wished to establish a customary court of appeal17 and a sharia court of appeal18 in addition to their high court. This ‘unlimited’ ‘jurisdiction’ of the high court covered its ‘original’, ‘appellate’ and ‘supervisory’ jurisdictions19 despite the constitutional provisions for customary courts of appeal and sharia courts of appeal20. The latitude of the ‘civil jurisdiction’ of the state high court made it indisputable that it had concurrent jurisdiction with the sharia court of appeal and the customary court of appeal since both the sharia court of appeal21 and customary court of appeal22 of states had no exclusive jurisdiction to hear appeals from sharia courts and area/customary courts23. Furthermore, no law of the state ‘limiting’ the jurisdiction of the state high court in proceedings that lie to sharia court of appeal and the customary court of appeal would have been vires the 8 (n3) s118 (1)(d). 9 (n3) s5(6)(a). 10 (n3) ss31 (1) and 118(1)(d). 11 s122. 12(n11) s5 (6) (a). 13‘Territory’ has been defined to mean ‘a Region or the Federal Territory’ of Lagos by section 165(1) of the 1963 Constitution of the Federation of Nigeria. 14(n4) 15The Constitution of the Federal Republic of Nigeria, 1979, s 236(1); Adisa v. Oyinwola (2000) F.W.L.R. (pt. 8) 1349 at 1376; in Savannah Bank v. Pan Atlantic (1987) 1 N.W.L.R. (pt. 49) 212. 16Labiyiv. Anretiola (1992) 10 S.C.N.J. 1 at 17; (1992) N.W.L.R. (pt. 258) 139. 17 (n15) s.245 18 (n15)s 240. 19 (n15) s236(2). 20(n15) s240 – 244 (for the Sharia court of Appeal) and 245 – 249 (for the Customary Court of Appeal). 21 (n15) s242(1) for the Sharia Courts of Appeal of states of the federation. 22 (n15) s247(1) for the Customary Courts of Appeal of States. 23(n15) ss 242 and 247. Page | 121 AJLHR 3 (2) 2019 constitution24.Furthermore, by the various high court laws of states, a state high court could apply customary law25, provided they are not inconsistent with any written law ‘for the time being in force’ or ‘repugnant to natural justice, equity and good conscience’26. Such was the position under the 1979 constitution that makes it safe to conclude that high courts of states on the one hand, and each of the sharia courts of appeal and customary courts of appeal of states27 on the other were courts of co-ordinate jurisdiction28. 3. Some Misconceptions about Coordinate/Concurrent Jurisdiction The definition of coordinate/concurrent jurisdiction above makes the status of the courts involved irrelevant for its existence. For instance, the constitution confers the status of ‘superior courts of record’ on all the courts established by it29. There are, however, three levels of the courts that are so established. Those from where appeals lie to the Court of Appeal30; the one from where appeals lie to the Supreme Court31 and the Supreme. None of the first category can claim superiority over another as was maintained in Chieshe v. C.C.A., Benue State32. Sometimes the nature of the jurisdiction of a court of record may suggest wrongly that it has no concurrent jurisdiction with another; such was the error in the decision of the court in Chieshe v. C.C.A., Benue State33. In another misconception, it was held in Commissioner of Police v. Constantine Offiong34 that for the purpose of bail pending appeal, the high court and the trial inferior court have concurrent jurisdiction but that an application of that nature should be made to the trial/inferior court first except there are exceptional circumstances. The reason for this appears to have been advanced by Doherty as ‘the normal convention and practice.’35 This is a clear negation of the principle of concurrency of jurisdiction conveyed by the definition above36. Suffice to say that if the option exercised by a litigant is to go to a higher court for a remedy that is perfectly within the purview of the jurisdiction of that court, he should go for that remedy 24 (n15) s236(1) and (2). See also Savannah Bank v. Pan Atlantic (supra). Also (n18) s1 made the Constitution supreme. Note also that states’ courts included courts of the Federal Capital Territory, Abuja. 24 Cited by Oluwatoyin Doherty, Criminal Procedure in Nigeria, Law and Practice (London: Blackstone Press Ltd., 1990)p.133, Alubo A. Okoh, Criminal Procedure Law in Nigeria( Jos: Innovation Communications, 2012)p. 197, Shani Baba, Notes on Some Aspects of Criminal Procedure in Northern Nigeria (Zaria: Ahmadu Bello University Press Ltd., 1988) 93 and Odo C. Obinna, Trial Procedure in Magistrates’ Courts Under the Criminal Procedure Code (Abuja: Siddwell International Ltd., 2013) p. 319. With respect to these learned jurists, the citation (1967) N.M.L.R. 341 provided by them for this case is not correct. A search for the possible existence of the case in that entire law report yielded no positive result. I believe there is a mix-up somewhere. 25 High Law of Kaduna State, Cap. 67, 1991, s2. (Other states’ laws have the same provisions). 26 (n25) 234; see alsoEshugbayiEleko v. Officer Administering the Government of Nigeria (1931) A.C. 662 at 673, Laoye v. Oyetunde (1944) A.C. 170, Edet v. Essien (1932) 11 N.L.R. 47 and Maryama v. SadikuEjo (1961) N.R.N.L.R. 81. 27Note that this submission applies to the Sharia Court of Appeal and the Customary Court of Appeal of the Federal Capital Territory of the one hand and the High Courts of the Federal Capital Territory, Abuja on the other. 28 Note that the high court had a concurrent jurisdiction with each of the other two but none of the other two had concurrent jurisdiction with another. 29 (n20) s6(3). 30States High Courts, Customary Court of Appeal, Sharia Court of Appeal, Federal High Court and the National Industrial Court. 31The Court of Appeal. 32 (2000) 7 N.C.L.R. 171 187 paragraph E-G. perTur J. 33 (Supra) 34 Cited by Oluwatoyin Doherty (n24), Alubo A. Okoh (n24), Shani Baba (n24) 93 and Odo C. Obinna (n24)p. 319. With respect to these learned jurists, the citation (1967) N.M.L.R. 341 provided by them for this case is not correct. A search for the possible existence of the case in that entire law report yielded no positive result. I believe there is a mix-up somewhere. 35 (n24). 36Bryan A. Garner, Tiger Jackson and Jeff Newman (n2). Page | 122 SULEIMAN: The ‘Concurrency’/ ‘Coordinacy’ of the Jurisdiction of States’ High Courts, Customary and Sharia Courts of Appeal: Constitutional Matters Arising notwithstanding that a lower court would have competently dealt with the matter. It may be advisable to go to the lower court first in the interest of costs both in terms of finances and time but certainly not in fulfilment of any legal norm. 4. The Consequences of Concurrent Jurisdiction of Courts When two or more courts have coordinate jurisdiction, the first consequence is that a litigant is at liberty to take his matter to any one of them. Similarly, if the concurrency of jurisdiction is between a higher court and an inferior court, the latter is a valid option for filing a matter with the former reserving the jurisdiction to hear an appeal from such a decision if appeals lie to it constitutionally from that court. Lawyers in practical terms prefer the higher courts because of superiority in competence to handle matters. Another consequence is that when a decision of a court is a nullity, another court of coordinate jurisdiction can set it aside for that reason. This is not an appellate jurisdiction at the disposal of a court of coordinate jurisdiction37 neither is it a power of judicial review strictosensu. The only ground of interference by a court of coordinate jurisdiction is that a person affected by such a judgment has applied that it be set aside on the ground of nullity38, the merit of such a decision is out of the consideration of such a court of coordinate jurisdiction. In Okoye v. Nigeria Construction Company39, the Supreme Court held that a null judgment of court can be set aside by that court or another court of coordinate jurisdiction40. The prerequisite of the exercise of the power by a court to set aside a void judgment is Concurrency of jurisdiction with the court that delivered it. By the decisions it would not matter if the courts are not the same description, for instance, as between a high court and a customary court of appeal41.A problem may arise, where a higher court has concurrent jurisdiction with an inferior court over a matter42, it is easier to understand if the higher court sets aside the decision of the inferior court for being a nullity43; but can it be right the other way round? Technically speaking, the answer to this question is in the affirmative. Objections to this, if any, cannot be founded on any better grounds than the status of the two courts i.e. one being a ‘superior court’ and the other an ‘inferior court’; the latter will not appear to be respectful to the former if it sets aside its decision. 5. Coordinate/Concurrent Jurisdiction of the High Court of State, Customary Court of Appeal and the Sharia Court of Appeal under the 1999 Constitution Oshisanya44 noted that the removal of the word ‘unlimited’ that characterised section 236 (1) of the 1979 Constitution from section 272 (1) of the 1999 Constitution both of the Federal Republic of Nigeria suggest a ‘limitation’ on the jurisdiction of the states’ high courts. Stating 37Nwafor v. Bulama (1987) 1 Q.L.R.N. 269 at 270 38Dr.Adewumi v. Lagos State DPC (2013) All F.W.L.R. (pt. 701) 1508,1509. In Galadima v. Tambai (2000) F.W.L.R. (pt. 14) 2369 at 2385, Achike J.S.C. held irregular procedure not to be a barrier to objection to jurisdiction. 39(1991) 2 N.S.C.C. (pt. 2) 422 at 441. 40Skenconsult (Nig.) Ltd. v. Ukey (1981) 12 N.S.C.C. 1 at 16-18 41 For instance, when the decision of a customary court is a nullity for want of jurisdiction or is a violation of the rules of fair hearing, the high court of justice in Kaduna State can review the decision of such a customary court by certiorari pursuant to 272(2) of the 1999 Constitution of the Federal Republic of Nigeria, Order 37 of the High Court (Civil Procedure) Rules of Kaduna State, 2007 and (n25) s24. In a similar situation, the Customary Court of Appeal, Kaduna State can exercise this power of the High Court pursuant to section 52(1) of the Customary Court of Appeal Law No. 14, 2001, Kaduna State. 42Bankole v. Dada (2003) 5 W.R.N. 40 where the Court of Appeal held that the High Court of a State has concurrent jurisdiction with a Customary Court over land in a rural area under the Land Use Act, Cap. L 15, Laws of the Federation of Nigeria, 2010, s41. 43For instance, when the customary court was not properly constituted. 44O. Oshisanya, An Almanac of Contemporary Judiciary Restatements with Commentaries Vol. 1 (Ibadan: Spectrum Books Ltd., 2011) p. 87. Page | 123 AJLHR 3 (2) 2019 the obvious under the 1999 constitution regime in Iyanda v. Laniba II45, the Supreme Court held that in the absence of a ‘limitation’, a state high court has ‘unlimited’ jurisdiction under section 272(1) of the constitution. In other words, except exclusive jurisdiction over some matters is conferred on a court by the constitution, a state high court will have concurrent jurisdiction with it. Any non-constitutional provision that purports to confer jurisdiction to the exclusion of the high court of a state shall be ultra vires the constitution46 .It is in the face of want of ‘exclusivity’ provided by the constitution of Nigeria, 1999 on the jurisdiction of the sharia court of appeal and customary court of appeal established by it that this paper seeks to find out if state high courts on the one hand maintain concurrent jurisdiction with the sharia courts of appeal and customary courts of appeal of states on the other.It is beyond dispute that section 271(1) of the 1999 Constitution which provides for states’ high court jurisdiction to section 251 of the Constitution and the entire provisions of the constitution. The strong, unambiguous double assurance provisions of section 251 put it beyond dispute that the Federal High Court enjoys jurisdiction to the exclusion of all other Courts on the items listed in that section. The previous constitutions considered have never failed in making clear provisions to exclude other courts when a subject matter is intended to be adjudicated upon by a particular court to the exclusion of others. In a remarkable departure from the restrictive provisions of its section 251, the constitution did not explicitly or even by implication conferred exclusive jurisdiction on the sharia courts of appeal47. The pertinent question to ask is, can a state high court, in its appellate jurisdiction, hear matters listed in section 277(1) and (2) as the Sharia Court of Appeal would? This question is answered in the affirmative. We have seen that section 2 of the High Court Law of Kaduna State provides that ‘customary law’ ‘includes Islamic law’ and that the high court shall ‘observe and enforce the observance’ of customary law48. The Constitution confers on high courts of states appellate and supervisory jurisdiction in ‘civil and criminal’ matters49. Customary/Islamic matters are civil and perfectly within the purview of the appellate and supervisory jurisdiction of a state high court. In concurrency, apart from exercising appellate jurisdiction, the high court and the Sharia Court of Appeal of a state can review decisions of the sharia courts50.From the nature of the provisions for the jurisdiction of the sharia court of appeal, there are instances that an aggrieved person from an area court or sharia court cannot appeal to the sharia court of appeal51. He cannot, however, be without a remedy by way of Appeal. In Gagiro v. Gagiro52, an appeal against the decision of an upper area court in a land dispute was held to be outside the ambit of the jurisdiction of the Sharia Court of Appeal (not being a matter involving Islamic ‘personal law’ but of ‘Islamic general law’)53. Certainly, the appellant was not without a forum to seek for redress if the Sharia Court of Appeal could not entertain his case. The opportunity to resolve the concurrency of the jurisdiction of the High Court of a state and the Customary Court of Appeal of a state in general Muslim law which is excluded from the jurisdiction of a sharia court of appeal came up in Usman v. Umaru54. This is an ‘Islamic law’ case that went on appeal to the Sharia Court of Appeal and later the Court of 45(2003) F.W.L.R. (pt. 138) 1267 at 1290. 46 The Constitution of the Federal Republic of Nigeria, 1999, ss1 and 272(1). 47 (n46) s277(1) and (2). 48(n25) s34. Note that other states have similar provisions in the high court laws. 49(n46), s272 (2). 50(n46) ss272(2) and 277(2) confer the jurisdiction of judicial review on the high court and the sharia court of appeal respectively; (n25) s24. 51Gagiro v. Gagiro (supra), Usman v. Umaru (supra). 52(1986) 2 Q.L.R.N. 239. 53The court of Appeal relied on an earlier decision inUmaruFunnami V. BukarSarki CA/J/16M/84 Appeal No. CA/J/25/85. 54(1992) 2 N.S.C.C. (pt. 2) 637 at 646. Page | 124 SULEIMAN: The ‘Concurrency’/ ‘Coordinacy’ of the Jurisdiction of States’ High Courts, Customary and Sharia Courts of Appeal: Constitutional Matters Arising Appeal. It was the verdict of the Court of Appeal that the Sharia Court of Appeal had no jurisdiction to hear the matter because it was not an issue on ‘Islamic personal law’ but on ‘Islamic general law’55 thus the matter was referred to the High Court which declined jurisdiction and the Court of Appeal later sent the case to the Customary Court of Appeal, Plateau State. The Supreme Court came to the conclusion that sections 242 and 247 of the constitution56 curtailed the jurisdiction of the High Court of Plateau State that is unlimited by virtue of section 236(1) of the 1979 Constitution. Considering the definition of ‘customary law’ in section 10(2) of the Customary Court of Appeal Law of the state, 1979 to exclude ‘Islamic Personal Law’57, the apex court rightly came to the conclusion that the High Court and Customary Court of Appeal of Plateau State have concurrent jurisdiction over an issue of general Islamic law (not ‘Islamic Personal Law’)58.The view held by the Court that matters of ‘Islamic personal law’ are within the jurisdiction of the Sharia Court of Appeal of Plateau State to the exclusion of the High Court and Customary Court of Appeal needs further examination. Without mincing words, the definition of ‘customary law’ by the Customary Court of Appeal Law of Plateau State59 above sustains this position of the Supreme Court in relation to the Customary Court of Appeal. On the other hand, in relation to the High Court, the Court held the view that when the decision of the Upper Area Courts is on: issues of general law, it goes to the high Court. But if it raises questions of ‘Islamic personal law’, it goes to the Sharia Court of Appeal. And if it raises question involving customary law, the appeal goes to the Customary Court of Appeal...I can hardly, however, visualise a case where any two of these three courts will have concurrent jurisdiction to entertain an appeal.60 (Emphasis supplied). To justify the exclusion of the High Court of Plateau State in particular from entertaining Islamic and/or customary matters, his Lordship Ogundare J.S.C. maintained that: ‘The unlimited jurisdiction conferred by the [1979] Constitution on the High Court is curtailed by sections 242 and 247 conferring jurisdictions on the other two courts in respect of their areas of specialty.’61 One setback of the reasoning of Ogundare J.S.C. is found in the 1979 Constitution itself. The jurisdictions of the Supreme Court62, the defunct Federal Court of Appeal63 were explicitly said to be ‘exclusive’. If the legislature in these latter provisions64 had no change of mind, there is no valid reason for the failure to confer on the ‘Sharia Court of Appeal’ and the ‘Customary Court of Appeal’ ‘exclusive’ jurisdiction in their ‘areas of specialty’. Furthermore, there is no ‘specialty’ explanation that can limit the grammatical meaning of ‘unlimited’ as used in section 236(1) of the 1979 Constitution or the plain definition of ‘customary law’ in section 10(2) of the Customary Court of Appeal Law of Plateau State above considered and which conferred on the High Court concurrent jurisdiction with the Customary Court of Appeal on Islamic law on general matters65. It was needless of his Lordship to go far looking for the interpretation of 55The 1979 Constitution of the Federal Republic of Nigeria, s 242(1) and (2). 56 (n55). 57 ‘customary law’ is defined by section 2 of the High Court Law of Plateau State to include ‘Islamic law’. 58Usman v. Umaru (supra) at 657 per Uwais J.S.C. (as then was). 59 Customary Court of Appeal Law, Plateau State, 1979, s10(2). 60Usman v. Umaru (supra) at 646 per Ogundare J.S.C. 61 Ibid. 62(n15) ss 212 (1) and 213 (1). 63(n15) s219. 64(n15) ss242 and 247. 65Usman v. Umaru (supra). Page | 125 AJLHR 3 (2) 2019 plain grammatical words in the 1979 Constitution66 and the Customary Court of Appeal Law of Plateau State among others to justify his position67. There would be an apparent deadlock when the area court law and/or sharia court law does not provide for appeals to the high court68; or make provisions for exclusive jurisdiction of the customary court of appeal and sharia courts of appeal in matters of appeals from the sharia and customary courts69. Appeals can still lie to a state high court in such situations with legal justification found in the Constitution70. This provision confers on a high court ‘appellate’ and ‘supervisory’ jurisdictions which no state law can deny. For situations that a sharia court of appeal would lack jurisdiction to entertain an appeal from a sharia/area court71, the high court and the sharia court of appeal are not courts of coordinate jurisdiction72. 6. Concurrency of Jurisdiction in Hearing Appeals A community reading of the provisions of sections 272(1) and (2), 277(1) and (2) of the Constitution73 reveals that the high Court of a state has coordinate jurisdiction with the Sharia court of Appeal for the purpose of hearing appeals from area/sharia courts. When the law establishing the sharia/area courts provides for appeals to only the Sharia Court of Appeal, nothing makes it illegal for an appeal to be lodged against their decisions to a state high court. It has been noted that in the absence of any ‘limitation’, the jurisdiction of a high court of state remains ‘unlimited’ under the 1999 Constitution74. For instance, the ‘limitation’ that subjects section 272 that provides for the jurisdiction of a high court to section 25175. The ‘limitation’ must come from the constitution itself and not any law of the state or the federation which must bow to the supremacy of the constitution76.The lack of such a provision for appeals from area/sharia courts to the high court cannot erode the constitutional appellate jurisdiction vested on high courts of states77. Even if the customary court law provides that appeals shall lie from decisions of a customary/sharia court to the customary/sharia court of appeal to the exclusion of other courts, such a provision shall be ultra vires section 272 (2) of the 1999 Constitution78.Bankole v. Dada79 stands supported by the ‘unlimited jurisdiction’ status of a state high court during the 1979 Constitution regime. With the omission of ‘unlimited’ by section 272 (1) of the 1999 Constitution and especially that this section subjects the provision for the jurisdiction of states’ high courts to section 251 in particular and the entire constitution 66 (n25) s236(1), 242 and 247 for the ‘unlimited jurisdiction’ of the High Court, limited jurisdictions of the Sharia Court of Appeal and Customary Court of Appeal respectively. 67 In Ehuwa v. I.N.E.C. (2006) 28 NSCQR 545 at 585,it was held that when the words of a statute are clear, they should be given their ordinary lexical meanings. 68 Customary Courts Law No. 9, 2001 of Kaduna State, s53(1) Sharia Court Law No. 10, Laws of Kaduna State, 2001’ s51. 69 Even if such laws will purportedly confer exclusive jurisdiction on sharia and customary courts of appeal, such provisions shall not be intra vires sections 272(2) and 277(2) of the 1999 Constitution and by extension includes 262 and 267 of the 1999 Constitution of the Federal Republic of Nigeria for the Sharia Court of Appeal and customary Court of Appeal, Abuja respectively. 70 (n46) s272(2). 71Gagiro v. Gagiro (supra). 72 See Bryan A. Garner, Tiger Jackson and Jeff Newman(n2). 73 (n46). 74Iyanda v. Laniba II (supra). 75 (n46). 76 (n48)s1(1). 77This goes without saying that the appeals will lie from the decisions of customary courts, area courts, sharia courts, magistrate/district courts. 78Bankole v. Dada (2003) 5 W.R.N. 40 79 (supra) Page | 126 SULEIMAN: The ‘Concurrency’/ ‘Coordinacy’ of the Jurisdiction of States’ High Courts, Customary and Sharia Courts of Appeal: Constitutional Matters Arising in general, will the 1999 Constitution regime position not differ from that of 1979?80 The double assurance measure of the exclusivity of the jurisdiction of the Federal High Court under section 251 of the Constitution of Nigeria 1999 hereby needs a comment. This double assurance is a direct lesson from our constitutional history81; it can also not be divorced from the need for legislative clarity especially on a fundamental issue such as the ‘jurisdiction’ of courts. By no means does the phrase ‘subject to section 251 and the provisions of this constitution’ in section 272 of the 1999 Constitution limit the jurisdiction of states’ high courts in relation to the jurisdiction of states’ customary and sharia courts of appeal without the provisions for their jurisdiction made ‘exclusive’ like section 251 and 254 C (i) that provide for the jurisdiction of the Federal High Court and National Industrial Court respectively. The reasons for the position taken here are discussed below. Firstly, the jurisdiction of high courts of states includes jurisdiction on issues of customary/sharia law82. Section 272 (2) explicitly provides that the jurisdiction of states’ high courts include the exercise of its ‘supervisory’ and ‘appellate’ jurisdictions. Juxtaposing section 272(2) of the 1999 Constitution with the constitutional provisions for customary court of appeal83 and sharia court of appeal84, there is no limit to the jurisdiction of a state high court on the one hand in relation to the jurisdiction of these courts on the other. It is contended that concurrency in the jurisdiction of states’ high courts on the one hand, the customary court of appeal and the sharia court of appeal on the other was intended by the legislature85. Secondly, the mention of section 25186, specifically by section 272 (1) and no other section in particular, makes it all the more probable that except exclusive jurisdiction is conferred on any particular court created before section 272 of the constitution, its jurisdiction is meant to be concurrent with that of a state high court87.The Court of Appeal in the case of Bankole v. Dada88 on the exclusive jurisdiction of a state high court on urban land under section 39 of the Land Use Act89visa vis the jurisdiction of Customary Courts over rural lands under section 41 of the Land Use Act, held that the fact that the lawmaker made the jurisdiction of high courts of states ‘exclusive’ on urban lands but did not those of customary courts ‘exclusive’ only showed that the high court had a concurrent jurisdiction with customary/area courts on rural lands. Similarly, the non mention of the jurisdiction of the sharia and customary courts of appeal to have ‘exclusive’ jurisdiction as in other provisions for the Supreme Court, Court of Appeal, Federal High Court and Industrial Court only showed that their jurisdiction was not intended to be ‘exclusive’90. Thirdly, in legislative business, if a lawmaker starts with a pattern of legislative thought91 and deviates from it later in the proceedings, it is safer to take the lawmaker as having had a change of mind.92 This is the reason that it is safer to take the lawmaker as having intended not to confer exclusive jurisdiction on sharia and customary courts 80 (n15 )s236(1). 81There are decisions of courts on the conflicting jurisdictions of the Federal High Court and High courts of states in the 1979 constitution regime. There was need to put that historical conflict situation under check. 82(n25) s34. 83 (n46) s282(2). 84 (n46) s277(1). 85 It is the concurrency of a state high in relation to each of the other courts. 86 (n46) 87Iyanda v. Laniba II (supra). 88 (supra). 89 Cap. L 15, Laws of the Federation of Nigeria, 2010. 90Gen. Buhari v. Alh.Diko Yusuf (2003) 14 N.S.C.Q.R. 1114 at 1136. 91 For instance, the conferment of exclusive jurisdiction on the Supreme Court, Court of Appeal and the Federal High Court under sections of the 1999 Constitution above considered. 92 If the lawmaker had intended exclusive jurisdiction for the Sharia and Customary Courts of Appeal of states and the Federal Capital Territory Abuja, nothing stopped the lawmaker from continuing with the exclusive provisions it started for the federal courts. Page | 127 AJLHR 3 (2) 2019 of appeal93 for the Federal Capital Territory and states of the federation.94 Nothing stopped the lawmaker from following the pattern adopted for the federal courts if he had meant the same for sharia and customary courts of appeal. Fourthly, the high court of a state has concurrent jurisdiction with a state customary court of appeal in all matters on appeal from customary/area courts on customary law on the one hand, and with the sharia court of appeal on matters on ‘Islamic personal law’ which is defined by the high court law of states as customary law95 on the other. This submission finds support in the decision of the court that without ‘limitation’ a state high court’s jurisdiction under the 1999 Constitution is ‘unlimited’96. 7. Concurrency of Jurisdiction in Matters of Judicial Review States’ high courts and sharia court of appeal have concurrent Jurisdiction in reviewing the decisions of area courts/sharia courts. The jurisdiction to review decisions of lower courts is provided for by sections 272 (1) and 277(1) of the 1999 Constitution for the high court and sharia court of appeal respectively. This is one instance that confers on the sharia court of appeal the jurisdiction to have a matter before it not on appeal97. Apart from the Constitutional provision98, the Customary Court of Appeal Law of Kaduna State provides for the non-appellate jurisdiction of the court to review decisions of customary courts99.For the purpose of judicial review, especially on grounds of violation of the rule(s) of natural justice or lack of jurisdiction, a state high court on the one hand, by its constitutional jurisdiction100, has concurrent jurisdiction with a sharia court of appeal on matters of ‘Islamic personal law’101 and also has concurrent jurisdiction on ‘customary law’ matters with a customary court of appeal102. The ‘unlimited’ jurisdiction of a high court of a state103 makes it possible for it to exercise the power to review the decision of lower courts concurrently with the sharia court of appeal on the one hand and the customary court of appeal on the other. Whether concurrency of jurisdiction in the terms of hearing appeals or in the review of lower courts’ decisions, the high court, sharia court of appeal and the customary court of appeal cannot all have concurrent jurisdiction for the reason that the sharia court of appeal is constitutionally confined to issues of ‘Islamic personal law’ which the customary court of appeal cannot entertain with provisions such as section 10(2) of Customary Court of Appeal Law of Plateau State that defines customary law to exclude ‘Islamic personal law’ as considered above. Section 34 of the High Court Law of Kaduna State104 provides that a high court shall observe and enforce the observance of customary law. With the definition of customary law by the high court laws of states105 and its ‘unlimited 93Note that all arguments on the concurrency of jurisdiction of high courts of states, sharia and customary courts of appeal of states equally apply to the Federal Capital Territory, Abuja. 94 See sections 262(1), 266(1), 277(1) and 281(2) for the Sharia Court of Appeal, Federal Capital Territory Abuja, Customary Court of Appeal, Federal Capital Territory Abuja, Sharia Court of Appeal of States of Nigeria and the Customary Court of Appeal of states of Nigeria. 95 (n25) s2 is an instance that typifies provisions in northern states of Nigeria. 96Iyanda v. Laniba II (supra). 97 Note that judicial review is a supervisory power of courts of record and not an appeal. It is in law an alternative to an appeal. See A.C.B. v. Nwaigwe (2011) N.S.C.Q.R. (pt. 2) 1230, and Imuolu Village Group Court, Ex Parte Macaulay 20 N.L.R. 111 at 113. 98(n46) s 282(1). 99Customary Court of Appeal Law of Kaduna State, Laws of Kaduna State, 2001, s52(1). 100(n46)s272(1). 101Iyanda v. Laniba II (supra). 102Ibid and (n25) s34. 103Iyanda v. Laniba II (supra). 104 (n25); this provision is found in most (if not all) of the States’ High Courts in Nigeria, especially those of the Northern States. 105(n25) s2. Page | 128 SULEIMAN: The ‘Concurrency’/ ‘Coordinacy’ of the Jurisdiction of States’ High Courts, Customary and Sharia Courts of Appeal: Constitutional Matters Arising jurisdiction’ above seen, a high court shares from each of the two other courts’ jurisdiction whether on appeal or in their review jurisdiction. This is the concurrency in the jurisdiction of the high court with each of the other two courts. 8. Conclusion and Recommendations To a large extent, the interplay of politics and religion have been responsible for keeping the state high court and the sharia court of appeal apart when it comes to the exercise of jurisdiction. With a legal frame work considered above, one would expect to find Islamic law matters in a state high court on appeal or as matters of first instance; but litigants would prefer to take their leanings along religious lines. A Muslim litigant whose matter cannot be heard by a sharia court of appeal106 may consider going to a customary court of appeal a ‘taboo’ but may manage going to the high court because it is a court that harbours litigants of different religions on several matters. It may not amount going to the ‘extremity’ of going to a court that is ‘known’ to hear customary and non Islamic matters. The little considerations above add to the existing gap that between Muslims and non Muslims in Nigeria thereby putting the unity of citizens of diverse religions in peril. The topic of concurrent jurisdiction should be taught in our law faculties and the Law School in view of its importance to the unity of citizens. Students should be encouraged to take their clients’ matters to courts without unnecessary leanings to religion. The employment and deployment of judges to the customary courts of appeal and sharia courts of appeal should not have rigid adherence to religion. This would foster unity in diversity among citizens. 106 See Usman v. Umaru (supra) and Gagiro v. Gagiro(supra). Page | 129 AJLHR 3 (2) 2019 IS THAT THE MAN? IMPERATIVES FOR IDENTIFICATION PARADE IN NIGERIA Abstract The issue of identification of a suspect is one that has taken a front burner in our criminal justice system. This is so because the basis of a criminal trial is the punishment of a defendant on behalf of the state. To now end up punishing an innocent person because he was wrongly identified as the defendant will automatically defeat the beautiful essence of our criminal justice system. This work therefore looks at the issue of identification paying particular emphasis on identification parade. The work analyses identification and its pride of place in our criminal justice system. It defines concept and considers the necessity of identification parade and its procedure while ending with the consequences of a doubtful identification of a suspect. It concluded by raising questions about this method of identification and calls for more reliable means of identification of suspects in Nigeria. Keywords: Identification, Identification Parade, Finger Prints, DNA, Handwriting 1. Introduction Most times, a conviction on a criminal matter may be set aside because the convict was not adequately identified. It is a rule of the thumb in a criminal matter that for a defendant to be convicted of a crime there must be evidence tying that particular defendant to the commission of the crime. It is settled law that identification evidence is the evidence tending to show that the person charged with an offence is the same person who was seen committing the offence1. Where all other elements of the crime are complete but the identity of the suspect is shrouded in confusion, such defendant cannot be convicted. The reason for identification is so that the wrong/innocent person does not end up convicted for an offence he did not commit in a case of mistaken identity. There are several methods of identifying a culprit but we shall in the course of this work devote much ink to identification using parade as obtainable in Nigeria. 2. Methods of identification There are several methods of identification of a suspect under the law. When Nwadialo wrote the text on Evidence Law2, he restricted himself to visual identification of a suspect only. It is submitted that the society being a dynamic one, the changes advanced by technology have also affected the number of methods of identification. Hence Anyogu3 opines that the methods of identification now includes identification based on handwriting, finger impression and some other forms of scientific investigations like DNA etc. Fingerprints Britannica reports that fingerprint was discovered in the 19th century, when scientists found out that almost any contact between a finger and a fixed surface left a latent mark that could be made visible by a variety of procedures.4 It further reported that a group established by the Home Secretary to B.E. EWULUM PhD, Lecturer, Department of Public and Private Law, Faculty of Law, Nnamdi Azikiwe University, Awka. E mail: [email protected]. 07038137153 1See Bassey Akpan Archibong v. The State (2006) 14 NWLR (Pt.1000) 349 2F. Nwadialo (1999) Modern Nigerian Law of Evidence, University of Lagos Press (2nd Ed) at 224 3Z. C. Anyogu (2005), Evidential Perspectives on The Defence of Alibi in Nigeria, Enugu, Okechukwu Communications Pg 71 4https://www.britannica.com/topic/crime-law/Detection-of-crime accessed on 22/5/2019 by 2.16pm Page | 130 EWULUM: Is that the Man? Imperatives for Identification Parade in Nigeria determine the best means of personal identification, accepted that no two individuals had the same fingerprints subsequently in 1900 another committee recommended the use of fingerprints for criminal identification.5 Consequent upon this, fingerprinting became a widely accepted means of identification of culprits. To make use of these fingerprints, it presupposes that there should first be a fingerprint database where a set of finger print obtained at a scene of crime can be matched in order to identify a perpetrator of a crime. In Queen v Akpan6, evidence of fingerprints with sixteen similarities was given and admitted by the Court in convicting the Defendant and the Federal Supreme Court upheld the conviction on appeal. While fingerprint has been lauded as a good method of identification, there have been concerns about it not being error free7. While other countries are making efforts to move away from the use of fingerprints for purposes of identification of suspects, the situation in Nigeria is worse as there is a great lack of the necessary infrastructure for fingerprint matching. Handwriting This is another means of identification of a suspect. The Evidence Act contains provisions on handwriting. Indeed Section 688 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 identity of handwriting or finger impressions the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions are admissible.’(Emphasis mine) This provision presupposes that the handwriting can be identified by an expert. It is however correct to say too that such handwritings can also be identified by persons who are acquainted with the writing as established by Section 72(1)9 which provides as follows: 72(1) When the court has to form an opinion as to the person by whom a document was written or signed the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is admissible (2)A person is said to be acquainted with the hand writing of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself for under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. Nwadialo submits that the Nigeria Police has a corps of handwriting analysts who are trained specialists in identification of handwriting and allied studies.10 5https://www.britannica.com/topic/crime-law/Detection-of-crime accessed same date 6 1961 1 All NLR 3 7 In 2004 the FBI used a fingerprint to link Brandon Mayfield, an American attorney, to a train bombing in Madrid; however, he was vindicated after a review revealed that the fingerprint, used to obtain a warrant for his arrest, did not belong to him. See https://www.britannica.com/topic/crime-law/Detection-of-crime accessed on 22/5/2019 by 2.16pm 8 Evidence Act 2011 9 Evidence Act 2011 10Nwadialo, Ibid Pg 214 Page | 131 AJLHR 3 (2) 2019 DNA Fingerprinting The Oxford online Dictionaries defined DNA as ‘Deoxyribonucleic acid, a self-replicating material which is present in nearly all living organisms as the main constituent of chromosomes. It is the carrier of genetic information’11. The National Cancer Institute of the United States defined it as, ‘the molecular basis of heredity; encodes the genetic information responsible for the development and function of an organism and allows for transmission of that genetic information from one generation to the next. The DNA molecule is structured as a double-stranded helix held together by weak hydrogen bonds between purine-pyrimidine nucleotide base pairs: adenine (A) paired with thymine (T), and guanine (G) paired with cytosine (C), also called deoxyribonucleic acid’12. Lutz Roewer13 describes DNA as forensic fingerprinting. He defined it as Forensic genetic fingerprinting as the comparison of the DNA in a person’s nucleated cells with that identified in biological matter found at the scene of a crime or with the DNA of another person for the purpose of identification or exclusion. The application of these techniques introduces new factual evidence to criminal investigations and court cases. According to Roewer, The forensic implications of genetic fingerprinting were nevertheless obvious, and improvements of the laboratory process led already in 1987 to the very first application in a forensic case. Two teenage girls had been raped and murdered on different occasions in nearby English villages, one in 1983, and the other in 1986. Semen was obtained from each of the two crime scenes. The case was spectacular because it surprisingly excluded a suspected man, Richard Buckland, and matched another man, Colin Pitchfork, who attempted to evade the DNA dragnet by persuading a friend to give a sample on his behalf. Pitchfork confessed to committing the crimes after he was confronted with the evidence that his DNA profile matched the trace DNA from the two crime scenes. For 2 years the Lister Institute of Leicester where Jeffreys was employed was the only laboratory in the world doing this work. But it was around 1987 when companies such as Cellmark, the academic medico-legal institutions around the world, the national police, law enforcement agencies, and so on started to evaluate, improve upon, and employ the new tool14. Weedn et al submitted that DNA is useful in testing for the following reasons: it is the same throughout the body (except in eggs and sperm, which contain only a half complement); it is the same throughout life (except for the rare mutation, which represents such a small percent-age of the overall DNA that routine DNA testing will not show it); it is present in all cells (except mature red blood cells) and it differs from individual to individual (except for identical twins).15 11 https://en.oxforddictionaries.com/definition/dna 12 www.cancer.gov/publications/dictionaries/genetics-dictionary/def/dna 13L. Roewer (2013). DNA fingerprinting in forensics: past, present, future. Investigative Genetics, 4(1), 22. doi:10.1186/2041-2223-4-22 available online at www.ncbi.nlm.nih.gov/pmc/articles/PMC3831584/ 14Roewer(2013). DNA fingerprinting in forensics: past, present, future. Investigative genetics, 4(1), 22. doi:10.1186/2041- 2223-4-22 available online at www.ncbi.nlm.nih.gov/pmc/articles/PMC3831584 15Weedn, Victor Walter, Rogers Sue and Henry E. Berch, ‘DNA Testing in the Forensic Laboratory’ Laboratory Medicine Vol 29, No 8 August 1998 available online at https://watermark.silverchair.com/labmed29-0484.pd Page | 132 EWULUM: Is that the Man? Imperatives for Identification Parade in Nigeria DNA fingerprinting therefore is another method of identifying a culprit in an offence. However the applicability of DNA testing in Nigeria is a question for another discourse. 3. Identification Parade What really is identification parade? ‘Generally, identification parade, otherwise known as ‘line-up’ is a police identification procedure in which a criminal suspect and other physically similar person are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime’16.In State v Aibangbee17, it was defined to mean the whole series of facts and circumstances for which a witness or witnesses associate a defendant with the commission of the offence charged. It may consist of or include evidence in form of finger prints, hand prints, handwriting, palm prints, voice identification parade, photographs or the recollection of the features of the culprit by a witness who saw him in the act of commission which is called in question or a combination of two or more of these’. As earlier stated, identification parade is not the only way to identify a suspect. Indeed in Eyisi v State18, Ogundare JSC stated that identification parade is only one way of establishing the identification of an accused person in relation to the offence charged. It is a misconception of the law to say that it is the only way’ When is identification parade required? The Courts in a plethora of decisions have stated that, ‘It is settled law that identification evidence is the evidence tending to show that the person charged with an offence is the same person who was seen committing the offence’19. It is further submitted that an identification parade can be useful where a witness claims to have seen an unfamiliar person who escaped from the scene of crime in circumstances requiring putting to test the witness powers of recognition based on the physical features and or other peculiarities of the person the witness claims to have seen. It is apt to add too that there must be serious doubts as to who the witness claims to have seen to warrant an identification parade.20. In a simpler way, identification parade becomes necessary where the identity of the suspect is in issue. It should be borne in mind that this identification parade is not the same as parade of suspects mostly used by our security agencies to shame the suspected perpetrators of crime. On that, it is submitted that such parade is an abuse of the rights of the suspect under the laws of the land. An identification parade on the other hand presupposes a viable doubt as to the identity of the suspect. In R v Turnbull21, it was stated that, It is trite law that an identification parade is not a sine qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime, if there is yet other piece of evidence leading conclusively to the identity of the perpetrator of the offence. An identification parade only becomes necessary where the victim of the crime did not know the accused before his acquaintance with him during the commission of the offence. It is also settled law that an identification parade is very essential and useful whenever there is doubt as to the ability of a 16 See Agboola v. State (2013) All FWLR (Pt. 704) 139 17 1988 3NWLR Pt 84 at 548 pp 590 18 2002 15 NWLR Pt 691 at 555 19 See BasseyAkpanArchibong V. The State (2006) 14 NWLR (Pt.1000) 349; MaikudiAliyu v State (2007) ALL FWLR (Pt.399) 1123, Amonshima V State (2009) 32 WRN 47 20Anyogu Ibid Pg 75 21 (1976) 3 All ER 549 See also Ikemson vs. State (1989) 1 CLRN 1 Page | 133 AJLHR 3 (2) 2019 victim to recognise the suspect who participated in carrying out the crime or where the identity of the said suspect or accused person is in dispute. However, where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender. Accordingly, where the suspect is one that is well known to the witness, the issue of identification will not arise. In Olalekan v State22, where the wife of the deceased even at 1.00am and without the aid of any illumination recognized the appellant who confirmed that the witness could recognize him by day or night, it was held that identification parade was unnecessary. Procedures for Identification Parade As earlier stated, one of the guiding principles of identification parade is that it is not necessary where the defendant has been aptly identified by the victim who is very familiar with the defendant. In Okiemute v State23, it was decided that an identification parade is not necessary when the witness claims that the perpetrator of a crime is a familiar or definite person by name or his abode who can be positively identified if the victim is given the opportunity to do so. In Balogun v AG Ogun State24, the Supreme Court per Uwaifo, J.S.C, made it clear that an identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness's power of recognition based on the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubt as to who was seen in connection with the offence to require identification parade. An identification parade, will be absolutely unnecessary when the witness claims to have a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect. From what has been said above in relation to identification parade, it is clear that it is not conducted in vacuo or for no cause at all. Before the conduct of an identification parade is embarked upon in the cause of police investigation, the need for same must have arisen from information given to the police by an eye witness to the commission of the crime showing that he had some encounter no matter how brief with the perpetrator(s) of the crime, who the eye witness did not know before, and who the eye witness must have at least told the police he could identify if seen again or must have told the police his features that he noted and which marks him out from other persons. In Bozin v. State25, Oputa, JSC delivering the lead judgment posited at page 472 as follows:- The identification of a suspected person must be very carefully conducted and it is very wrong to point out a suspected person and ask: 'Is that the man?' The usual and proper way is to place the suspected person among a sufficient number of others 22 2001 18 NWLR pt 746 at 793 23(2016) LPELR-40639(SC) 24 (2002) 6 NWLR (Pt.763) 512 25 (1985) 2 NWLR 465; (1985) 16 NSCC (Pt. 11) 1087, Page | 134 EWULUM: Is that the Man? Imperatives for Identification Parade in Nigeria and to have the identifying witness pick out the accused without any assistance. This is what is called an identification parade. Oputa JSC inBozin’s case, cited an older English case of Thomas v. Chapman (VIII) 7 CR. APP. R. 53 at 54 and the case of George v. Harold Willians (1912) 8 CR. APP. R. 84 following an earlier case of John Smith v. Evans (1908) 1 CR. APP. The question was just asked 'Is that the man?' as in the instant case, where Phillimore J castigated the police and remarked thus: Such methods as were resorted to in this case make this particular identification nearly valueless, and the police authorities ought to know that this is not the right way to identify. I say no more.' PW1 pretending he did not know the appellant from Adam only said he is part of the gang that invaded my home. And pretending he was seeing the appellant for the first time at the police station in responding to the question, 'Is that the man’, said 'This is the man I am looking for'. PW1's identification in the instant case certainly to say the least is valueless. Put succinctly, the procedure for identification parade is to place the suspected person among a sufficient number of others and to have the identifying witness pick out the accused without any assistance. In Alabi v. State26, the following considerations were laid down for a valid identification parade: - ‘(a) the description of the accused given to the police shortly after the commission of the offence; (b) the opportunity the victim had for observing the accused and; (c) what features of the accused noted by the victim and communicated to the police which mark him out from other persons’. In Oluwasegun v State27, it was held that, The identification of a suspected person must be very carefully conducted and it is very wrong to point out the suspected person and ask ‘is that the man?’. The usual and proper way is to place the suspected person with a sufficient number of other people and to have the identifying witness pick out the accused without any assistance. What happened in the case of the accused Appellant is not an identification parade known to law. Consequences of Improper Identification Parade In Afolabi v State28, the Court of Appeal stated that ‘it is settled law that whenever the case against an accused person depends wholly or substantially on the correctness on his identification and he alleges that the identification was mistaken, the Court must closely examine the evidence so that any real weakness in the identification evidence must lead to giving the accused person the benefit of the doubt. It should be re-stated and re-emphasized that in a Criminal trial of this nature where the prosecution's case depends entirely on the evidence of eye witness (es) whose evidence of identification is in issue or arises the prosecution has the burden duty to ensure that the 26 (1993) 7 NWLR (Pt.307) 511 27(2017) LPELR-43705(CA) 28 (2013) 13 NWLR (Pt. 871) 292 @ pp. 310-311 Page | 135 AJLHR 3 (2) 2019 identification evidence is detailed and meticulous on the identification of the accused as to leave no one in doubt that it was the accused and no one else that was seen committing the crime29. The Courts in a plethora of authorities have stated and restated that by the time hallowed principle of our Law, where there is the slightest reasonable doubt, not unreasonable or fanciful doubt, the doubt should as a matter of Law be resolved in favour of the accused30. Our Criminal Jurisprudence has been clear on the effect of doubt in the prosecution’s case. The correct assertion is that once a doubt arises, that doubt provided it is reasonable must be resolved in favour of the defendant. This same effect is equally what will happen where the identification parade has issues and the identity of the suspect shrouded in uncertainty. 4. Conclusion The identity of a suspect is a very essential part of our criminal justice system. The issue of identification may stall a finely prepared prosecution. Despite the fact that there are many modes of identification, that of identification parade has been common in Nigeria. Identification parade has its own flaws and in some cases may lead to the conviction of innocent persons with whom the identifier had a previous quarrel. It is therefore pertinent to encourage our law enforcement agencies to adopt modern trends in identification of suspects. This will fast track and ensure the identity of the person finally convicted for the offence which he committed. 29Abubakar and anor v State(2016) LPELR-41547(CA) 30Akpabio v orsv. The State (1994) 7 NWLR (Pt. 359) 635, Muhammad and ors v The State (2013) LPELR - 22852, Solola v State (2005) 2 NWLR (Pt. 937) 460, Kalu v State (1988) 4 NWLR (Pt. 90) 503 Page | 136 AJLHR 3 (2) 2019 THE EVOLUTION OF DISABILITY RIGHTS IN NIGERIA: PITFALLS AND PROSPECTS* Abstract The outlook for Nigeria’s 25 million persons living with disabilities has historically been bleak. Most disabled persons lacked access to education, healthcare and employment opportunities that could lift them out of the vicious cycle of poverty and debility. This paper chronicles Nigeria’s awakening to the needs of the disabled and the economic advantage of empowering them versus condemning them to perpetual dependence. The paper examines the evolution of disability laws and policies, highlighting the contributions of disability based non-governmental organizations (DBO’s) to the national discourse on disability rights. It interrogates the efficacy of these indigenous disability laws and policies, their pitfalls and prospects for achieving enforceable disability rights. The paper gives an overview of the Discrimination against Persons with Disabilities (Prohibition) Act, 2018 and urges its speedy execution with significant representation from disabled persons. DBO’s are encouraged to keenly monitor and insist on the implementation of their rights by National Disability Commission whilst maintaining the visibility and voice of the disabled in national discourse. Keywords: Rights of disabled persons, Nigeria’s disability laws and policies, disability discrimination, inaccessible education and employment facilities, disability rights movement. 1. Disability Defined The United Nations Convention on the Rights of Persons with Disabilities (CRPD)1 identifies persons with disabilities as people who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.2 The International Labour Organisation (ILO) also adopts a broad definition describing a disabled person as an individual whose prospects of securing, returning to, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognized physical, sensory, intellectual or mental impairment.3 Both definitions cover a broad range of people including those with overt impairments (such the blind and deaf) and those with hidden disabilities (such as diabetes, epilepsy, mental health), and even those with progressive and recurring conditions (such as cancer) and also covers past disabilities. These definitions are sufficiently broad to cover millions of people who suffer from a wide range of impairments, many of which do not necessarily consider themselves to be disabled. Hence, disability may be physical, mental, developmental, cognitive, emotional, psychological and/or a combination of the above. It may be present from birth or occur at any point during a person’s lifetime. Disability is an umbrella term conveying impairment, activity limitation and participation restrictions. In fact, most people will, at some points in their lives, experience one type of disability or the other.4 *Chineze Sophia IBEKWE, PhD, Senior Lecturer, Faculty of Law, Nnamdi Azikiwe University, Awka; and *Onyeka Christiana ADUMA, LLM, Lecturer, Faculty of Law, Nnamdi Azikiwe University, Awka. 1The CRPD is the first United Nations human rights convention to expressly and exclusively protect persons with disabilities. The Convention was drafted in December 2006, came into force in May 2008 and has been ratified by numerous United Nations member states, including Nigeria. 2 Article 2 CRPD 3ILO Publications on Disability: Inclusion of Persons with Disabilities, http://www.ilo.org/skills/areas/inclusion-of- persons-with-disabilities/lang--en/index.htm accessed 22/2/13. 4World Health Organisation, ‘Understanding Disability’www.who.int/world_report/2011chapter1.pdf, accessed 20/5/2019. Page | 137 IBEKWE & ADUMA: The Evolution of Disability Rights in Nigeria: Pitfalls and Prospects 2. Prevalence and Causes of Disability in Nigeria The World Bank approximates Nigeria’s population at 197 million with one of the largest youth demography in the world.5 There is a severe paucity of accurate home-grown data on the population of persons living with disability in Nigeria, but the World Health Organization (WHO) estimates that there are 25 million with up to 3 million of them so severely afflicted that they are unable to independently function physically and/or socially.6 In 2013, the Nigerian National Assembly gave an estimated figure of 20 million people living with disability7 which optimistically falls below the world estimate that 15% of the global population living with disability.8 A disability survey9 in Kogi and Niger states of Nigeria investigated demographic characteristics of people with disabilities, including gender, age, religion, educational, occupational, employment and economic status. The survey found that the most common disabilities involved vision, mobility and/or hearing. A third of these cases were less than 21 years of age, had no occupation and were predominantly Muslim. Over half of them had no education or skills and so the common occupation was begging, subsistence farming and trading.10 In spite of their large numbers, persons with disabilities are commonly stigmatized and isolated resulting in dire economic hardship. The World Health Organization (WHO) further reports that ‘on average, persons with disabilities and/or households with a disabled member experience higher rates of poverty and deprivation, including food insecurity, poor housing, lack of access to safe water and sanitation, inadequate access to healthcare, and have fewer assets than persons without a disability.’11 Nigeria is sorely lacks credible statistics on poverty rates among persons with disabilities but despite the general statistical deficit, the Nigerian Institute of Legal Studies (NIALS) posits that up to 9 out of 10 persons with disabilities in Nigeria live below the poverty line.12 This is not surprising given that Nigeria has recently been identified as the world’s poverty capital with a poverty rate of 62% of the general population.13 The survey highlighted the vulnerability of persons with disabilities, in particular ethnic minorities, the elderly, women, children and the internally displaced.14 Disability, Education and Poverty: The United Nations estimates that at least 8.7 million children are out of school, making Nigeria the country with the world’s largest population of children out of school.15 Obviously, children with disabilities face even greater challenges enrolling in school and many are never enrolled at all. Whereas the country lacks specific data on the proportion of children with disabilities or 5The World Bank, ‘Overview - World Bank in Nigeria’www.worldbank.org/en/country/Nigeria, accessed May 20, 2019. 6World Health Organization, World Report on Disability, 2011, http://www.who.int/disabilities/world_report/2011/report.pdf?ua=1. 7 http://www.nassnig.org/nass/news.php?id=420). 8 World Health Organisation, based on 2011 global population estimates, www.who.int/disabilities/world_report/2011/report/en/ accessed 20/5/19. 9Conducted by the Leprosy Mission Nigeria. 10 N Smith,’The Face of Disability in Nigeria: A Disability in Kogi and Niger States’, Disability, CBR and Inclusive Development, Vol 22, No 1, 2011, http://dcidj.org/article/viewFile/11/27. 11World Health Organization, World Report on Disability, 2011, ibid. 12 N Amusat, ‘Disability Care in Nigeria: The need for professional advocacy’, (2009) AJPARS, Vol.1, No. 1, June 2009, p. 30-36, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.1031.9869&rep=rep1&type=pdf. 13 CIA, The World Factbook: Nigeria, May 2, 2018, https://www.cia.gov/Library/publications/the-worldfactbook/ geos/ni.html. 14 DFID, Development Tracker, Nigeria, May 2018, https://devtracker.dfid.gov.uk/countries/NG/projects, Nigeria Country Report to DRF/DRAF Grantmaking Committee Meeting, June 2018. 15‘Education in Nigeria’, World Education News + Reviews, March 7, 2017, https://wenr.wes.org/2017/03/education- innigeria. Page | 138 AJLHR 3 (2) 2019 figures on their access to education, UNICEF estimates that 90% of children with disabilities in developing countries are out of school.16 Justifying this estimate, a policy brief of the Joint National Association of Persons with Disabilities (JONAPWD) states that Kwara State has a population of 270,000 children with disabilities, and only 10,000 are receiving some level of basic education. That represents only 3.7% of children with disabilities enrolled in education.17 Many of the 8.7 million children who are out of school are also left out due to poverty, gender, ethnicity, or a combination of these factors.18 Disability and Employment Discrimination: People with disabilities seek jobs for much the same reasons as nondisabled people. They wish to earn a living, live independently, and make social contacts. As with other job-seekers, finding a job and progressing in it is important for their self-esteem. Like other job-seekers, they differ enormously in age, location and aspirations. They are also more likely to have faced difficulties in getting an education and/or accessing vocational training.19 Unfortunately, many of the obstacles which disabled people face arise not from the disability itself, but rather from the way society is organized. Barriers which often prevent disabled people from getting jobs include restrictive practices, rules and regulations relating to education, training, recruitment and work practices which are impossible for people with certain disabilities to observe, not to mention inaccessible workplaces. Arguably, the most insurmountable obstacle is the negative attitudes of potential employers about their ability to work and to contribute to the performance of the enterprise.20 Nigeria is a signatory to the ILO Convention on the Vocational Rehabilitation and Employment of Disabled Persons21 which makes provision for employment of persons with disabilities without discrimination. Notwithstanding, employers give several reasons for not recruiting people with disabilities: they perceive people with disabilities as less talented and requiring greater supervision, less able to adapt, prone to requesting paid sick leaves, payment of their hospital expenses and compassionate waivers from certain duties.22 Since employers are interested in taking on the most talented and suitable person for a particular job, it is hardly surprising that when they assess a handicapped candidate in the light of their perception of people with disabilities, they tend to take on a non-handicapped person rather than a candidate with disabilities.23 The reasons adduced by employers for discriminating against the disabled may appear reasonable but such reasons are often based on 16 UK Parliament Publications and Records, Select Committee on International Development, ‘DFID’s work on education: Leaving No One Behind’ November 17, 2017, https://publications.parliament.uk/pa/cm201719/cmselect/cmintdev/367/36706.htm. 17JONAPWD.Inclusive and Accessible Basic Education for Children with Disabilities in Kwara State, 2016. 18 UK Aid, Education Sector Support Program in Nigeria, Inclusive Education Policy Developments Federal Level, 2016, http://www.esspin.org/esspin-documentation/briefing-notes 19 B Murray & R Heron, ‘Placement of Job-Seekers with Disabilities’, Journal ofPlanning, Research & Economics Administration, http://www.moital.gov.il/NR/rdonlyres/DB61E5CA-7505-4CC8-B2F8- 161F0DE2E03A/0/Discriminatiomaginstpeoplewithdisabilitiesinthelabormarket.pdf accessed 24/4/19. 20E. Etiyebo&O. Omiegbe,‘Religion, culture and discrimination against people with disabilities in Nigeria’, African Journal of Disability. Vol:5 (1). 192, 2016. DFID, Development Tracker, Nigeria, May 2018, https://devtracker.dfid.gov.uk/countries/NG/projects, Nigeria Country Report to DRF/DRAF Grantmaking Committee Meeting, June 2018. 21Convention No. 159 of 1983. 22 M Christianson, ‘Incapacity and Disability: A Retrospective and Prospective Overview of the Past 25 Years’ (2004) ILJ 879- 896 23 MJ Bjellandet al, ’Age and Disability Employment Discrimination: Occupational Rehabilitation Implications’, Journal of Occupational Rehabilitation (2009), Published online 14 August 10-10-2009. Page | 139 IBEKWE & ADUMA: The Evolution of Disability Rights in Nigeria: Pitfalls and Prospects prejudiced misconceptions. It is indeed possible and beneficial to fully integrate persons with disability into the workforce. Disability is a viscous cycle as it is both caused by poverty and causes poverty. It is caused by poverty when able-bodied people develop disability due to inadequate nutrition, disease, unclean and dangerous environs, inefficient and inaccessible health care services, poor infrastructure and poor lifestyle choices often caused by ignorance and lack of education.24 Disability causes poverty by reducing access to education, employment, developmental opportunities and resources.25 Successive governments have shied away from the challenge of ensuring equal access for the nation’s most vulnerable citizens. Equal access for the disabled would require the concerted enforcement of affirmative legislative and policy action towards the disabled. In the next segment we will examine the evolution of laws for the disabled in Nigeria. 3. Evolution of Disability Rights and Policy: The Disability Act and the 1999 Constitution Historically, most laws and policy guidelines concerning the disabled are culled from international human rights conventions, treaties and protocols. For instance the United Nations Educational, Scientific and Cultural Organisation 1946 (UNESCO) and the Universal Declaration of Human Rights 1948 (UDHR) strongly influenced Nigeria’s 1977 National Policy in Education. The policy stated that the disabled, the disadvantaged and the gifted/talented, be they children or adults, would be granted adequate education to enable them contribute meaningfully to the development of the nation.26 From its early days, the Nigerian government would ratify various specific disability related Convention like the ILO Convention No 15a on Vocational Rehabilitation and Employment of Disabled Persons (1983/85) and the World Program of Action Concerning Disabled Persons (1981). However, because Nigeria is a dualist country which requires further domestication of ratified international instruments before they can become legally enforceable, these conventions did not carry the force of law. It was not until the African Charter on Human and Peoples’ Rights (1982) was domesticated27 (re-legislated by the national assembly) that Nigeria enshrined key international human rights provisions which could be legally enforced to promote the rights of citizens28 and potentially, the disabled. The Nigerians with Disabilities Act of 199329 was the first indigenous legislation specifically targeted at backing the disabled in various facets of life: education, healthcare, transportation, accommodation, employment and freedom from all shades of discrimination. The Act was heavily influenced by the Convention on Rights of the Child (1990), the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) and the Declaration on Rights of the Disabled (1995). The Disability Act declared the responsibility of government and other authorities and persons to adopt and promote policies that would ensure full integration of the disabled into the mainstream of the society.30 Mainstreaming and adequate education under the Act entailed the right of the disabled to free 24 United Nations, ‘Final report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of persons with Disabilities’, UN General Assembly, November, 2006; A Elwan ‘Poverty and Disability; A background paper for the World Development Report,’ World Bank. 1999. 25World Bank. ‘Social Analysis and Disability: A Guidance Note. Incorporating Disability Inclusive Development into Bank-Supported Projects’. Social Development Department in Partnership with the Human Development Network’s Social Protection, Disability and Development Team, The World Bank, 2007. 26Section 10 National Education Policy 1977. 27 African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act) Chapter A9 No 2 of 1983. 28Abacha v Fawehinmi (2000) LPELR-SC 45/1997. 29Formerly Nigerians with Disability Decree of 1993. now Nigerians with Disability Act, Cap 202 , LFN 2004 30S. 2(1) and (2). Page | 140 AJLHR 3 (2) 2019 primary and tertiary education, the adaptation of educational facilities to be accessible, the training of special educational personnel to handle their unique learning needs, vocational training and accessibility to public institutions, infrastructure and employment. There was also what may be referred to affirmative action as the Act required all employers of labour to reserve for the disabled not less than 10% of the work force.31 A key problem with the Disability Act is that its definition of ‘disabled person’ was restricted to only those who had obtained a preliminary or permanent certificate of disability.32 Therefore, the majority of disabled persons who had no knowledge of such a certificate, or were unable to obtain it were not eligible for the protections contained in the Act. The major problem however, had to do with enforcement of the Act. A regulatory body known as the National Commission for People with Disability was to have been established alongside the Disability Act.33 It was meant to promote the welfare of the disabled in general and play a coordinating role between government and disabled Nigerians in eliminating those social and cultural practices which tend to discriminate against and dehumanize the disabled. However, the Commission was not adequately funded or staffed, was not empowered to request recruitment data from employers in order to monitor recruitment neither could it institute legal actions in cases of alleged disability discrimination. In practice therefore, the Commission was ineffectual and died before it could live. And so, the responsibility for disability-related issues has remained an addendum in the Rehabilitation Department of the Ministry of Women and Social Affairs.34 The 1999 Constitution of the Federal Republic on Nigeria (CFRN) with its lofty ideals in Chapter II35 and it’s robust fundamental human rights provisions in Chapter IV, appeared to give credence to disability rights. Section 17(2) and (3) of the CFRN provide thus: (2) In furtherance of the social order- (a) every citizen shall have equality of rights, obligations and opportunities before the law; (b) the sanctity of the human person shall be recognised and human dignity shall be maintained and enhanced; (3) The State shall direct its policy towards ensuring that- (a) all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment; (g) provision is made for public assistance in deserving cases or other conditions of need; Ordinarily, the above sections should be ample basis for providing special facilities to improve accessibility and sanction discrimination against the disabled but unfortunately, these laudable 31Section 6(2) ibid. 32 According to Article 3 of the Disability Act, a ‘Disabled person’ means a person who has received a preliminary or permanent certificate of disability to have a condition which is expected to continue permanently or for a considerable length of time which can reasonably be expected to limit the person’s functional ability substantially, but not limited to seeing, hearing, thinking, ambulating, climbing, descending, lifting, grasping, rising, any related function or any limitation due to weakness or significantly decreased endurance so that he cannot perform his everyday routine, living and working without significantly increased hardship and vulnerability to everyday obstacles and hazards. 33 Article 14, Disability Act 34 CJ Eleweke& J Ebenso, ‘Barriers to Accessing Services by People with Disabilities in Nigeria: Insights from a Qualitative Study’, (2016) Vol 6(2) Journal of Educational and Social Research, Rome-Italy: MCSER Publishing, May 2016. 35 Chapter II of the 1999 Constitution contains the Fundamental Objectives and Directive Principles of State Policy. Page | 141 IBEKWE & ADUMA: The Evolution of Disability Rights in Nigeria: Pitfalls and Prospects provisions are mere aspirations of the government which are not legally enforceable.36 Again, nowhere in the Constitution are the disabled mentioned, barring a vague allusion of ‘public assistance to deserving cases.’ Nevertheless, these shortfalls can be remedied by recourse to Section 42(3) which is not only legally enforceable, but also wide enough to cover all forms of discrimination: ‘No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.’37 Unfortunately, the writer has been unable to locate a judicial decision on discrimination on grounds of disability which cites either the Constitution or the Disability Act. Nigerians are painfully unaware or laissez-faire over their rights in this area, therefore the judicial waters remain largely untested. 4. Disability Rights Movement in Nigeria Officially, the formulation of policies and programs for persons with disability has been the purview of the Ministry of Women Affairs and Social Development and, as regards access to special education, the Ministry of Education. Women Affairs did not prioritize disability issues, a situation which is evident from the wide margin between the volumes of national women/gender policies and the few disability policies. It has been argued that there has been very restricted resources allocation to disability issues in the Ministry, leading to the conclusion that disability issues were simply not considered important to the government.38 Education has been more proactive in formulating policies for the disabled. For instance the National Policy for Education 2004, in line with government’s free compulsory Universal Basic Education (UBE) mandate, prioritizes inclusive education and specifically, the provision of all necessary facilities to ensure easy access for the disabled and persons with special needs.39 On the other hand, the financial cost of educating a child with special needs in Nigeria is more than four times the amount required to educate a non- disabled child.40 This alone dissuades most households from enrolling their disabled wards in school. In addition, households are discouraged by the lack of appropriate schooling options, poor accessibility to facilities, long distances, lack of transportation and sadly, the low prospects of the disabled child ever becoming self-sufficient, not to mention ever being able to earn a living and contribute to the family’s finances. An appreciable amount of headway made towards the rights and development of persons with disabilities has been the result of advocacy and agitation from organized civil society groups. With time, disabled persons themselves became organised and formed the first indigenous disabled peoples’ organizations (DPO) by name the Joint National Association of Persons with Disabilities (JONAPWD).41 Despite being registered with the Corporate Affairs Commission (CAC), DPO’s were 36 Section 6(6)(c) of the 1999 Constitution makes it clear that these and other directives/objectives contained in Chapter Two are not legally enforceable. 37Badejo v Federal Ministry of Education &Ors, (1996) 8NWLR (464) 15 at 41, (1996) 9-10 SCNJ 51. 38 FE Obiakor and CJ Eleweke, ‘Special education in Nigeria today’, in A Rotatoriet al, Advances in Special Education: International Perspectives, (London: Emerald Publishers, 2014) 379-397. 39 PM Ajuwon, ‘Trainees’ perceptions of Inclusive Education in Nigeria: A preliminary report’ in T Ajobieweet al, (eds) Contemporary Issues in the Education of Persons with Visual Impairment, (Ibadan: Glory-land publishing Co., 2011). 6- 24. 40MA Haruna, ‘The Problems of Living with Disability in Nigeria’ (2017) (Vol.65) Journal of Law, Policy and Globalization, www.iiste.org, 103. 41JONAPWD was established in 1992 at the first conference of persons with disabilities held at the University of Jos in Nigeria. Although it started by representing only persons affected by leprosy, today, JONAPWD is composed of six impairment groups: blind persons, persons with physical disabilities, deaf persons, persons with intellectual disabilities, persons with spinal cord injuries and persons affected by leprosy. JONAPWD currently has 6 zonal coordinators and state chapters in all 36 states of the federation. Page | 142 AJLHR 3 (2) 2019 often required to register again with the Federal/State Ministries of Women Affairs and Social Development in order to acquire the needed recognition to enable them work with the Department of Rehabilitation under the Ministry.42 JONAPWD and the less visible Association for Comprehensive Empowerment of Nigerians with Disabilities (ASCEND)43 soon became umbrella organizations with whom other DPO’s identified and became affiliated. To mention but a few, there is the Spinal Cord Injury Association of Nigeria (SCIAN), the Centre for Citizens with Disabilities (CDD), the Accidents Victim Support Association, Deaf Women in Nigeria (DWIN), the Nigerian National Association of the Deaf (NNAD), and the Resource Centre for Advocacy on Disability, Persons with Disabilities Action Network.44 The Federal and States ministries of Women Affairs are supposed to fund these DPO’s but aside from a few projects, workshops and international travels for persons with disabilities, (for example funding 23 delegates to participate in the 2016 Paralympics in Rio de Janiero)45 government funding has been inconsistent and insufficient.46 To fill the gap, DPO’s have reached out to international donor agencies such as the Open Society Initiative for Western Africa (OSIWA),47 USAID48, DFID49 UNDP50 and DRF/DRAF51 amongst other sponsors. These NGOs engage in various development activities including financial and tactical assistance to DPO’s. 5. CRPD and Agitations for a New Disability Legislation The Convention on the Rights of People with Disabilities, 2006 (CRPD) is a benchmark document established to guide national policy-making and legislation, for building an inclusive society and 42MA Haruna, ibid. 43 Established in 2006, ASCEND was initiated to provide a platform for Nigerians with disabilities to join forces and speak with one voice. 44Nigeria Country Report to DRF/DRAF Grantmaking Committee Meeting, June 2018. 45 Nigerian athletes won 8 gold, 2 silver and 2 bronze medals, meaning that more than half of the delegation came home with medals. T Eludidni, ‘The 12 athletes who made Nigeria proud at Rio Paralympics, setting new record’, Premium Times, www.premiumtimesng.com/news/headlines/210601-12-athletes-made-Nigeria-proud-Rio-Paralympics-setting- new-record, https://en.m.wikipedia.org/wiki/Nigeria_at_the _2016_Summer_Paralympics/. 46MA Haruna, ibid. 47 OSIWA’s program in Nigeria supports the strengthening of constitutionalism and rule of law, electoral processes, equitable management of public revenues, and the rights of women and other vulnerable groups. OSIWA, Nigeria, May 10, 2018, http://www.osiwa.org/countries/nigeria/. 48 The United States Agency for International Development (USAID) has as one of its key goals to increase the capacity of civic advocacy, monitoring and engagement, with a focus on marginalized populations, among them persons with disabilities. USAID, Nigeria Country Development Cooperation Strategy 2015-2020, https://www.usaid.gov/sites/default/files/documents/1860/Nigeria_CDCS_2015-2020.pdf. 49 The UK Department for International Development (DFID) has several projects that seek to address inclusion of persons with disabilities in mainstream society. Indeed, in each category of funding, DFID Nigeria has included a focus on persons with disabilities with recent funding focused on involvement of persons with disabilities in the political process and in access to education. DFID, Development Tracker, Nigeria, May 2018, https://devtracker.dfid.gov.uk/countries/NG/projects. 50 United Nations Development Program (UNDP) works to eradicate poverty and reduce inequalities through sustainable development programs in numerous member nations. 51 Disability Rights Fund/Disability Rights Advocacy Fund (DRA/DRAF) are grant-making collaboratives that support disability rights and advocacy movements around the world via small grants, mid-level coalition grants and national coalition grants depending on the size of the requesting group or the project at hand. DRAF focuses on advancing legal frameworks for disability rights. Page | 143 IBEKWE & ADUMA: The Evolution of Disability Rights in Nigeria: Pitfalls and Prospects fostering disability-inclusive development.52 State parties are to harmonize their domestic law with the CRPD.53 The CRPD raised the discourse on rights of the disabled at the international level resulting in a spate of law and policy legislations, especially in the developing world. The Convention affirmed the large body of empirical evidence which show that people with disabilities experience comparatively lower educational attainment, lower employment, worse standards of living, higher poverty, and poorer health outcomes than their nondisabled counterparts.54 It consequently elevated disability to a human rights and equity issue, stating that people with disabilities have the right to access all aspects of society on an equal basis with others including the physical environment, transportation, information and communications, and other facilities and services provided to the public.55 Not only does it mandate Countries to raise awareness of the rights, capabilities and contributions of people with disability, the CRPD also pledges international cooperation to support national efforts in disability research, capacity building and assistive technologies.56 In the African region, Ghana was among the first to pass a Persons with Disability Act in 2006 (Act 715) to the delight of the Ghana Federation of the Disabled (GFD) and other civil society organizations who had been agitating for such a law for many years.57 It is commendable that in most counties, persons with disability were carried along in the legislative process. Too often in decision-making processes the role of persons with disabilities has been devalued or ignored. The CRPD sought to change this by requiring State parties to ensure that persons with disabilities and their representative organizations take part in law reform and policy development.58 Article 4(3) requires lawmakers to consult with persons with disabilities and their representative organizations and to take active steps to ensure their full and effective participation. Nigeria ratified the CRPD in 2007 and it’s Optional Protocol in 2010. DPO’s and Civil society groups were at the forefront of the campaign for these ratifications and continued to push for domestication of the Convention into national law. Since Nigeria ratified the CRPD in 2007, DPO advocacy efforts have been focused on passing national legislation to domesticate it. JONAPWD and other DPO’s, upped the ante on their demands for a domestic disability law to reflect the rights espoused in the CRPD. They set up a well-coordinated campaign which included massive media engagement, protest marches, grassroots advocacy, visibility campaigns and inter-faith prayer sessions. In 2009, they sponsored a bill to protect the rights of persons with disability. The National Assembly passed that bill but the president at the time59 failed to sign the bill into law. A second bill was introduced in 2015, and again, presidential60 assent was withheld despite the bill being passed by both chambers of the national assembly. In a third attempt in 2016, both the House of Representatives and the Senate passed a fresh bill to ensure the full inclusion of Nigerians with 52United Nations, Department of Economic and Social Affairs, www.un.org/develepment/desa/disabilities/convention-on- the-rights-of-persons-with-disabilities-crpd-10. 53 Article 4 CRPD. 54 See for examples, footnotes 4 – 14 above, J Durham et al, ‘The Convention on the Rights of Persons With Disabilities: A Foundation for Ethical Disability and Health Research in Developing Countries’ (2014) 104 (11) Am J Public Health, 2037-2043. 55Articles 9, CRPD. 56Articles 8 and 32 CRPD. 57 Several other African countries have since then enacted/adopted specific national policy and/or laws on disability. See United Nations, Global Status Report on Disability and Development, 2015. 58 Article 4(3) CRPD requires lawmakers to consult with persons with disabilities and their representative organizations and to take active steps to ensure their full and effective participation. 59 President OlusegunObasanjo. 60 President Goodluck Jonathan Page | 144 AJLHR 3 (2) 2019 disabilities into society and to eliminate all forms of discrimination against them. A joint conference committee for the harmonization integrated the two bills to create one bill, which was passed by both chambers.61 Unfortunately, the (harmonized) bill failed to become law for the third time. Despite the failure to influence the passage of a national disability rights bill, advocacy by the DPO’s succeeded in bringing disability issues to the national front-burner. Various ministries began to formulate policies in response to submissions from specific disability groups. The national assembly was also influenced to recognize the peculiar need of the disabled when enacting service laws. These laws and policies drew inspiration from the CRPD. To mention a few: 1) National Policy on Inclusive Education, 2016: Prepared by the Federal Ministry of Education in close cooperation with the Universal Basic Education Commission, National Education Research and Development Council, National Commission for Colleges of Education, National Commission for Mass Literacy, Civil Society Organizations (CSOs) and DPOs after consultations at state and national levels. 2) The National Health Act 2014 and the National Health Policy of 2016: Here, the Ministry of Health set policy standards for health delivery by establishing a framework for the development and management of a national health system. This framework mandated the revamping and construction of primary health centers in each of 10,000 wards to provide 100 million Nigerians with access to basic and affordable health care services. The Act made provisions for persons with disabilities to access free healthcare services.62 3) The National Policy on Albinism 2012: Made by the Ministry of Education to improve the status of persons with albinism through equal access to social services such as education, healthcare, social, political, and economic opportunities.63 The Policy was reviewed in April 2019 to facilitate adequate planning and allocation of resources to albinism issues, especially as regards education.64 4) INEC’s65 Framework on Access and Participation of Persons with Disabilities in the Electoral Process, 2019: The national electoral body made this policy framework at the behest of the Centre for Citizens with Disabilities – a DPO. The framework focuses on facilitating the right to vote for persons with disabilities, by identifying and addressing the core barriers that prevent voting.66 There have also been successes of incorporating the CRPD into state and local laws and policies. At least four states have enacted laws to protect the rights of disabilities (Ekiti, Plateau, Lagos, and Bauchi), whilst six states have adopted inclusive education policies (Enugu, Jigawa, Kaduna, Kano, Kwara and Lagos).67 Amongst these, the Lagos State Special Peoples Law (2011) stands out because it incorporates 61‘National Assembly urged to fast track Disability Bill for assent’, PM News, January 2018, https://www.pmnewsnigeria.com/2017/12/12/national-assembly-urged-fast-track-disability-bill-assent/. 62The Law Library of Congress. Global Legal Monitor, ‘Nigeria National Health Bill Enacted’, December 16, 2014, http://www.loc.gov/law/foreign-news/article/nigeria-national-health-bill-enacted/. 6361 Federal Ministry of Education. National Policy on Albinism, 2012, http://albinofoundation.org/wpcontent/ uploads/2017/04/National-Policy-on-Albinism.pdf. 64 O Aluko, ‘FG Reviews National Policy on Albino’ Punch Newspaper April 11, 2019, www.punchng.com/fg-reviews- national-policy-on-albino/amp/ 65 Independent National Electoral Commission, Nigeria. 66 Independent National Electoral Commission, INEC: Mainstreams Persons Living with Disabilities into the Electoral Process, May 2018, http://www.inecnigeria.org/?inecnews=inec-mainstreaming-persons-living-with-disabilities-into- theelectoral-process. 67www.laws.lawnigeria.com, Lagos State Special Peoples Law (2011), sections 26 – 29. Page | 145 IBEKWE & ADUMA: The Evolution of Disability Rights in Nigeria: Pitfalls and Prospects many of the obligations under the PRPD such as the non-discrimination, education, health, employment, modification of accommodation for accessibility and data-collection provisions.68 6. Discrimination against Persons with Disabilities (Prohibition) Act 2018 The failure of the third attempt to pass the revised disability bill sparked national protests from DPO’s and concerned citizens across the country. The fact that president Buhari had appointed a person with disability as Senior Special Assistant on Disability Matters in 2016 to promote disability rights and in governance and society had raised the hopes of the populace that the President was indeed sympathetic to the cause. DPOs approached the Senate for assistance.69 The issue continued to heat the polity until the bill received presidential assent on the 23rd of January 2019, just a few weeks before the 2019 national elections.70 The new Disability Act prohibits discrimination on grounds of disability in any manner or circumstance and imposes a fine of N1, 000,000 for corporate bodies and N100, 000 for individuals or a term of six months imprisonment for violation. It also guarantees the right to maintain civil action for damage by the person injured against any defaulter.71 It is henceforth mandatory that before any public structure is erected, it must conform with the new building code. A government or government agency, body or individual responsible for the approval of building plans shall not approve the plan of a public building if the plan does not make provision for accessibility facilities in line with the building code. An officer, who approves or directs the approval of a building plan that contravenes the building code, commits an offence and is liable on conviction to a fine of at least N1,000,000 or a term of imprisonment of two years or both.72 Moreover, discrimination is prohibited in public transportation facilities and service providers are to make provision for the physically, visually and hearing impaired and all persons howsoever challenged. This applies to seaports, railways and airport facilities.73 A five-year transitional period is stipulated within which public buildings, structures or automobiles are to be modified to be accessible to and usable by persons with disabilities, including those on wheelchairs.74 The Act also gives persons with disability the right to free and inclusive education and healthcare, the right of first consideration in queues, accommodation and emergencies and condemns the act of using a person with disability for begging. All public organizations shall, as much as possible, have persons with disabilities constituting at least 5% of their workforce. The Act also encourages their participation in politics and public life.75 Finally, the Act provides for the establishment of a National Commission for Persons with Disability which shall be vested with the responsibility for the education, healthcare social, economic and civil rights of persons with disabilities.76 68 Sections 20 – 24, Lagos State Special Peoples Law (2011)., Nigeria Country Report to DRF/DRAF Grantmaking Committee Meeting, June 2018. 69Uwadima, P. ‘As NASS Sets to Transmit Disability Bill to PMB for Assent’, Leadership, March 4, 2018, https://leadership.ng/2018/03/04/nass-sets-transmit-disability-bill-pmb-assent/. 70 J Agbakwuru, ‘Buhari signs Disability Bill into Law’, Vanguard Newspaper, January 24, 2019, www.vanguardngr.com/2019/01/buhari-signs-disability-bill-into-law 71 Section 1, Discrimination against Persons with Disabilities (Prohibition) Act, 2018 72 Sections 3 – 8, ibid 73Parts III and IV, ibid. 74Section 6, ibid. 75Part V and VII, Section 16 – 30 ibid. 76Section 33, ibid. Page | 146 AJLHR 3 (2) 2019 7. Conclusion and Recommendations The passing of the Discrimination against Persons with Disabilities (Prohibition) Act is indeed commendable and a step in the right direction. However, we know that without enforcement, this Act will remain a paper tiger, just like its predecessor (the Disability Act of 1993). The pitfalls that engulfed previous efforts at disability legislation should be avoided so that we can harness the prospects of this laudable Act. The government is therefore urged to ensure a speedy deployment of the Act, the first step being to quickly inaugurate the key officers of the National Disability Commission who will thereafter propel the full implementation of that Act. The DPO’s, non-governmental organizations and other relevant stakeholders that championed the passage and assent of the new Disability Discrimination (Prohibition) Act are encouraged to maintain their momentum for the next phase of advocacy. This second phase would involve many things: a keen monitoring of persons appointed and/or recruited into the Disability Commission to ensure the inclusion of sincere and vocal persons with disability; monitoring the Commission’s budget allocation and implementation; diversifying the advocacy movement to capture different impairment groups, especially less prominent ones so as to ensure a representation of diverse needs and perspectives; continuing to amplify the voice and visibility of persons with disability so that advocacy efforts and government attentions do not dwindle; capacity building amongst the DPO’s in the areas of education, access to information, policy analysis and research. Finally, both the government and stakeholders should mount sustained campaigns for mass awareness of the rights espoused in the Act, for the benefit of or persons living with disabilities and the nation. Everyone should be made aware of their duties and obligations under the Act whilst the disabled should be informed of the existence of the law and how to seek redress in the event of a breach. This campaign would be more effective if the Ministry of Information, the National Orientation Agency, conventional media outfits, social media influencers and traditional institutions can be co-opted to debunk the negative perceptions and prejudices surrounding disability and the disabled. Page | 147 AJLHR 3 (2) 2019 LOOKING BEYOND THE ACTORS AND UNTO THE CAUSE: THE LEGAL STATUS OF MILITANTS IN THE NIGER DELTA REGION OF NIGERIA* Abstract This paper analyses the situation in the Niger-Delta region of Nigeria with respect to the activities of the militants. It also attempts an analysis of the legal status of these militants despite the cause of the militancy, the determination of which will determine their culpability. Keywords: Niger Delta, Militants, Legal Status, Right to Self Determination 1. Introduction The paper is divided into seven parts. Part I discusses the background to the study. Part II discusses the general background of the topic, part III attempts a discussion on the right to self-determination and the causes of the agitation in the Niger-Delta region of Nigeria drawing light from the 1999 Constitution, Land Use Act and indeed earlier legislations that sparked off these agitations. Part IV discusses the legal status of these militants despite the causes of the militancy part V discusses the framework for responsibility of the militants, part VI discusses the framework for enforcement of the laws against these militants and finally part VII concludes the paper. 2. General Background The Niger Delta region of Nigeria located in the South- South comprises six states namely: Akwa Ibom, Bayelsa, Cross River, Delta, Edo and Rivers. It is endowed with rich natural resources which include one of the largest deltas in the world1; third largest mangrove in the world,2 largest wetlands in the world;3 and most extensive fresh water swamp forests in West and Central Africa.4 It hosts Oloibiri town where crude oil was first discovered in commercial quantities in 1956, it holds 60-80% of all Nigerian plant and animal species5. It has oil reserves that became the main stay of the Nigeria‟s economy since the discovery of oil in commercial quantities.6 The natives of this region have had long feud with the Government over ownership and control of natural resources from that area, a claim that originated from the change in the structure of ownership which hitherto resided in the natives but was by an Ordinance vested in the Crown and in the Federal Government (a progeny of the Crown) after independence in which the said legislations totally divested the people of all rights and ownership over oil resources and land. This is the genesis of claim for economic self-determination which the government has denied and *Chukwudumebi OKOYE-ASOH, LLM (Benin), PhD Candidate, Faculty of Law, Rivers State University. Phone: 08162261318, 08020755121. E-Mail: [email protected]. *Ujah Mauree AKUNNA, LLM, PhD Candidate, Faculty of Law, Rivers State University, and *Jessica NWINEE, LLM, PhD Candidate, Faculty of Law, Rivers State University. 1Niger Rivers Delta‟ < http://www.World wild life. Org/wildworld/profile/g200/g155.html> accessed 11 July 2017 2Human Rights watch Report, „The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria‟s oil producing Communities‟, HRW Index No. 1-564 32- 225-4(1999), p.49 3R. Rangley „ International River Basin Organization in sub- Saharan Africa‟, Technical paper 250 (world Bank, Washington D.c. 1994) 4D. Moffat & O. linden, „ perception and Reality: Assessing Priorities for Sustainable Development in the Niger Delta‟ (1995) 24 Ambio 7-8 5.N.J. Ashon- Jones and O.N. Douglas, „Report to Sktoil (Nigeria) LTD: Baseline Ecological Survey of the Nigeria Delta‟ in K. Ebeku, Oil and Niger Delta people in international law: Resources Rights, Environmental and Equity Issues (Germany, Rudiger Koppe Verlag 2006) p.130. 6 I. Gary and T. Karl, Bottom of the Barrel: Oil Boom and the poor ( Baltimore: Catholic Relief Service, 2003)p. 3 Page | 148 OKOYE-ASOH, AKUNNA & NWINEE: Looking Beyond the Actors and unto the Cause: the Legal Status of Militants in the Niger Delta Region of Nigeria the attitude of government led to armed conflicts organized by different youth organizations in the region. The agitation of militants in the Niger Delta region of Nigeria has become a growing concern to scholars in the circles of human rights and international humanitarian law. One major reason for this concern is the nature and cause of the agitation. On one hand the inherent right to economic self-determination, the right to own property – land is at stake which stands parallel to the provisions of the 1999 Constitution and the Land Use Act of 1978. These laws and others before vest ownership of all land in the government. Furthermore, the agitations in this region have led to various atrocities being committed ranging from violence to life and property, to environmental degradation in the pretext of a just agitation or war. How do we tag these militants, can they be legally classified as combatants under the law or are they mere rebels and criminals? Is there an ongoing armed conflict in the context of international humanitarian law or is the situation in that region a mere situation of violence. Indeed, while it may be easily classified in the Niger delta region as situation of violence under Article 1(2) of the Additional Protocol 1 (hereinafter AP 1), the challenge in classifying these groups of persons stems from the fundamental philosophy of human rights law which is the inalienability of the human rights. Human rights indeed are sacrosanct and inviolable and according to Kayode Eso in Ransome Kuti v. A.G. of Nigeria7 such human rights are above the ordinary law of the land. In this situation, the Land Use Act seems to be in conflict with the philosophy of human rights law and the question of the application of IHL to such agitation in also an issue. 3. The Right to Self Determination and the Causes of Militancy in the Niger Delta Region „National aspirations must be respected; people may now be dominated and governed only by their own consent. Self-determination is not a mere phrase; it is an imperative principle of action...”8The right of a people to self-determination is a cardinal principle in modern International Law (commonly regarded as jus cogens rule), binding as such, on the members of the United Nations (hereinafter UN) as authoritative interpretation of the Charter‟s norms.9 It states that people based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference.10On 14 December 1960, the United Nations General Assembly (hereinafter UNGA) Resolution 1514 (xv) under the Declaration on the Granting of Independence to Colonial Countries and Peoples which supported the granting of independence to colonial countries and people provided an inevitable legal linkage between self- determination and its goal of decolonisation. It postulated a new international law based on the right of freedom of economic self-determination. On October 24, 1970, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states11 was adopted unanimously by the General Assembly during a commemorative session to celebrate the twenty-fifth anniversary of the UN. This instrument 7 (1985) 2 NWLR PT 6, 211 - 230 8American President Woodrow in his famous self- determination speech on 11 February 1918 after he announced his fourteen points on 8th January 1918 9Mcwhinney, E., Self- Determination of Peoples and Plural –Ethnic States in Contemporary International Law: Failed States, National- Building and the Alternative Federal Option.( Martinus Nijhoff publishers 2007) p.8 10Clause 3 of the Atlantic Charter states „...respect for the right of all people to choose the form of Government under which they will live, and the wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them‟ 10The UNGA Resolution 2625 11The UNGA Resolution 2625 Page | 149 AJLHR 3 (2) 2019 further developed the concept of self- determination as it became recognized as jus cogens thus a source of international law. The origin of the principle of self-determination is traceable to two American presidents. First is Woodrow Wilson‟s fourteen points after First World War which led to the dissolution of empires with the ensuing reconstruction as a result of formation of new nation states or previous states that were revived, and secondly, Franklin D. Roosevelt and Winston Churchill Prime Minister of the United Kingdom after the signing of the Atlantic Charter on 14 August 1941 by pledging the eight principal points of the Charter. The UNGA resolution in paragraphs 1 and 2 declare that; 1. The subjection of the people to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation. 2. All peoples have the right to self-determination by virtue of that right; they freely pursue their economic, social and cultural development. The right to self-determination is provided expressly in the International Covenant on Civil and Political Rights12 (ICCPR), the International Covenant on Economic, Social and Cultural Rights13 (ICESCR) and the African Charter on Human and Peoples‟ Rights14 (ACHPR). Article 1 (1) of both the ICCPR and ICESCR and Article 25(1) of the ACHPR are the same with the provision of resolution 2 of UNGA. Furthermore, self-determination is now recognised as an integral part of human rights law which has a universal application and is a necessary condition for the enjoyment of other human rights and fundamental freedom15. This is so even as the UN recognised the fact that the denial of right to self- determination is one of the reasons for armed conflicts. The UNGA resolution 1514 arrived at after series of agitations and clamour for political self-determination by colonised people that led to the decolonisation of territories hitherto under colonial rule has been prominent in the past 50 years16. The clamour for economic self-determination also gained prominence after Second World War even if its propagation has been suppressed in the post-cold war era17. The New International Economic Order (NIEO) which was a set of proposals put forward during the 1970`s by some developing countries was meant to be a revision of the international economic system in favour of Third World countries replacing the Bretton Woods system that benefited the leading states that created it – especially the United States. The NIEO with the UN played an important role in the development of economic self-determination. According to Farmer, economic self-determination is a people‟s capacity to dispose freely of natural resources in accordance with democratically taken decisions.18 Self – determination is seen as a political principle due to its secessionist character as different from economic self- determination that is viewed as a mere appendage to it as it can operate independently of the secessionist movement.19 Control of resources is the main reason for claims and agitations for economic self-determination and the outcome of such claims or struggle is dependent on how the government handles the agitators and their claim. Where the government denies the claims as is the case in Nigeria with respect to the demands by the Niger Delta region, violent conflicts will ensue. Recourse will be had to the situation of the law before 12Came into force on 23 March 1976 13Came into force on 3 January 1976 14Came into force on 25 January 2005 15Supra note 3 16 Farmer, A., „Towards a Meaningful Rebirth of Economic Self- Determination: Human Rights Realistic Rich countries‟, (2007) 39: N.Y.UJ. Int’l L.& POL.417,423 17Ibid 18Supra note 16 19Ibid Page | 150 OKOYE-ASOH, AKUNNA & NWINEE: Looking Beyond the Actors and unto the Cause: the Legal Status of Militants in the Niger Delta Region of Nigeria independence and after to ascertain the root cause of agitations for economic self-determination that have led to militancy in the Niger Delta region. This is traceable to the Mineral Oils Ordinance of 191620that altered the structure of oil mineral ownership in Nigeria by vesting the ownership of oil resources in the Crown. Before the 1916 Ordinance, the earlier Ordinance21 and its amendment in 1914 did not make any specific provision on the ownership of oil resources. S.5 of the 1907 Ordinance, provides It shall be lawful for the governor to enter into an agreement with any native authority for the purchase of full and exclusive rights in and over all mineral oils, within and under any lands which are the property of any Native community (Emphasis supplied) This provision reveals that prior to the amalgamation of Nigeria, the colonial government recognised the ownership of land and minerals in and under it in the natives and could only own same by agreement and purchase but the 1916 Ordinance changed the status quo by divesting the native community of their ownership of oil resources and vested it on the Crown. Amendments of 1950 and 1959 consolidated further the ownership of oil resources in the Crown by extending the absolute right and control of the colonial government over oil resources to onshore and offshore reserves as a result, the ownership of oil resources has remained vested in the Federal Government a progeny of the Crown since independence in 1960. Subsequent constitutions and laws such as Petroleum Act;22 Territorial Waters Act;23 Exclusive Economic Zone Act24 and Minerals and Mining Act25 expressly retained government absolute ownership and control over oil resources located mainly in the Niger Delta. S.44 (3) of the 1999 Constitution provides Notwithstanding the forgoing provisions of the section (providing against compulsory acquisition of property without the payment of adequate compensation) the entire property in and control of all minerals, mineral oils and natural gas in, under or upon the territorial waters and Exclusive Economic Zone of Nigeria shall vest in the government of the federation.... S.1 (1) of Petroleum Act States: „The entire ownership and control of all petroleum in, under or upon any lands to which the section applies shall be vested in the state‟. It goes further in sub section 2 to extend the ownership of petroleum to land, all land, both those covered by water in Nigeria and under the territorial waters of Nigeria forms part of the continental shelf or part of Exclusive Economic Zone of Nigeria. The implication of the vesting of ownership of oil resources in the Federal government is that ownership of oil resources hitherto in the hands of the natives of the Niger Delta has been transferred to the federal government and secondly, the exploration and production of the resources invariably became the exclusive preserve of the federal government without recourse to the native host communities. Consequently, the colonial government vested all resources in the Crown while the federal government completed the absolute control of the resource by vesting the ownership of the land in the state.26 20Ibid 21S. 3(1) 221969 231967 241991 replaced by the Maritime Zones Act 25No. 34 1999 repealed by the Minerals and Mining Act 2007 26S.1, 2 of the Land use Act, CAP 15 Laws of the Federation of Nigeria 2004 and S.44 (3) of the 1999 Constitution Page | 151 AJLHR 3 (2) 2019 While the legality of the constitutions and other subsidiary legislations that divested ownership of land and oil resources from the natives is not in doubt, it is instructive to note that all these legislations with the exception of the independence constitution were products of military governments which gave the laws the toga of arbitrariness to the chagrin of the natives who see such legislations as not being reflective of their true wishes. 4. The Legal Status of Militants in the Niger-Delta Region of Nigeria The violent activities of militants in the Niger Delta region of Nigeria which leads in their trails massive destruction of oil pipelines and installations, lives, property, kidnap and rape call for a determination of their legal status. Are they combatants, the title to which gives them the right to participate directly in hostilities, be treated as prisoners of war when captured and to abide by the rules of International Humanitarian Law when fighting? Article 4 (1)-(6) of the Geneva Convention 3 of 194927 provides an elaboration of groups that can be legally classified as Prisoners of War (combatants). They include persons belonging to one of the following categories who have fallen into the power of the enemy: 1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces 2. Members of other militias and members of other volunteer corps, including those of organized resistance movements belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements fulfill the following conditions: a. That of being commanded by a person responsible for his subordinates; b. That of having a fixed distinctive sign recognizable at a distance; c. That of carrying arms openly; d. That of conducting their operations in accordance with the laws and customs of wars 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondence, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. 5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. 6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed unit, provided they carry arms openly and respect the laws and customs of war. Article 4(2) did not exhaustively mention „militias, „volunteer corps and organized resistance movements‟, but the principle equally covers other armed groups however described (whether as paramilitaries, private military companies, guerrillas, insurgents terrorists etc.The description of such groups is largely immaterial. Legally what is decisive is whether these are forces „belonging‟ to a state under Article 4(2) meaning that the state exercises „overall control‟ over their operations. Can this be 271949 Geneva Convention 3 Relating to the Treatment of Prisoners of War Page | 152 OKOYE-ASOH, AKUNNA & NWINEE: Looking Beyond the Actors and unto the Cause: the Legal Status of Militants in the Niger Delta Region of Nigeria said of the Niger Delta militants? Certainly no, as they do not have any link whatsoever with the state let alone being subordinate to it as to be under its control. Furthermore, for the militants to be accorded the status of combatants, they must comply with the above four minimum conditions of combatancy, even where they belong to a state, most will fail to satisfy all of the cumulative conditions. Whether because their operations by their nature do not respect IHL norms of distinction or proportionality, or because they do not comply with the „procedural fair play‟ requirement of showing themselves to the adversary (like terrorists mingling with civilians or committing criminally perfidious attacks like the terrorists). This is however not true of the Niger Delta militants as although they cannot be said to meet the four cumulative conditions under 4(2) they are fighting a just cause . While these militants may be said to be commanded by a person responsible for his command in the person of their commanders, the Movement for the Emancipation of Niger Delta (MEND) for instance is commanded by Asari Dokubo, they have a fixed distinctive sign recognizable at a distance and carry arms openly as envisaged under 4(2) (a) - (c) respectively, but do not conduct their operations in accordance with the laws and customs of wars as stipulated. The spate of bombing of oil installations and pipelines with the consequential spillages, destruction of farmlands and aquatic life, environmental degradation and kidnap of oil workers for ransom or to draw home their demands support the above assertion. Invariably, since these conditions are cumulative, they will operate in making the threshold higher and difficult to meet in bringing the militants activities under non international armed conflicts with the consequential protection accorded under IHL. Indeed, a minimum threshold of intensity is also required to distinguish non – international armed conflicts under both Common Article 3 of the Four Geneva Conventions 1949 and Article 1(2) of Additional Protocol II of 197728from lesser violence. Article 1(2) of Protocol II expressly excludes „situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence and other acts of a similar nature‟. The same exclusion is understood to apply when interpreting Common Article 3 of the Geneva Conventions.29 Thus terrorists acts and other armed conflicts which are isolated, sporadic, low level or in the nature of ordinary crime and which do not provoke intense and sustained military responses by the victim state will not cross the threshold of a non – international armed conflict. The central question is whether there exists sufficiently intense armed violence between an organized armed group and a state or another armed group30. Can the conflict in the Niger Delta region between the militants and government forces mobilized to counter the militants be said to be intense? This query is pertinent because for the violence to be considered as intense, it must be of extreme force degree or strength. Accepted definition of armed conflict was that given in the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case “….armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state31when applying that part of the definition relating to non – international armed 281977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non – International Armed Conflicts, adopted 8 June1977, 1125 UNTS 609 (entered into force 7 December 1978 (Protocol II)) 29ICRC commentary on Protocol II(1978) Art 1(4), [4473] 30Prosecutor v Tadic (International Appeal on Jurisdiction) (ICTY, Case No IT – 94 – 1, 2 October 1995), [70], Prosecutor v Limaj et al (ICTY, Case No IT - 03 – 66 – T, 30 November 2005), [85] 31 Para 70 supra, emphasis added Page | 153 AJLHR 3 (2) 2019 conflicts in its first two cases, the Tadic Trial Chamber at ICTY and the Akayesu32 Trial Chamber at International Criminal Tribunal for Rwanda (ICTR) both interpreted the definition to consist of two criteria namely protractedness of the conflict and the organization of the parties to the conflict thereby making an armed conflict distinguishable from banditry, unorganized, sporadic and short-lived insurrection, attacks or terrorists activities. The word “protracted” as contained in the definition of non – international armed conflict above was held in Celebici case33 to refer more to the intensity than to the duration. The American Commission on Human Rights considered a 30 hour battle a Common Article 3 conflict34. There is a lacuna created by Common Article 3 of the Geneva Conventions which laid down minimum humanitarian standards that should apply in the case of “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” by not providing guidance as to what the threshold of non – international armed conflicts should be. This led the ICRC to provide a list of “convenient criteria” in its commentary on the Geneva Conventions to guide the application of Common Article 3. These convenient Criteria were rejected by the ICTY as being too stringent with regard to organizational requirement when it considered whether or not the Kosovo army fulfilled the said requirement35. In Lima case36 the ICTY observed that the convenient criteria mentioned in the ICRC Commentary were not intended to be explicit requirement as a result of which it went ahead to assess the existence of a non – international armed conflict by reference to „objective indicative factors of intensity of the fighting and the organization of the armed group depending on the facts and circumstances of each case. Boskoski case37 discussed what constitutes the lower threshold of non – international armed conflicts and reviewed how the relevant elements of Common Article 3 recognized in Tadic38 case namely “organization of the armed group” and “intensity” are to be understood, in so doing, it identified the “factors” to be taken into account when assessing these elements and identified a number of „indicators thereof, these factors have been adopted by the International Criminal Court. The factors and indicators are: 1) The existence of a command structure; indicators: e.g. the existence of headquarters; a general staff or high command; internal regulations; the issuing of political statements or communiques; the use of spokespersons; identifiable ranks and positions. 2) Military (operational) capacity of the armed group; indicators: e.g. the ability to define a unified military strategy; to use military tactics; to carry out (large scale or coordinated) military operations; the control of certain territory, and territorial division into zones of responsibility; 3) Logistical capacity of the armed group; indicators: e.g. the existence of supply chains (to gain access to weapons and other military equipment); ability for troop movement; ability to recruit and train personnel; 4) The existence of an internal disciplinary system and the ability to implement IHL: indicators: e.g. the existence of disciplinary rules or mechanisms within the group; training; 32Prosecutor v Akayesu www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001.pdf 34 La Tablada Case www.cidh.oas.org/annualrep/97eng/Argentina11137.htmpara 184 35 Supra note 16 36 Ibid 37Ibid 38 Ibid Page | 154 OKOYE-ASOH, AKUNNA & NWINEE: Looking Beyond the Actors and unto the Cause: the Legal Status of Militants in the Niger Delta Region of Nigeria 5) The armed group‟s ability to speak with one voice; indicators: capacity to act on behalf of its members in political negotiations; to conclude cease fire agreements. Applying the above five indicators one would notice that the Niger Delta militants do meet most of the factors as opposed to the case with the Free Syrian Army. Despite the obvious fractious and divided nature of the relationship between the FSA and the rebels affiliated to it with respect to the rebels not receiving orders from FSA leadership and acts of gross violations of IHL rules for instance the summary executions some caught in camera as was widely reported in both electronic and print media, though these delayed the conflict from being termed non international armed conflict nonetheless, it was later recognized as such. The “ability to implement IHL” does not mean that IHL necessarily needs to be respected by the concerned party at all times for the factor to be „fulfilled‟. Similar to the requirement set by article 1(1) of Additional Protocol II that refers to the ability to implement said protocol, “the ability to implement IHL” is something entirely different from actually fighting in accordance with IHL. The ICRC commentary describes this condition of Additional Protocol II as “corresponding with actual circumstances in which the parties may reasonably be expected to apply the rules developed in the Protocol, since they have the minimum infrastructure required therefore.” The ICTY explained about this factor that: Where members of armed groups engage in acts that are prohibited under international humanitarian law, […] they are liable to prosecution and punishment. However, so long as the armed group possesses the organizational ability to comply with the obligations of international humanitarian law, even a pattern of such type of violations would not necessarily suggest that the party did not possess the level of organization required to be a party to an armed conflict39. The above five factors are not determinative of organizational criterion and the indicators merely serve to indicate, consequently, not all the five factors need to be fulfilled. Lack of internal disciplinary system or the ability to speak with one voice would not mean that organizational criterion for the existence of armed conflict is not met. Ideally this was the case with FSA despite the evidence of lack of internal disciplinary system, the ICRC went ahead to declare the conflict non –international armed conflict. There is strictly no hard and fast rule about the criteria as the appearance of the existence of some of these criteria may suffice. This is the case of the Niger-Delta militants. Non – international conflicts involving terrorist and armed groups are less likely to arise under Protocol II given that it additionally requires territorial control by the group. From the foregoing, it may not be easily determined essentially, what must be of considerable weight is the cause of the struggle which cannot be ignored. The persuasive position which materially is overwhelming is whether the cause pursued is just in the context of the right to self-determination, the right to environment and the existence of community right. Generally, in IHL, insurgents or militants of this nature are classified as Non – State actors. This term according to Marce,40refers originally to organized armed groups participating in Non – international armed conflict but today, they include unorganized armed groups taking part in armed conflict. In 39Boskski supra note14 40O Marce, Non State Actors and International Humanitarian Law: Organised Armed Groups: A challenge for the 21st Century (Milano: Franco Angeli; 2010) P. 25 Page | 155 AJLHR 3 (2) 2019 Nigeria, there are other non-state actors41which arose on several grounds ranging from marginalization, religion and the one under discussion, resource control. Does IHL regulate their activities? In the case of Prosecutor v. Sam Hinsu-Mosma42 the Appeal Chamber of Sierra Leone Special Court held that “it is well settled that all parties to an armed conflict, whether states or non-state actors are bound by IHL”. If by the interpretation of the court, all engaged in armed conflict are bound by IHL, no contrary argument can reasonably deny them legal status that compels their recognition as combatants. Moreso, non- compliance with the norms of IHL does not per se confer nor deny status. 5. Possible Framework for Responsibility of Niger-Delta Militants under IHL IHL cannot hold responsible those she does not recognize as subjects of international law, for once they take up arms and sustain engagement, they become subjects of international law, since that act is a denial of allegiance to the State. The Provisions of Common Article 3 This article which operates in situations of non- international armed conflict makes provisions for the protection of persons who no longer take park in hostilities including members of the armed forces who have laid down their arms and those placed „hors de combat‟ by sickness, wounds, detention or any other cause by prohibiting the following acts with respect to those persons mentioned herein. They include: a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) Taking of hostages; and c) Outrages upon personal dignity in particular, humiliating and degrading treatment. It is worthy of note that the provisions of Common Article 3 relate to parties to a conflict making the provision binding on all non-state actors though the extent to which it binds non-state actors is debatable43 and the precise means these non-state actors are bound by IHL is controversial44. However, it should be noted that Non-State actors are bound by Customary International Law and Common Article 345. Common Article 3 prohibits violence to life and person, taking of hostages, etc. On this premise, it can be argued that the militants in the Niger-Delta region of Nigeria who kidnap oil workers, attack oil pipelines and other installations thereby leading to the loss of lives may be in violation of the provisions of Common Article 3 which has attained the status of Customary International law. However, this violation if not consistent, systematic and widespread may not meaningfully sustain wholesome condemnation by the international community. Additional Protocol I 41 Boko haram insurgents and Biafran agitators 42 Case Mo ScSc – 2004 14 AR 72(E) 43It states that „in the case of armed conflict not of an international character…….. each party to the conflict……..‟„T. U. Akpoghome,„Responsibility of Non-state Actors to international Humanitarian Law in Northern Nigeria (2013) (Vol.1) BIU Law Series P. 91 44D. Bethlehem, „The Methodological Framework of the study‟. In William Shusst, E and Brenda S(eds) Perspectives of the KRC Studyon Customary International Humanitarian Law (Cambridge University Press; Cambridge 2007) 8. 45Prosecutor v Morns Kallon and BrimaBiodyKamara, ScSc – 2004 – 15 AR 72. (E) andScSc 2004 10 AR 72 (ce) Decision on challenge to jurisdiction, Lome Accord Amnesty Appeal Chamber 13, March 2004, Pres 4547. In this case, the court declared that Common Article 3 is binding on states and insurgents alike. If Common Article 3 must bind insurgents (militants), it is a clear admission that they are subjects of international Law Page | 156 OKOYE-ASOH, AKUNNA & NWINEE: Looking Beyond the Actors and unto the Cause: the Legal Status of Militants in the Niger Delta Region of Nigeria The agitations in the Niger-Delta Region of Nigeria have led to certain actions that have had adverse effects on the environment. Oil pipelines and some other oil installations have been the major targets of these militants, thereby leading to the pollution of the environment, farm lands are affected, water is polluted and even the air is no longer as pure as it used to be. This section of the paper examines the legal implications. Two wrongs, they say cannot make a right, but recall that the oil multinationals the agents of the Nigerian State pay little or no attention to the environment they operate which of course is one of the primary reasons for the agitations. Article 35(3) and 55(1) of Additional Protocol I prohibit acts and methods of warfare that ultimately cause damage to the environment. Article 35(3) provides that “it is prohibited to employ methods or means of warfare which are intended, or may be expected to cause widespread, long – term and severe damage to the natural environment.” Furthermore, Article 55(1) states that care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. Article 55(1) acknowledges the state of warfare, meaning that those engaged therein cannot but be recognized as combatants, bearing that legal status. It is important to note that what constitutes “widespread, long term and severe damage” was not provided for but the use of “and” to link the three adjectives qualifying the damage to the natural environment means that they are cumulative conditions, all of which must separately be met in order for there to be a breach of the relevant provision.46This means that the impact of such activities of the militants must be such that it has caused environmental damage that is widespread, long-term and severe for them to be held liable for war crimes. This constitutive description cannot readily apply to the militants Article 8(2) (b) (iv) of the International Criminal Court Statute considers certain attack on the environment as grave breaches, and therefore attracting individual criminal responsibility. Thus, wartime environmental damage has been criminalized. As stated above, the precise meaning of the separate elements „widespread‟ long-term and „severe‟ was not mentioned in the Statute and so, imputing culpability becomes difficult47. 12Moreso, wide spread, long-term and severe damage formula sets an extremely high threshold for actionable environmental damage under IHL48. Human Rights Law While it may be settled by law that International humanitarian law is applicable to armed non-state actors like the militants in Niger-Delta, it is controversial whether human rights law applies.49 Indeed, several authors insist that only states have human rights obligations as opposed to IHL which also binds non state actors.50 This is so because, as argued, they are unlikely to have the capacity to uphold certain rights such as the duty to ensure a regularly constituted court, the right to due process and to have their 46J. Hyath, ‟Law-Making at the Intersection of International Environmental Law, Humanitarian and Criminal law. The Issue of Damage to the Environment in International Armed Conflict‟ (2010) (Vol. 92 No. 879) International Committee of the Red Cross P. 623. 47Recourse is had to certain official and unofficial commentaries regarding the meaning of these literatures as they were used in the convention cd. Understanding widespread and can an area on the scale of several hundred square kilometres, for long-term, a period of months, or approximation of reason and severe damage as „involving serious or significant disruption or harm to human life, natural and economic resources or other 48Ibid 49C. Andrew, „The Rights and Responsibility of Armed Non-state Actors. The legal landscape & issue, surrounding engagement‟ (2010) Geneva Academy of International Humanitarian Law http://www.ssin.com/abstract=15696 36 Accessed in. May 2012 50Ibid Page | 157 AJLHR 3 (2) 2019 own legal system, courts etc51. However, this is the former legal position; the new legal position is that international human rights law binds non-state actors52who are individually criminally responsible for any crime committed among the grave breaches of the Rome Statute and therefore liable to prosecution. 6. General Framework for Enforcement As noted above, these militants are fighting a “just cause” but in the course of their efforts, they should be encouraged to respect human rights. Generally, Enforcement measures of IHL can be diplomatic or judicial.53 Diplomatic measures include condemnation by states or United Nations organs, international pressure on the violating entity to stop the violation and economic sanctions against the violating entity.54The violating entity can also be labeled by the international community as a „terrorist organization‟55. This would enable the world community to offer assistance to a state party. This latter measure, due to the nature of the activities and organizational structure of the militants would be better used than others aforementioned. 7. Conclusion It is settled principle of IHL that parties to an armed conflict must ensure that they adhere to all the rules governing armed conflict irrespective of the cause of the conflict. IHL is not concerned about the reason for the conflict, rather, it is concerned with the protection of those who do not or are no longer participating in armed conflict. To deny the militants a legal nomenclature merely begs the question and denies real substance to the resolution of militancy in the Niger-delta. Since it cannot be denied that they are pursuing a just cause, it is only delusionary to classify them as mere criminals that can be subject to criminal sanctions. Law must evolve to respect as subjects of international Law, and in this circumstance as insurgents and rightly engage them as such. Denying the reality that there is an armed conflict will only hasten the decay that the hostility procures. 51L. Moir, The law of internal Armed Conflicts (Cambridge, University Press, 2007) 50-56. 52D. Fleck, „The Law of Non – International Armed Conflicts‟ in Fleck D(ed). The Handbook of Humanitarian law in Armed Conflicts, 2nd ed: (Oxford University Press, 2007) pp 605-633. 53Akpoghome, Supra note 43 54Ibid Page | 158 AJLHR 3 (2) 2019 COMPETITION ISSUES IN MERGERS AND ACQUISITIONS IN NIGERIA AND COMPETITION AND CONSUMER PROTECTION ACT 2019* Abstract Competition is very important ingredient needed for any sector or industry to do well. When there are little or no competitions in any industry, an important ingredient for keeping the sector growing in innovation, and improving in services have been removed. That is why one of the factors that needs to be considered by the regulatory body in charge of Merger and Acquisition, before approving any Merger and Acquisition, is how the Merger and Acquisition affects competition in that sector. Mergers and Acquisition no doubt have become one of the most preferred routes among several external methods of achieving growth in a company.1 Mergers and acquisition is a corporate strategy that could be used to penetrate into new markets, gain management expertise and knowledge2. However, whereas Mergers and acquisition could lead to the emergence of more formidable companies, it has the tendency to kill competition. Merger and Acquisition could be used as an instrument of eliminating competition, and creating monopoly in a sector. If any Merger and Acquisition will erode or remove the much needed competitiveness of that sector significantly, the Competition and Consumer Protection Commission should not approve of the Merger and Acquisition. The matter of Merger and Acquisition has become an issue in the front burner in Nigeria following the massive mergers that characterized the bank consolidation of 2004 and 2005, which brought the matter of mergers and acquisition to limelight in Nigeria. This paper will consider the meaning and importance of Merger and Acquisition, the competition issues in Merger and Acquisition, the role competition plays in bringing a balance in Merger and Acquisition, the exceptions to the law on competition and the new Federal Competition and Consumer Protection Act, 2019 which was passed by President Muhammadu Buhari in 5th February, 2019. Keywords: Merger and Acquisition, Competition, monopoly, market dominance, innovation. 1. Introduction With the passing into law of the new Federal Competition and Consumer Protection Act (FCCPA), 2019 the Competition and Consumer Protection Commission (hereinafter referred to as ‘the commission’), is on the body that now handles competition issues, instead of the Securities and Exchange Commission(SEC), which used to handle and approve Mergers and Acquisitions. The Competition and Consumer Protection Commission need to as a matter of utmost importance consider how any proposed Merger and Acquisition affects competition in any industry before approving any merger proposal. If the proposed merger will significantly affect or erode competition the Commission should not approve of such Merger and Acquisition. Nigeria has never had a competition law until the competition law was passed earlier this year, the law is to among other things prevent anti-competition practices and monopolies with regard to mergers in Nigeria, this work will look at the prospects of the New Federal Competition and Consumer Protection Act (FCCPA), 2019. *Onyinye O. C. CHUKWUOCHA, LLB, LLM, BL, PhD Candidate, Faculty of Law, Imo State University. Phone: 08038735341. Email: [email protected] 1Nnamdi Dimgba, ‘Law And Practice Of Mergers And Acquisition In Nigeria’ Deloitte M&A Trends Report 2015, http://ssrn.com/abstract=2652362 2Chris Wigwe, ‘Mergers and Acquisitions in The Nigerian Banking Industry: a Legal Perspective’, https://www.researchgate.net/publication/274374933 Page | 159 CHUKWUOCHA: Competition Issues in Mergers and Acquisitions in Nigeria and Competition and Consumer Protection Act 2019 2. Meaning of Mergers and Acquisitions Merger can also be defined as a transaction where one entity is combined with another so that one initial entity loses its distinct identity, while an acquisition is a transaction where one firm purchases a controlling stake (and/or the whole) of another firm. The terms mergers and acquisition shall be used interchangeably to refer to transactions involving the combination of at least two independent firms to form one.3The Securities and Exchange Rules and Regulations (‘SECRR’) defined Acquisition where a person or group of persons buys most (if not all) of a company’s ownership stake in order to assume control of the target company.4 While, Takeover is the acquisition by one company of sufficient shares in another company to give the acquiring company control over that other company. This means that takeover is another word or synonym for acquisition.Merger according to the new Federal Competition and Consumer Protection Act, 2019 has been defined as when one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking.5Section 92(1) of the Federal Competition and Consumer Protection Act further explained various ways the merger contemplated in paragraph (a) of subsection (1) may be achieved which include through -(i) the purchase or lease of the shares, an interest or assets of the other undertaking in question,(ii) the amalgamation or other combination with the other undertaking in question, or(iii) a joint venture. Merger is a transaction involving two or more companies in which shares are exchanged but in which only one company survives. Mergers usually occur between firms of somewhat similar size and are usually friendly. The resulting firm is likely to have a name derived from its composite firms, while an acquisition is the purchase of a company that is completely absorbed as an operating subsidiary or division of the acquiring company.6Merger can be seen as the combination or amalgamation of two or more separate companies into a single company where one survives and the others lose their corporate existence while acquisitions can be seen as the taking over of the controlling shareholding interest of another company. Usually, at the end of the process, there exist two separate entities or companies. The target company becomes a division or a subsidiary of the acquiring company.7Merger may be defined as an arrangement whereby the assets of two companies8 become vested in, or come under the control of, one company (which may or may not be one of the original two companies), which has as its shareholders all, or substantially all, the shareholders of one or both of the merging companies, who exchange their shares (either voluntarily or as a result of legal operation) for shares in the other or a third company.9 This leads to the amalgamation of the undertakings or part of the undertakings of two 3J. Ade Afolabi, ‘Mergers and Acquisitions in the Nigerian Banking System: Issues and Challenges’, Director, Research, Policy and International relations department Nigeria Deposit Insurance Corporation presented at the workshop for business editors and finance correspondents association of Nigeria at Manpower Development Institute, Dutse, Jigawa State On November 28 – 29, 2011. 4 Rule 433 SECRR, 2013. 5Section 91(1) of the Federal Competition and Consumer Protection Act, 2019. 6G. Umar, ‘The impact of the banking industry recapitalization on employment in Nigerian banks’, European Journal of Social Sciences, Vol.11, No. 3, 2009. 7J. Okpanachi, ‘Comparative analysis of the impact of mergers and acquisitions on financial efficiency of banks in Nigeria’(Journal of Accounting and Taxation, vol. 3(1), may 2011). 8Although a merger may involve more than two companies. 9K.R Sampath, ‘Law and Procedure on Corporate Restructure leading to Mergers/Amalgamations, Takeovers, Joint Ventures LLPs and Corporate Restructure’ (2010), p 1074 Page | 160 AJLHR 3 (2) 2019 or more independent and autonomous entities under the identity of one of the combined entities or, in other cases, under the identity of a new corporate entity.10 Acquisition may be defined as a transaction or a series of transactions where an entity acquires control over assets, either directly or indirectly.11 However, unlike in the case of mergers, the companies that are parties to the acquisition may not necessarily combine their respective businesses and operations, this is ultimately a question of the transaction structure adopted and may remain independent separate legal entities but there may be a change in the control of the subject entity. An acquisition may generally be achieved through share sale and asset sale or a business sale.12 3. The Difference between a Merger and an Acquisition13 Although Merger and Acquisition are used together the terms merger and acquisition mean slightly different things. However, in practical terms, is not more than alternative methods of achieving business combinations. A merger occurs when two separate entities (usually of comparable size) combine forces to create a new, joint organization in which theoretically both are equal partners. An acquisition refers to the purchase of one entity by another (usually, a smaller firm by a larger one). A new company does not emerge from an acquisition; rather, the acquired company, or target firm, is often consumed and ceases to exist, and its assets become part of the acquiring company. Acquisitions sometimes called takeovers generally carry a more negative connotation than mergers, especially if the target firm shows resistance to being bought. For this reason, many acquiring companies refer to an acquisition as a merger even when technically it is not. A Merger requires two companies to consolidate into a new entity with a new ownership and management structure. An acquisition takes place when one company takes over all of the operational management decisions of another. The more common interpretive distinction rests on whether the transaction is friendly (merger) or hostile(acquisition).Contemporary corporate restructurings are usually referred to as merger and acquisition (M&A) transactions rather than simply a merger or acquisition. The practical differences between the two terms are slowly being eroded by the new definition of M&A deals. In other words, the real difference lies in how the purchase is communicated to and received by the target company's board of directors, employees and shareholders. The public relations backlash for hostile takeovers can be damaging to the acquiring company. The victims of hostile acquisitions are often forced to announce a merger to preserve the reputation of the acquiring entity. Some of the mergers are nothing more than acquisition as demonstrated by the acquisition of Diamond Bank by Access Bank which have the character of acquisition although widely referred to as merger. 4. Types of Mergers Horizontal Merger: A merger is horizontal if it involves the combination of two or more companies offering the same products or services or in the same line of business. It usually involves two or more companies operating in the same kind of business. For example the merger between Agip Nigeria Plc 10A good example of the former is the merger of Standard Trust Bank and UBA after which Standard Trust Bank lost its identity to UBA, while the merger of nine banks to form Unity Bank serves as an illustration of the latter 11Tom Speechley, ‘Acquisition Finance’ (2nd edition, Tottel Publishing Ltd), 2008. 12Stilton, A., (2006), Sale of Shares and Businesses, Sweet & Maxwell, London pages 1 – 9. 13‘Mergers and Acquisition’, https://www.investopedia.com/terms/m/mergersandacquisitions.asp Page | 161 CHUKWUOCHA: Competition Issues in Mergers and Acquisitions in Nigeria and Competition and Consumer Protection Act 2019 and UnipetrolPlc to form Oando Plc. Mergers today are majorly horizontal14, horizontal merger among other types of merger has the highest tendency of eliminating competition and facilitating the emergence of an undisputable market leader. A good example of would be the merger between Dangote Cement PLC and Benue Cement Limited in 2009. Vertical: It usually between two companies in complimentary businesses. This occurs where two or more companies engaged in the same market, but operating at different levels of the market, merge. Here, the object is usually to ensure a supply or an outlet for products or services. Such merger could improve efficiency by increasing flow of production and reducing costs. Competition issues are less obvious in vertical merger, but that is not to say that vertical mergers are entirely free from competition issues. For example if Nigerian Breweries should merge with a major distributor of beer drink in Nigeria, it can expand vertically from the production to the marketing level. It could lead to foreclosing distributional outlets having merged with the major distributor. Conglomerate Mergers: Conglomerate mergers involve companies engaged in unrelated kinds of business, in fact, in a pure conglomerate merger, there are no important common factors between the merged entities in terms of production, marketing, research and development or technology. Conglomerate cushion the impact of risks associated with business because it encourages diversifying into other areas, and merged company’s buying power can be used to induce others to buy its other varying products or services. 5. Legal and Regulatory Framework The new Federal Competition and Consumer Protection Act, 2019 has totally changed the regulatory and legal framework for mergers and acquisitions in Nigeria. Previously, mergers and Acquisition were regulated by the Investment and Securities Act of 2007 (‘ISA’), the Securities and Exchange Rules and Regulations (‘SECRR’) and the Companies and Allied Matters Act (‘CAMA’), but with the emergence of theFederal Competition and Consumer Protection Act, 2019, that has now changed. The Federal Competition and Consumer Protection Act, 2019 is now the law regulating Mergers and Acquisitions in Nigeria. The provision of any other enactment, including the Investment and Securities Act shall now be read with such modifications as a necessary to bring them in conformity with the provisions of the new the Federal Competition and Consumer Protection Act, 2019.15 The Securities and Exchange Rules and Regulations (‘SECRR’) still regulate the guidelines for notification, application and approval of merger. However, Sections 118, 119, 120, 121, 122, 123, 124, 125, 126,127 and 128 of the Investments and Securities Act 2004 were specifically repealed.16The regulatory body for Mergers and Acquisition has also changed from The Securities and Exchange Commission (SEC) to the Competition and Consumer Protection Commission. However, there are still sector-specific regulators which are saddled with the responsibility of reviewing and approving Merger and Acquisition transactions within their respective sectors in addition to the general regulation by the Competition and Consumer Protection Commission. There are also sector or industry specific laws applicable to mergers and acquisitions in various sectors, the Central Bank of Nigeria (CBN) Act and Banks and other Financial Institutions Act (BOFIA) regulates the banking industry, the Nigerian Telecommunications Act 2003, regulates the 14.Weinberg M A, Blank M V, Greystoke A L, Takeovers and Mergers(4th edition, Sweet & Maxwell 1979) 15Section 164 of the Federal Competition and Consumer Protection Act, 2019. 16Section 165(1) of the Federal Competition and Consumer Protection Act, 2019. Page | 162 AJLHR 3 (2) 2019 telecommunications industry, the Insurance Act 2003 regulates the insurance industry, the Electric Power Sector Reform Act 2005 regulates the electric power sector. The Federal Competition and Consumer Protection Act 2019 is now charged with the statutory responsibility of considering the desirability or otherwise of a merger. This responsibility is exercised with clearly defined criteria and factors to be taken into consideration in arriving at a decision. The legally enabled body or court that resolves disputes or handle matters arising out of Merger and Acquisition in Nigeria has also changed from the Federal High Court, to the Competition and Consumer Protection Tribunal.17 Resolutions, sanctions, and related corporate documents are filed with the Corporate Affairs Commission (CAC). Parties will also need to deregister dissolved companies at the CAC. The Nigerian Stock Exchange (NSE) is relevant where quoted companies are involved because they are required to meet NSE’s Listing Rules. If the merging companies or one of the companies is a bank, the Central Bank of Nigeria (CBN) becomes interested as well. The consent of certain other regulatory bodies are required for merging companies who are in regulated businesses. 6. Reasons for Mergers Synergy There are many reasons why companies merge, however, the commonest reason is for synergy. The synergy created by merger enhances cost savings. Synergy is the interaction or cooperation of two or more companies to produce a combined effect greater than the sum of the two companies operating independently.18 The truth is that larger entities would usually have access to a wider and cheaper pool of funds, as it may be considered to be more credit worthy, because it owns a vast pool of assets. Synergies could take various forms; it could even be in form of managerial synergies where a high- performing management team merges with a poor-performing one. Such a merger could produce one management team with better expertise and experience. For example, the merger between Dangote Cement Plc and Benue Cement Plc, resulted in greater operational integration, and more effective supply and distribution chain. Big companies have been observed to be less vulnerable to external shocks. 19 Geographical/Product Diversification Diversification will result in multiple income streams for the merging companies. It will reduce vulnerability to single market uncertainties especially in the case of a cross-border merger and product uncertainty in the case of a conglomerate or even in a vertical merger. Cross-Selling This is a benefit experienced more by vertically merged entities and conglomerates as the merging companies can sell their varying products to their respective customers. Greater benefit from cross- selling results in cross border mergers and acquisition transactions where geographical limitations for the varying products and services are overcome. 17Section 39(1) of the Federal Competition and Consumer Protection Act, 2019. 18E. J. Anthony, E. J., ‘ An evaluation of growth and merger and acquisition as strategic growth options in the Nigerian banking sector’(2008) A dissertation presented in part of consideration for the degree of MA in corporate strategy and governance, University of Nottingham, United Kingdom. 19 ibid Page | 163 CHUKWUOCHA: Competition Issues in Mergers and Acquisitions in Nigeria and Competition and Consumer Protection Act 2019 Tax Advantages A company may be merged with another company, in order to take advantage of the more favourable tax position the other company enjoy. A profitable entity may also acquire a loss leading company so as to take advantage of a reduction in tax liability. Note however that such companies don’t publicly state this as the reason for their merger. It is usually a secret reason for merger. Efficiency Mergers and Acquisition are not carried out for the fond on it.The Mergers carried out during Soludo’s time were driven by the need to reform the banking system to develop the required flexibility to support the economic development of the nation by efficiently performing its financial intermediation role.20 It was done to give banks a strong capital base, that has the ability to absolve losses arising from non- performing liabilities. It was a deliberate policy response to correct perceived or impending banking sector crises and subsequent failures. Distress Resolution Merger & Acquisition transactions could also serve as an efficient way of resolving problems of financial distress. Companies in financial difficulty could opt for merger and acquisition as an efficient alternative to liquidation.21There are a various other reasons why companies opt for mergers and acquisitions. These reasons include; to enter a more profitable market, to diversify or expand its products, to avoid the expenses of starting up in a new business, field or industry, to be able to secure new or additional financing, to acquire new technologies to enhance its competiveness, to augment their working capital, and meet critical obligations of the company, to reduce the operation costs,22to achieve cost efficiency through economies of scale, and to diversify and expand the range of business activities for improved performance. 7. Provision for Notification and Approval for Merger The Federal Competition and Consumer Protection Act 2019 provides for two categories of merger, ‘small merger’ and ‘large merger’. For Large mergers no proposed merger shall be implemented unless it has first been notified to and approved by the Commission.23 A party to a small merger is not required to notify the Commission of a small Merger unless the Commission requires it to do so.24 A party may implement the merger without approval unless the Commission requires that it should be notified. The Commission may require parties to a small merger to notify it within six (6) months after the merger has commenced if, in the same manner a large Merger will do, if in the opinion of the Commission, the merger may substantially prevent or lessen competition25. Where notification is required for a small merger, it is in the same manner as large merger will do. A party to a small merger 20ChukwumaSoludo, ‘Consolidating the Nigerian banking industry to meet the development challenges of the 21st century’, CBN governor’s address to the bankers committee held on July 6, 2004. 21J. Ade Afolabi, ‘Mergers and Acquisitions in the Nigerian Banking System: Issues and Challenges’, Director, Research, Policy and International relations department Nigeria Deposit Insurance Corporation presented at the workshop for business editors and finance correspondents association of Nigeria at Manpower Development Institute, Dutse, Jigawa State On November 28 – 29, 2011. 22O. I. Imala, ‘Challenges of banking sector reforms and bank consolidation in Nigeria’, (CBN bullion, Vol.29 No.2, April- June 2005). 23 S. 93(1) of the Federal Competition and Consumer Protection Act 2019. 24 S. 95(1) of the Federal Competition and Consumer Protection Act 2019. 25 S. 95(3) of the Federal Competition and Consumer Protection Act 2019. Page | 164 AJLHR 3 (2) 2019 may nevertheless voluntarily notify the Commission at the time of the merger. The Commission after considering a merger may either approve the merger, or approve it subject to some conditions or prohibit the merger.26 Where a party to a merger is required to notify the commission of a merger shall take no further steps to implement the merger until the merger has been approved or conditionally approved. The key major difference between the small and large merger, is that apart from the difference in size, the second difference is the obligation imposed on the merging entities whether to simply notify, or obtain the prior approval. However, it is my view that the larger the size of a merger, the greater its likelihood to substantially affect competition. A bigger company has bigger market power, more products and therefore more influence. This reason will not be far from the reason why notification and approval is a condition for every large merger, but is conditional for a small merger. A small merger may not carry enough influence for its merger to significantly affect competition, in some instance; the market may not even notice such small merger, not to talk of feeling its impact. However, there are always exceptions to every rule. Some company though small, are what people describe as ‘small but mighty’, their influence in the market are far greater than many big companies, such mergers such follow the process of seeking approval like large mergers, if the Commission has reason to suspect that their merger, though small, is likely to significantly affect completion. 8. Competition Considerations for Mergers Section 94(1) of the Federal Competition and Consumer Protection Act (FCCPA), 2019 sets out the factors the Competition and Consumer Protection Commission should take into consideration when deciding whether to approve a merger application or not. The Competition and Consumer Protection Commission’s approval must be obtained before any merger, acquisition or business combination between or among companies can be effected. The Commission reviews the proposed mergers in light of competition issues. It is the Commission that determines, whether or not, a merger is likely to substantially prevent or lessen competition. Note that the impact of the proposed merger on competition needs to be substantial. If the merger affects competition, but is not substantial, the merger will still be approved. The Federal Competition and Consumer Protection Act (FCCPA), 2019 listed the criteria for determining whether a merger will substantially prevent or lessen competition. When determining whether or not a merger is likely to substantially prevent or lessen competition, the Commission is required to look at the strength of competition in the relevant market, and the probability that the company, after the merger, will behave competitively or co-operatively, taking into account any factor that is relevant to competition in that market.27The Commission in assessing what constitutes competition in a market the Commission shall put the following factors into consideration28: (a) The actual and potential level of import competition in the market; (b) The ease of entry into the market, including tariff and regulatory barriers; (c) The level and trends of concentration, and history of collusion, in the market; (d) The degree of countervailing power in the market; (e) The dynamic characteristics of the market, including growth, innovation, and product differentiation; (f) The nature and extent of vertical integration in the market; (g) Whether the business or part of the business of a party to the merger or proposed merger has failed or is 26 S. 95(6)(b) of the Federal Competition and Consumer Protection Act 2019. 27 S. 94(2) of the Federal Competition and Consumer Protection Act 2019. 28ibid Page | 165 CHUKWUOCHA: Competition Issues in Mergers and Acquisitions in Nigeria and Competition and Consumer Protection Act 2019 likely to fail; and (h) Whether the merger will result in the removal of an effective competitor. The Competition and Consumer Protection Commission will also consider whether the merger can or cannot be justified on public interest grounds29. When determining whether a merger can or cannot be justified on public interest grounds, the Commission is required to consider the effect that the merger will have on a number of issues namely,30(a) A particular industrial sector or region; (b) Employment; (c) The ability of small businesses to become competitive; and (d) The ability of national industries to compete in international markets. The Commission will also determine whether all shareholders were fairly, equitably and similarly treated and given sufficient information regarding the merger. Merger and acquisition despite its numerous advantages is something to be approved with care. This is because mergers and acquisition has the tendency of creating a monopoly in a sector or industry. Mergers has the tendency to create a oligopolistic31 structure in an industry where only a few companies/ institutions dominate and dictate quality and prices of products and services offered to consumers. It is instructive to note that when companies merge, the number of players will reduce and hence, the intensity of competition. This might have implications for the prices, products and quality of services offered to buyers. For the purpose of this Act, an undertaking is considered to be in a dominant position if it is able to act without taking account of the reaction of its customers, consumers or competitors.32A dominant position in a relevant market exists where a company enjoys a position of economic strength enabling it to prevent effective competition from being maintained on the relevant market, and having the power to behave to an appreciable extent independently of its competitors, customers and ultimately consumers.33 A market is regarded as relevant if it is in a geographical location that competition is likely to be restrained or if its goods or services are regarded as substitutes, or, are among suppliers to which consumers may turn to in the short term, or if the abuse of dominance leads to a significant increase in price or to other detrimental effect upon the consumer. The Federal competition and Consumer Protection Act prohibits abuse of Market Dominance and anti-competitive practices, which are characterized by charging excessive price to the detriment of consumers; refusing to give a competitor access to an essential facility; requiring or inducing a supplier or customer not to deal with a competitor; refusing to supply scarce goods to a competitor when supplying those goods is economically feasible; selling goods or services on condition that the buyer purchases separate goods or services unrelated to the object of a contract, or forcing a buyer to accept a condition unrelated to object of a contract; selling goods or services below their marginal or average cost, or buying up a scarce supply of intermediate goods or resources required by a competitor. For the purpose of assessing market dominance, account shall be taken in particular of the market share of the undertaking or undertakings concerned in the relevant market; its or their financial power; its or 29 S. 94(4) of the Federal Competition and Consumer Protection Act 2019 30 ibid 31Oligopolistic is a market condition that exists when there are few sellers or producers, who as a result can greatly influence price and other market factors. 32 S. 70(1) Federal Competition and Consumer Protection Act 2019. 33S. 70(2) Federal Competition and Consumer Protection Act 2019. Page | 166 AJLHR 3 (2) 2019 their access to supplies or markets; its or their links with other undertakings; legal or factual barriers to market entry by other undertakings; actual or potential competition by undertakings established within or outside the scope of application of this Act; its or their ability to shift supply or demand to other goods or services; and the ability of the opposite market side to resort to other undertakings. An company may be considered as abusing its dominant position if the Commission is satisfied that its activities have the effect of unreasonably lessening competition in a market, and impede the transfer or dissemination of technology. A monopoly situation may exist in relation to the production or distribution of goods or services of any description, or in relation to exports of goods or services of any description from Nigeria. The effect of the reduction in the level of competition, could lead to less need for innovation, less research and development spending and, which might adversely affect potentials for future growth and development leading to reduction in quality. Merger & Acquisition can easily result in a substantial increase in the market power or dominance of a company . The increased market power might be abused by the emerging entity, for instance it took the emergence of Globacom to reduce the price of sim card and call rate in Nigeria. Sim cards were initially only affordable by the rich when the market was dominated by MTN. Globacom when they came into the market introduced per second billing , which crashed the cost of sim card and call rate, that is the importance of competition. Where there are little or no competition the emerging company could raise costs to customers to unacceptable levels, because they now enjoy monopoly of a particular product, with little or no competitors. Mergers if not checked or properly controlled have the potential to advance monopolistic and oligopolistic tendencies of companies. This is common with horizontal mergers. A monopolistic merger creates a single firm producing a commodity for which there are no close substitutes. Such monopolistic company could easily raise prices arbitrarily when they want to increase profit. This is also true of Nitel, before 1999 when President Olusegun Obasanjo threw the door of investment in the telecommunication industry open to private investors. Telecommunication moved beyond landline to predominately GSM phones. In the days when Nitel enjoyed monopoly of the telecommunication industry Nigerians suffered a lot, for people to pay their telephone bills they will have to queue all day. Also, when people’s line are bad or faulty they will have to complain severally before it is fixed. The emergence of the GSM have given Nigerians alternative, in fact, I don’t think people still use Nitel lines. That is why competition is very important for the development of any industry. The fact that your competitors are improving their products and services, keeps you on your toes, it makes a company to keep looking for ways to improve their products and services in other to remain in the industry. 8. Exception to Competition Consideration in Merger There few situations where the Commission will still approve of a merger even though the merger is likely to substantially prevent or lessen competition. If the merger or proposed merger is likely to result in any technological efficiency or other pro-competitive gain or advantage, which will be greater than, what would likely have been the situation had the merger been prevented34. Also if the proposed merger if such that will off-set the effects of any prevention or lessening of competition, while allowing 34 S. 94(1)(b)(i) of the Federal Competition and Consumer Protection Act 2019. Page | 167 CHUKWUOCHA: Competition Issues in Mergers and Acquisitions in Nigeria and Competition and Consumer Protection Act 2019 consumers a fair share of the resulting benefit35. The merger therefore will be such that even though it will likely reduce competition it has greater benefits for the consumer in the long run, because of the innovation and technological advantage it is bringing into the industry. 9. Conclusion The Federal Competition and Consumer Protection Act, 2019 will hopefully change the face of competition as regards Mergers and Acquisition in Nigeria. It is the first competition law in Nigeria. The Federal Competition and Consumer Protection Act has a lot of innovations not contained in the Investments and Securities Act. It carefully defined what constitutes a monopoly and an abuse of market dominance power. It also established a body known as ‘the Competition and Consumer Protection Commission’, a body that is focused on regulating just competition and Consumer Protection issues, unlike Securities and Exchange Commission which has a lot of Securities matters to handle. It also established the Competition and Consumer Protection Tribunal to handle matters pertaining to anti- competition issues, abuse of market power and consumer protection matters will make the competition matters to be quickly handled unlike the Federal High Court that was like ‘jack-of-all-trade’, saddled with all manner of matters pertaining to companies. The law is quite new but has the potential to check anti-competition and monopolistic practices in Nigeria Mergers and Acquisition from the time it was assented by President Muhammadu Buhari in February, this year. The Competition and Consumer Protection Commission is yet to come up with its guidelines for its operations. The Securities and Exchange Commission (SEC) were given a few months to tidy up outstanding mergers that it has already commenced. The Competition and Consumer Protection Commission Tribunal is yet to be set up. Finally, the more serious issue is the matter of implementation of the law. However, since there is both a Commission and a Tribunal established specifically for competition matters, I am optimistic, that the new Federal Competition and Consumer Protection Act 2019 will not end up like other wonderful legislations in Nigeria that were never implemented. Merger and Acquisition as discussed in this paper is a very important tool companies could use to build synergy, increase efficiency, overcome financial challenges, and achieve cost efficiency through economies of scale. However, Mergers and Acquisitions needs to be properly regulated or handled because of its monopolistic or oligopolistic tendencies which invariably affects the prices and qualities of products and services of affected companies. Therefore, mergers should never be allowed to be used as an instrument for eliminating competition in any industry. Competition remains very important to keep any sector of industry innovative and competitive. 35 S. 94(3) of the Federal Competition and Consumer Protection Act 2019. Page | 168 AJLHR 3 (2) 2019 PROCEDURE FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS IN NIGERIAN COURTS: CHALLENGES AND PROSPECTS* Abstract National courts play a dominant role in the enforcement of human rights. Judicial enforcement of human rights will, therefore, be the central focus of this paper, and that includes the interpretative jurisdiction of the courts, the effect of judicial work environment on the enforcement of human rights and the procedural challenges militating against the enforcement of human rights in Nigerian courts. This paper also compared the Fundamental Rights (Enforcement procedure) rules 2009 to its predecessor; Fundamental Rights (Enforcement procedure) rules 1979 and highlighted the landmark departure from the Fundamental Rights (Enforcement procedure) rules 1979. The Fundamental Rights (Enforcement procedure) rules 2009 simplify and strengthen the Legal provision for human rights litigation in Nigeria. This paper examines this remarkable development and discourses a plan for action consistent with the imperative need to enhance the new system of human rights litigation in Nigeria. Keywords: Fundamental Rights, Enforcement, Procedure, Challenges, Prospects, Nigeria 1. Introduction Nigerian citizens are guaranteed certain definite political, civil, economic and social rights which governments have the duty and responsibility of protecting and enforcing. Human Rights that are enforceable are those rights, which are recognised by law as Fundamental Rights. These Fundamental Rights are embodied in Chapter IV of the Nigerian Constitution1 from Section 33 to 46, and the African Charter on Human and People Rights, which was ratified and enacted as a Municipal Law by the National Assembly on the 17th March 1983. The Charter became part of Nigerian Law by virtue of the African Charter on Human and Peoples Rights (Application and Enforcement) Act Cap 10 Laws of Federation 1990.In an effort to ensure that these rights can be enforced and to create easier access to courts, the constitution grants the Chief Justice of Nigeria powers to make rules for the practice and procedure in enforcing these rights in the High Courts.2The Rules guiding enforcement of fundamental rights is contained in the Fundamental Rights (Enforcement procedure) rules 2009 which came into effect on December 1st 2009. 2. Legal Provisions for Human Right Protection in Nigeria Legal provision for human right protection in Nigeria includes the constitutional provision of human rights, the statutory provision, and the domestication of regional and international human rights in Nigeria. Constitutional Provisions on Human Rights in Nigeria Human rights entrenchment in Nigeria made a debut in the independence constitution of 1960.The rights feature in chapter IV of the 1999 constitution of the federal republic of Nigeria. These rights are: right to Life,3 dignity,4 personal liberty,5 fair hearing,6 private and family life,7 freedom of thought, *Alex Cyril EKEKE, LLB, BL, LLM, LLD, Federal College of Education (Technical) Omoku Rivers State Nigeria. Phone: [email protected] 1[1999] As amended. 2[1999] Constitution of the federal republic of Nigeria Section 46(3). 3Ibid Section 33. 4Ibid Section 34. Page | 181 EKEKE: Procedure for the Enforcement of Fundamental Rights in Nigerian Courts: Challenges And Prospects conscience and religion,8 freedom of expression and the press,9 peaceful assembly and association,10 freedom of movement,11 freedom from discrimination,12 and the right to acquire and own immovable property anywhere in Nigeria.13 Statutory Provision on Human Rights in Nigeria Statutory provision of human rights in Nigeria refers to instruments enacted by the legislature at the various tiers of government.14 The Child Rights Act of 2003, fall under this category. It also includes the laws establishing, the National Human Rights Commission15 and the Legal Aid Council.16 Child Rights Act of 2003: This Act provides for the rights and responsibilities of a child in Nigeria and provides for a system of child Justice Administration, and the care and supervision of a child. Under sections 1-2 (Part I),17 the Child Right Act 2003 provides that the best interest of the child shall be of primary or paramount consideration in all actions to be undertaken whether by an individual, public or private body, institutions or service, court of law or administrative or legislative authority.18 Part II (Sections 3-20)19 of the Act provide for the rights and responsibilities of a child in Nigeria.20 Accordingly, it entrenches the following fundamental rights for the child, namely, the rights to survival and development, to a name, to freedom of association and peaceful assembly, to freedom of thought, conscience and religion, to private and family life, to freedom of movement, to freedom from discrimination, to dignity of the child, to leisure, recreation and cultural activities, to health and health care services, to parental care, protection and maintenance, to free, compulsory and universal primary education, as well as encouragement of the child to attend and complete secondary education.21 Human Rights Commission: Nigeria established the National Human Rights Commission (NHRC) in 1995, in line with the resolution of the General Assembly of the United Nations which enjoins all member States to establish Human Rights Institutions which aims to promoteand protect human rights. Its establishment is aimed at creating an enabling environment for extra-judicial recognition, promotion and protection and enforcement of human rights, treaty obligations and providing a forum for public enlightenment and dialogue on human rights issues thereby limiting controversy and 5Ibid Section 35. 6Ibid Section 36. 7Ibid Section 37. 8Ibid Section 38. 9Ibid Section 39. 10Ibid Section 40. 11Ibid Section 41. 12Ibid Section 42. 13Ibid Section 43. 14Dakas C J Dakas,‘Judicial reform of the legal framework for human rights litigation in Nigeria: novelties and perplexities’. http://www.nials- nigeria.org/journals/DakasJudicial%20ReformLegal%20Framework%20of%20Human%20Rights%20Litigation.pdf. 15Cap. N46, Laws of the Federation of Nigeria 2004. 16Cap. L9, Laws of the Federation of Nigeria 2004. 17The Child Rights Act 2003. 18BiolaAdimula: An overview of the Nigerian child Rights Act, 2003. www.salvationchambers.com/102.pdf 19The Child Rights Act 2003 20Biola (note 18 above) 21Ibid. Page | 182 AJLHR 3 (2) 2019 confrontation.22 The NHRC monitors respect for human rights, investigates alleged cases of abuse and reports on the status of human rights in the country. It also assists victims in seeking redress, monitors prisons, engages in human rights education and helps the Government formulate policies on human rights. 23 Legal Aid Council: Legal Aid Council is a scheme set up by the Federal Government under Legal Aid Act Cap L9 Laws of the Federation, 2004 to provide free legal advice, assistance and representation to poor Nigerians. They ensure equity and justice for all Nigerians, by providing effective free legal aid and assistance in a way that reflects basic constitutional ideals and goals of government policies on access to justice. Their services include, Representation at the Police Stations and in Courts, Advice and assistance (written or in conference), Legal counseling, Mediation and Financial/welfare assistance to target groups namely: women and children standing trial or in custody or prisoners released from the prison custody at the instance of Legal Aid Council. Domestication of International Human Rights Treaties in Nigeria International treaties are generally not enforceable in Nigerian Courts24this is because Section 1(1) of the 1999 constitution of the federal republic of Nigeria as amended states that: ‘this constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.’ section 1(3) further states 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.’ Further reason can be found in section 12(1) of the constitution25, which provides as follows: ‘No treaty between the Federal and any other Country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly’. From the above, any international treaty entered to by the government of Nigeria must be enacted into law by the National Assembly, after which such a treaty becomes binding, and the court must give effect to it as is the case with all other laws falling within the judicial powers of the courts. This is so because section 36(12) of the constitution provides thus: ‘Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore, is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a law of a state…’ Few international treaties have been fully domesticated in Nigeria. In 1960, by an Act of Parliament, the four Geneva Conventions of 1949 which are treaties on international humanitarian norms were given legal force in Nigeria.26The four Conventions were fully domesticated. The African Charter on Human and Peoples’ Rights was transformed into Nigerian municipal law on 17 March, 1983. This was done through the promulgation of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.27The Act makes it abundantly clear that the Charter shall have the ‘force of law’ and ‘full recognition and effect’ in Nigeria. Its application without exception extends to all authorities and persons exercising legislative, executive or judicial powers in Nigeria. 22See http://www.nigeriarights.gov.ng/index.php/about-us/the-commission 23The observatory frontline: Nigeria: Defending Human Rights: Not everywhere not every right. International fact-finding mission report 2010 http://www.omct.org/files/2010/05/20688/Nigeria mission report.pdf 17 24J. J. Eluyode: Enforcement of International Humanitarian Law in Nigeria (2003) 3 AHRLJ 265. 25[1999] As amended. 26Laws of the Federation of Nigeria 1960, No 54 now published as Cap. 93, Laws of the Federation of Nigeria 1990. 27Cap 10, Laws of the Federation of Nigeria 1990. Page | 183 EKEKE: Procedure for the Enforcement of Fundamental Rights in Nigerian Courts: Challenges And Prospects 3. Enforcement of Human Rights in Nigeria Before the coming into force of the 2009 Fundamental Right (Enforcement Rules), procedure for the Enforcement of Fundamental Human Rights in the High Court required the leave of Court by filing a Motion Expert supported by an Affidavit, the statement of material facts and verifying Affidavit within twelve months of the occurrence of the event complaint against.28When leave is granted, a Motion on Notice is filed in the same manner as the Motion Expert and served on the party complained against i.e. the Respondents. The party served must have at least eight days to respond before the hearing, which must be within fourteen days of the granting of the leave.29The new procedure rules which was signed on 11th November, 2009 by the then Chief Justice of Nigeria, C J N. Justice Idris Legbo Kutigi came into force almost immediately. By paragraph 3 (e)30 of the preamble to the rule, the courts are obliged to encourage and welcome public interest litigation in the Human Rights field and no Human Rights case may be dismissed for want of locus standi. Thus, the following persons can institute Human Right Cases: i. Anyone acting in his own interest-individual; ii. Anyone acting on behalf of another person; iii. Anyone acting as a member of, or in the interest of a group or class of persons; iv. Anyone acting in the public interest; iv. Association acting in the interest of its members or other individuals or group. By the new rules, the issue of locus standi is gone considering that the applicant no longer needs the leave of the court to apply for a redress for the violation of his Fundamental Rights. The new Procedure Rules brought innovations into the rules that will make the procedure easier for the Lawyer and Litigants. Under the new Rules Order II rule 2:31 ‘An application for the enforcement of Fundamental Rights may be made by originating process accepted by the Court which shall subject to the provision of these rules lie without leave of the Court’. Under Order I Rule 3 of the 1979 Rules, an application for the enforcement of fundamental rights must be made ‘within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court or Judge to whom the application...is made. However, Order III of the Fundamental Rights (Enforcement Procedure) Rules 2009 expressly provides that an application for the enforcement of fundamental rights ‘shall not be affected by any limitation Statute whatsoever.’32Paragraph 3(g)33 of the preamble to the new Rules directs courts handling human rights cases to give priority ‘in deserving cases’ to those suits, relative to other cases, and ‘where there is any question as to the liberty of the applicant or any other person, the case shall be treated as an emergency.’ Order II rule 3 provides that:34 ‘An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made’. Order II rule 4 further provides that:35 28Order 2 Rule 1 & 2 of the Fundamental Right Rules 1979. 29Abachav. Fawehimi [2001] 6 NWLR Part 660 P. 228. 30Fundamental Rights (Enforcement Procedure) Rules 2009 31Fundamental Rights (Enforcement Procedure) Rules 2009 32Dakas(note 14 above) 11 33Fundamental Rights (Enforcement Procedure) Rules 2009. 34Fundamental Rights (Enforcement Procedure) Rules 2009. 35Fundamental Rights (Enforcement Procedure) Rules 2009. Page | 184 AJLHR 3 (2) 2019 The affidavit shall be made by the Applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit. To fast track Human Rights litigation, Order II rule 537 provides ‘Every application shall be accompanied by a Written Address which shall be succinct argument in support of the grounds of the application.’ Order II rule 638 goes on to provide that: ‘Where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.’ And Order II rule 7.36 The applicant may on being served with the Respondent’s Written Address, file and serve an address on points of law within 5 days of being served, and may accompany it with a further affidavit. Courts with Jurisdiction In an action for the enforcement of Fundamental Human Rights, Section 46 (I) of the 1999 Constitution confers jurisdiction on a High Court of that State in which the infringement occurred. By the provision of order II rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009: any person who alleges that any of the Fundamental rights provided for in the constitution or African Charter on Human and People’s Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or likely to be infringed, may apply to the Court in the State where the infringement occurred or is likely to occur, for redress. Under the provisions of Section 46 (2) of the 1999 Constitution of the Federal Republic of Nigeria, a High Court shall have original jurisdiction to hear and determine any application made to it and may make orders, issue such writs and give such directives as it may consider appropriate for the purposes of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled. Thus, the Courts with original jurisdiction to hear matters of enforcement of Fundamental Rights by way of Fundamental Rights (Enforcement Procedure) Rules are: Federal High Court or High Court of a State or the High Court of the Federal Capital Territory Abuja. See Order 1 Rule 2 paragraph 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009.However, where one of the parties is Federal Government or any of its agencies. Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria gives the Federal High Court exclusive jurisdiction over matters including matters for enforcement of Fundamental Right. 4. Challenges and Limitations of the Enforcement of the Fundamental Human Rights In a significant departure from its predecessor, the Fundamental Rights (Enforcement Procedure Rules) 2009 breaks new grounds, simplifies and improved the framework of human rights litigation in Nigeria. However, the new rules, though, welcomed, still has many challenges for the enforcement of the Fundamental Human Rights. The challenges are as follows: 36Fundamental Rights (Enforcement Procedure) Rules 2009. Page | 185 EKEKE: Procedure for the Enforcement of Fundamental Rights in Nigerian Courts: Challenges And Prospects Courts’ Jurisdiction Section 251(r) of the 1999 Constitution of the Federal Republic of Nigeria clearly implies that the Federal High Court has exclusive jurisdiction on matters affecting the Federal Government or any of its Agencies. This means that an action for the enforcement of Fundamental rights cannot be maintained against the Federal Government or any of its Agencies in the State High Court. The problem with this requirement is that various States do not have Federal High Courts, Litigants will have to travel far distances at enormous expenses to institute actions in nearest Federal High Court covering their locality. The result is that various cases of human rights abuse do not get to the courts at all. Illiteracy The rate of illiteracy constitutes a challenge to the enforcement of Fundamental Rights in Nigeria. A number of the people in Nigeria cannot read or write as such cannot appreciate or understand what rights they have. The freedom of expression makes very little meaning. With loss of their freedom of expression goes their right to participate meaningfully in the Government. People especially those who cannot read or write in our Country do not even know what their rights are. They may therefore, not even know when those rights have been or are being infringed. Poverty Poverty is one of the greatest challenges to the enforcement of Fundamental Rights in Nigeria. Where there is an awareness of the right and the knowledge or realization of its breach or threatened breach and the courage to prosecute the claim, the prospective litigant may be too poor to go on with a costly and prolonged litigation up to the Supreme Court. Lack of Security Increase in crime rate in Nigeria is itself a challenge to the enforcement of Fundamental Right. Right of freedom of movement, right to own property, right to personal liberty is constantly violated with kidnapping that is prevalent in Nigeria. Attitude of Security Agents Despite the existence of Fundamental Human Rights provisions in our constitution, the Nigerian security agencies are still detaining people beyond the acceptable time of 48 hours without charging them to Court for trials. 5. Conclusion Fundamental Human Rights have become an issue in all jurisdictions of the world, including Nigeria. Despite the enshrinement of these rights in our Constitution, and the increasing activities of human rights groups and the establishment of Human Right Commission in Nigeria, Human Right abuses are on the increase in Nigeria. We have evaluated the provisions of Fundamental Human Right in Nigerian Constitution, and considered the enforceability under the Fundamental Rights (Enforcement Procedure) Rules 2009, jurisdiction, and the jurisprudence of the Courts as provided in the Constitution. Before the coming into force of the 2009 rules, the procedure was so cumbersome, the Litigants had to seek for leave, and had to come within a specific period of time from the happening of the breach of the right, but with the new Rules of 2009 that has been done away with, and the issue of Locus Standi is also done away with in the new rules. The new rules break new grounds, simplify and bolster the framework of human rights litigation in Nigeria. Page | 186 AJLHR 3 (2) 2019 THE ACCUSATORIAL AND INQUISITORIAL MODELS OF CRIMINAL PROCEDURE: A HISTORICAL AND COMPARATIVE APPROACH* Abstract In most legal systems around the world, the administration of criminal justice follows one of two models: the accusatorial (also called adversarial) model and the inquisitorial model. While the former is the model of the Anglo-American countries, i.e. the Common Law world, the latter can be found on the European continent, i.e. Civil Law countries. This article traces the origins and developments of these systems of criminal procedure and explores the theoretical and practical differences and similarities of the two systems. Keywords: Accusatorial, Inquisitorial, Criminal Procedure, Historical and Comparative Approach 1. Introduction In most countries, including Rwanda, the administration of criminal justice follows one of two models: the accusatorial (also called adversarial) model and the inquisitorial model. While the former is the model of the Anglo-American countries, i.e. the Common Law world, the latter can be found on the European continent, ie Civil Law countries. As a result of colonisation, these two models of criminal procedure were also exported into Africa, Asia and South America. As Herrmann correctly says1, however, there are some important exceptions from this dichotomy. In the course of the last hundred years several Civil Law countries have reformed their justice systems by moving from the inquisitorial to the adversary model. Spain was the first country to do so in 1870 after a revolution had brought about an era of liberalism. In 1887 Norway passed a new legislation that was strongly influenced by English law. Denmark followed in 1916 and Sweden in 1946, each enacting integrated codes of criminal and civil procedure. After World War II Japan replaced its inquisitorial system which was modelled on German law by a new code that, to a great extent, followed the American system. This article traces the origins and developments of these systems of criminal procedure and explores the theoretical and practical differences and similarities of the two systems. 2. Early Developments Both the accusatorial and inquisitorial systems were historically preceded by the system of private vengeance in which the victim of a crime fashioned his own remedy and administered it privately, either personally or through an agent. The vengeance system was a system of self-help, the essence of which was captured in the Old Testament biblical slogan "an eye for an eye, a tooth for a tooth."2 The very first form of litigation in post-primitive society in Western Europe was by means of an accusatorial process: instead of private vengeance, there was now an open confrontation between two equal parties, the complainant and the accused, before an impartial arbiter, the judge or tribal council. It was broadly the procedure in ancient Greece, in Rome, (in the case of delictaprivata3) and among the Germanic tribes. The procedure was verbal and public, and there had to be a specific *Evode KAYITANA, LLB, PGD, LLM, LLD, Lecturer, University of Rwanda. E-mail: [email protected] 1 J Herrmann, „Various Models of Criminal Proceedings‟ 2(1) South African Journal of Criminal Law and Criminology (1978), p. 3. 2 U Kayitesi and R Haveman, Rwandan Criminal Procedure, National University of Rwanda, Butare, 2008, p. 9. 3 Both the old Germanic and Roman laws, as well as other ancient legal systems, drew a distinction between purely (delictaprivata) and wrongs with which the community or its sovereign had to deal with (delictapublica). Page | 187 KAYITANA: The Accusatorial and Inquisitorial Models of Criminal Procedure: A Historical and Comparative Approach complainant. The criminal procedure was identical to the civil procedure4.Towards the end of the middle ages the inquisitorial process gradually displaced the abovementioned procedure. This development culminated in the introduction of this procedure into the ecclesiastic courts by Pope Innocentus III towards the end of the thirteenth century, and later in the famous Constitutio Criminalis Carolina of Charles V in 15325. The characteristics of this new process were the following: trials were mostly initiated not by a private complainant, but by the public authorities. The judge was an official who, in principle, investigated the case himself. The accused being a passive party, and merely the object of the inquiry, he could not challenge or contradict the contents of the protocol in the case drawn up by the judge. He had no procedural rights. The whole procedure was conducted in secret. One of the main purposes of the inquiry was to obtain confessions from the accused, even by torture, if necessary. The whole process basically amounted to a confrontation not between two equal parties (the accused and the complainant), but between the accused and the judge or court-a dual in which the weapons were obviously most unequal. Whereas the accusatorial system was devised to safeguard the interest of the individual, the inquisitorial system set out in the first place to uphold the interests of the society and the State6. 3. Inquisitorial Reforms As a result of the liberal forces in German and the French revolution at the end of the eighteenth century, the use of torture was abolished, trial by jury, or by lay-judges, was introduced to counteract the power and malpractices or the official judges, and trials were once more verbally conducted in public. The duty of investigating the case, assembling the evidence and laying it before courts was entrusted to a separate agency, namely the state prosecution7. 4. The Chief Characteristics of the Two Systems: A Comparative Overview The special qualities of the two systems of criminal procedure are best observed at the trial stage. The trial that follows the adversary model is party-centered8 in the sense that the judge‟s role at the adversary trial is mainly passive. He, in theory, has only to listen to the evidence that is presented to him and hear the arguments by the parties and render his decision accordingly. In other words, he merely adjudicates upon the matter presented in the light of the evidence placed before him by the 4 CR Snyman, „The accusatorial and inquisitorial approaches to criminal procedure: some points of comparison between the South African and continental systems‟The Comparative and International Law Journal of Southern Africa, (1975), p. 101. 5Idem.The ConstitutioCriminalis Carolina (sometimes shortened to Carolina) is recognised as the first body of German criminal law (Strafgesetzbuch). It was also known as the Halsgerichtsordnung of Charles V. The Carolina was agreed in 1530 and ratified two years later. Under the terms of the ConstitutioCriminalis Carolina, actions such as murder, manslaughter, robbery, arson, homosexuality and witchcraft were henceforth defined as severe crimes. In particular the Carolina specified that those found guilty of causing harm through witchcraft should be executed with fire. It was also the basis for the use of obtaining confessions by torture. The aim of the ConstitutioCriminalis Carolina was to unify the legal system of the Holy Roman Empire, and thereby put an end to the penal jurisdiction which had until then varied haphazardly between the Empire's states. 6CR Snyman, op.cit, p. 102. 7Idem, p. 103. Through the influence of such writers as Grotius and Pufendorf, who espoused the theory of natural law, Montesquieu, Rousseau and Voltaire in France and Beccaria in Italy, emphasis was placed in the new criminal procedure on the individual and his personal rights. In 1789 the Declaration of Human Rights in France materially protected the rights of an accused to a „fair trial‟. Many of these ideas were incorporated for the first time in the French Code d’InstructionCriminelleof 1808. 8 J. Herrmann, op.cit, p. 5. Page | 188 AJLHR 3 (2) 2019 parties9. The adjudicator (judge) is an umpire (referee or arbiter) whose role is to ensure that the parties abide by the rules, but is passive even in that regard; he or she intervenes only if there is an objection from one side against the conduct of the other. To prepare the trial, not only the prosecution but also the defence has to collect its own evidence. The parties are also entitled to limit the issues of the contest through plea-bargaining10. In sharp contrast to the umpireal judge in the adversary system of criminal procedure, trials that follow the inquisitorial model are judge- centered11. The prosecution and the defence play comparatively minor roles at the trial; the procedure can be considered a quasi-scientific search for the truth rather than a dispute. The judge is in no way bound merely to consider the facts and evidence adduced by the parties, but must (in accordance with the original meaning of the term inquisitio-a searching after) himself see that the information and considerations necessary to decide the issue are investigated and borne out at the trial12. Sometimes it is said that because of his wide powers, the judge in inquisitorial systems searches the material truth, whereas the judge in the accusatorial systems is merely bound by to search for the formal truth, because he merely relies upon the information placed before him by the parties13. As almost all questioning of witnesses is done by the judge the distinction between examination-in- chief and cross-examination is unknown in inquisitorial systems14. Because the office of the public prosecutor is not a party opposing the accused, in his search for the truth the investigating officer must also investigate or consider all factors, which may exonerate the accused15. Both the prosecutor and judge must objectively consider and examine all evidence with a view simply of discovering the truth. Theoretically, in this pursuit of truth, the inquisitorial judge is as much an active party as the prosecutor and is in no way dependent upon the latter for his knowledge of the circumstances of the case. 5. Critique and Evaluation Whether the “continental” modern inquisitorial systems afford a better method of finding the truth than the Anglo-American adversarial systems, has been the subject of considerable debate. A brief consideration of some points of criticism levelled by the one system against the other must be of some assistance in evaluating the merits of each of them. The main point of criticism against the continental inquisitorial system, is the double role which the judge must necessarily fulfil. He has to be both the investigator, himself searching for the material truth and especially all facts and circumstances necessary to build up a case against the accused, and, at the same time, the arbiter who must objectively evaluate all these facts and considerations. These two functions of the 9 CR Snyman, op.cit, p. 103. 10 J Mc Ewan, Evidence and the adversarial process-the modern law, 1992, p. 4. 11 J Herrmann, op.cit, p. 5. 12 CR Snyman, op.cit, p. 103. 13Ibidem. 14In adversary systems law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in England, Australia and Canada known as examination-in-chief) and may be followed by a redirect (re-examination in England, Australia, and Canada). The main purposes of cross-examination are to elicit favourable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavourable testimony. Cross-examination frequently produces critical evidence in trials, especially if a witness contradicts previous testimony. 15CR Snyman, op.cit, p. 103 Page | 189 KAYITANA: The Accusatorial and Inquisitorial Models of Criminal Procedure: A Historical and Comparative Approach inquisitorial judge contradict each other, critics say16. In addition, critics say, it is difficult for the inquisitorial judge to be completely unprejudiced against the accused, if he virtually has to be both prosecutor and judge at the same time. Even if one defends the inquisitorial system with the argument that the judge also actively has to look for circumstances in the accused‟s favour, one still has the position that in the eyes of the accused, the judge is not wholly impartial, but is rather associated with the state prosecuting authority, of which he is seen to merely be a representative. The judge is therefore regarded by the accused as his opponent17. Moreover, in the English-speaking world the term “inquisitorial” often seems to imply vestiges of the old inquisitorial procedure with secret proceedings, the duty of the accused to make a confession, and enforcement of that duty by torture18. This is however not true. As said above, during the first half of the nineteenth century on the European continent the old inquisitorial procedure was replaced by reformed inquisitorial systems which were based upon liberalism and human rights19.The Anglo-American accusatorial system, on the other hand, has been branded as being too much a contest between two parties opposing each other. In order to give his verdict, the judge merely relies on what he has been told by the parties, and they, in order to favour their own cases, can manipulate the truth. The result is that the final verdict of the judge cannot be described as reflecting the “material truth”, but at most-so it has been described-the “formal truth”20. The aim of each party, critics say, is to “win the case”, regardless of whether the outcome of the case is in accordance with truth and real justice21. As Professor Christopher Snyman rightly says however, to describe the judge in the Anglo- American system as merely a passive referee, who decides merely on issues and considerations presented to him by the parties, is to oversimplify the system‟s basic character to the extent perhaps of even distorting it. It is also in these systems the task of the court or judge to ascertain the truth and to do justice according to law22. In the adversarial systems, it is the prerogative of the judge to decide on the admissibility of all evidence tendered by the parties. He may rule evidence to be inadmissible even when there has been no objection thereto by any of the parties. He may ask questions to all witnesses and for this purpose may even interrupt the questioning of a witness by one of the parties. He may call back witnesses who had already given evidence in order to ask them additional questions, and, what is most important, he may even in certain circumstances himself call a witness, who has not been called upon to give evidence by any of the parties23. All these considerations clearly indicate the extent to which the purely accusatorial character of the Anglo-American criminal procedure is qualified by inquisitorial traits. In fact, some commentators have argued that the theory of an “active inquisitorial judge” is in practice nothing more than a myth. In most cases, the „inquisitorial judge relies entirely on the facts and evidence contained in 16 CR Snyman, Op.cit, pp. 107-108. 17Idem, p. 108. 18 J Herrmann, op.cit, p. 4. 19 J Herrmann, op.cit, p. 4. 20 CR Snyman, op.cit, p. 108. 21Ibidem. 22Idem, p. 110. 23Idem, pp. 110-111. Page | 190 AJLHR 3 (2) 2019 the dossier that has been compiled by the police and the prosecutor. They argue that in practice, much of the „inquisitio‟-that is investigation-is done by the police because it them who learn about the crime first and are better trained than prosecutors or judges to use the technology of fact finding. It thus appears that in practice, the „inquisitorial judge‟ is not more active than his British or American counterparts24. 6. Conclusion This article has traced the historical origins and developments of the inquisitorial and accusatorial models of modern systems of criminal procedure and assessed the special qualities of one system as compared to the other. It was noted that today reality all over the world is, a mixed system, with some countries tending more towards the inquisitorial model (Europe and most of its former colonies), and others tending more towards the adversarial model (Great Britain and most of its former colonies, as well as the United States). It was found that existing criminal systems follow the adversary or the inquisitorial model in a more or less strict manner, some systems being more adversary or inquisitorial than others. Whether the Accusatorial or the Inquisitorial system presents the best way of discovering the truth will always be the subject of debate. As Snyman25 correctly points out, no system of procedure, being the product of human beings, can claim to be so devised as to reveal the absolute truth, or truth at all costs. 24 On the theoretical and practical differences and similarities, see A. S. Goldstein and M. Marcus, „The Myth of Judicial Supervision in Three „Inquisitorial‟ Systems: France, Italy, and Germany‟, 87 YALE LJ 240 (1977); 25Ibidem. Page | 191