Nigerian Bar Association,

Osogbo Bar Journal of Law (OBJL)

Vol 1 Issue 1.

______________________________________________________________ i
 Editor-in Chief
Dr Maruf Adeniyi Nasir

Editorial Consultants

1. Prof. F. A. R. Adeleke
Dean Faculty of Law
Lagos State University,
Ojo, Lagos.

2. Prof Olaide A. Gbadamosi

Provost/Dean College of Law
Osun State University
Ifetedo Campus, Osogbo.

EDITORIAL ADVISORY BOARD

1) Dr Misbau Alamu Lateef Chairman

2. Dr Maruf Adeniyi Nasir Editor-in-Chief
3. Mr. Tolu Adeyemo Member
4. Mr. Philips Afolayan Member
5 Mr. Hashim Abioye Member
6. Mr. Hassan Agbelekale Member
7. Mr. Gbenga Fayemiwo Member
8. Mr. Lekan Bello Member
9. Mr. Rasheed Adebiyi Member

EDITORIAL COMMITTEE

1) Dr Maruf Adeniyi Nasir Editor-in-Chief

2) Mr. Bamidele Ajibade Editor
3) Mr. Abdulrahman Okunade Editor
4) Mrs Julie Olorunfemi Editor
5) Mr. Yusuf Oladapo Akintola Editor
6) Mr. Seun Peter Ogundari Editor
7) Mr. S. O. Abiona Editor

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Nigerian Bar Association

Osogbo Bar Journal of Law

(OBJL)

ISBN: 978-978-38530-5-8

© Nigerian Bar Association, Osogbo Branch

All rights reserved. No part of this publication may be reproduced or transmitted in

any form or by any means or stored in any retrieval system of any nature without
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for permission for other use of copyright material including permission to
reproduced extracts in other published works shall be made to the copyright holder.

The view expressed in this journal are those of the contributors and not necessarily
that of the NBA, Osogbo Branch.

Published and Printed by

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______________________________________________________________ iii
 EDITORIAL NOTE

We are delighted to introduce the maiden edition of the Osogbo Bar Journal of Law
(OBJL). It is a peer reviewed journal with sole objective of publishing high quality,
insightful, current legal issues and original research works. This maiden edition is
published in honour of Asiwaju Adegboyega Solomon Awomolo, SAN, the first
Attorney-General and Commissioner for Justice of Osun State, who is an
embodiment of integrity, a mentor, and shining star in the legal profession.

OBJL is a biennial publication of the Nigerian Bar Association, Osogbo Branch.

Contributions in terms of articles, case review, commentaries, book review and other
legal research works are welcome. We are therefore grateful, to all those that make
this publication a reality. While adopting OSCOLA style of citation, we assure that
OBJL shall continue to be published in line with international best practices.

This edition maybe cited as OBJL, Volume 1, Issue 1, 2020.

Maruf Adeniyi NASIR (PhD.

osogbobarjournal@gmail.com
+2348062511875

______________________________________________________________ iv
A NOTE FROM THE BRANCH CHAIRMAN’S DESK

Whether through court room advocacy, public discussions and agitations or

scholarly writings, lawyers have for ages been known to advance the frontiers of
knowledge. It is for further preservation of this niche that the leadership of the
Osogbo Branch of the Nigerian Bar Association (NBA) resolved to, at her level,
institutionalise the intellectual contributions, hence this initiative christened the
Osogbo Bar Journal of Law (OBJL).

For depositing in us the inspiration that gave birth to this project, the biggest
gratitude is given to God the Almighty. And to the persons who made themselves
available for bringing the project to fruition, I, for myself and on behalf of my
colleagues in the Executive Committee of the Osogbo Branch of the Nigerian Bar
Association, cannot be sufficiently grateful. Among them, I thank Asiwaju
Adegboyega Solomon Awomolo, SAN, the first Attorney-General and
Commissioner for Justice of Osun State, for accepting to have this maiden edition
of the journal published in his honour; and Mallam Yusuf Olaolu Ali, SAN, for
graciously facilitating the honouree’s involvement in this project. It is also
noteworthy that Mallam Yusuf Olaolu Ali, SAN is one of the authors whose
contributions are published in this edition.

I thank also, and specially too, the Editorial Committee under the headship of Dr M.
A. Nasir of the College of Law, Osun State University, Ifetedo, Nigeria and the
Editorial Advisory Board under the chairmanship of Dr M. A. Lateef of the Faculty
of Law, Obafemi Awolowo University, Ile-Ife, Nigeria, for their tireless efforts,
rendered free of charge, in ensuring that this endeavour sees the light of day. I
cannot thank them enough.

Without contributors, the project could not have got off the ground. And to that
extent, but for the expert advice which we must heed, we would have loved to see
all the entries published. I thus seize this medium to crave the understanding of the
contributors whose papers did not get published in this edition.

I have had the privilege of reading the papers paraded in this maiden edition of the
journal, and nurse no hesitation to declare that law teachers, law students, legal
practitioners, judges of all cadres, researchers and general seekers of knowledge will
find the works exceedingly worthwhile. And, for the beautiful way this project has
turned out, the credit goes to everyone who in one way or another contributed to the

______________________________________________________________ v
success story, while I solely take responsibility for any shortcomings that may be
noticed therein. I verily believe that subsequent editions will get better and better.

To our ever supporting and guiding leaders and senior colleagues in the Branch, our
other learned colleagues and the wonderful members of my Executive Committee, I
am very grateful for the support and cooperation, one of the manifestations of which
is the historic birth of this journal.

Abdulrahman Okunade
Chairman, Nigerian Bar Association (NBA),
Osogbo Branch
+234(0) 703 423 7702
oslad500@gmail.com, osogbobar01@gmail.com,
osogbobarjournal@gmail.com
December, 2020.

_____________________________________________________________ vi
 A SIWAJU A DEGBO YEGA S OLOMON A WOMOLO
(S AN )

_____________________________________________________________ vii
 P ROFILE O F
A SIWAJU A DEGBO YEGA S OLOMON A WOMOLO (S AN )
INTRODUCTION

A highly versatile, prolific and amiable gentleman, Asiwaju Adegboyega Solomon

Awomolo, SAN, hails from Igbajo, Boluwaduro Local Government Development
Area, of Osun State. Born on Friday the 19th day of September 1947 at Orile-Ilugun,
Egba Odeda Local Government of Ogun State, to late Pa Jacob Dare Awomolo and
late Mama Felicia Anike Asimawu Awomolo, Iya Egbe Aya Bishop of St. James
Anglican Church, Orile Ilugun.

EARLY EDUCATION

Asiwaju Awomolo started his early education at St. James’ Primary School, Orile-
Ilegun, Egba Odeda Local Government Area in Ogun State from 1955 – 1960. He
was the Agric and Sports Prefect of the School between 1959/1960.
He then attended the Egba Odeda Anglican Secondary Modern School 1961 – 1963.
He later attended Bamiyowa Evening School, Oke-Ado, Ibadan where he studied
and obtained University of London General Certificate of Education (GCE O’Level
and Advanced Levels).
He gained admission to study law at the University of Ife (Now, Obafemi Awolowo
University, Ile-Ife) from 1974 – 1977 and he proceeded to the Nigerian Law School,
Lagos from 1977 -1978.
He was called to the Nigerian bar in 1978.
He attended Nigerian Baptist Theological Seminary Ogbomosho where he obtained
a Diploma Certificate.

EARLY WORK EXPERIENCES

Asiwaju's work experience are quite unique and diverse. He started his working
career with the Firm of Abdullahi and Awomolo Nigeria Limited, Civil Engineers,
Builders and Contractors from 1965 - 1967. He was Site Assistant, Records and
Stock keeper at various building locations particularly at the University of Ibadan.
He enlisted into Nigeria Police Force, Signal Section from 1967 – 1972. He worked
in several places including Ibadan, Ijebu-ode, and Enugu State in the then East
Central State. He had a brief stint with C. S. S. Bookshop, Ltd. Ibadan from 1972 –
1974 as Sales Representative covering the present Oyo, Ogun, Ondo, Ekiti and Osun
States.
As a legal practitioner on National Youth Service Corp, he worked as a State
Counsel in the Kwara State Ministry of Justice, Ilorin from 1978 – 1979. He was a
prosecutor in the office of the Public Prosecutor under the late Alhaji S.B.A Laaro

_____________________________________________________________ viii
and Alhaji Saka Yusuf, later the Honourable Judge of Kano State and Chief Judge
of Kwara State. He also acted as Counsel defending less privileged and poor
defendants in the Legal Aid Council, Kwara State. He traversed Ilorin, Lokoja,
Okene, New Bussa Judicial Divisions.
From 1979 – 1983, Asiwaju Awomolo worked in the esteemed law firm of Tunji
Arosanyin and Company (Barristers, Solicitors, and Notary Public) based in Ilorin.
He traversed several jurisdictions in several States of Nigeria. He supervised the
design and building of Destiny Building, Wahab Folawiyo Road, Ilorin and moved
the Chambers into the new structure.
Within the period of 1978 to 1981, he found himself in the noble world of the
academia as a lecturer in Kwara State Polytechnic. He was appointed also a part-
time lecturer at the University of Ilorin, Faculty of Law, when the Faculty of Law
was established by the University of Ilorin.

In 1983, he founded his own hallowed law chambers, Adegboyega Awomolo and
Co. (Mosaic Chambers), located at Owoniboys House, 159 Ibrahim Taiwo Road,
Ilorin.
Due to his indefatigable passion for the legal profession, he was appointed the 1st
Attorney-General and Commissioner for Justice, Osun State from 1992 - 1993.

SOCIAL RESPONSIBILITIES

Asiwaju Awomolo is also a sound social activist. He was an active member of

Rotary International; Rotary Club of Ilorin, Oshogbo; past Secretary, Rotary Club,
Ilorin from 1989 - 1991; Director of Community Services from 1991 - 1992; He was
the Convener and 1st General Secretary, Country Club, Ilorin from 1981 - 1984; He
is a Paul Harris Fellow of the Rotary International. President, Country Club, Ilorin
from 1994 - 1996; member of Nigeria Police Enlightenment Committee from 1991
- 1998, member, Osun Club, Ilorin; He was a foundation director of the Board of
Osun State Investment Company Ltd; Special Marshal, Federal Road Safety
Commission; Co- founder and 1st President and Trustee, Games Village Residents
Association, Abuja, Co-founder and Trustee of the CITEC Villas Residents
Association. He is also a member of Osun Development Group.
He is the Patron of the International Federation of Women Lawyers, Abuja and Ilorin
Branches, Patron and mentor of the Young Lawyers Forum of the Nigeria Bar
Association. Patron, Lex-Fora, Abuja.
A man of utmost candour, he served as the President of University of Ife Law
Students Society between 1975 and 1976.

His love for Igbajo his ancestral home is legendary. He was installed Bamofin of
Igbajo Land in the year 1993. He was appointed Chairman, Board of Trustees of
Igbajo Development Association (IDA), Vice President/Incorporated Trustees of

_____________________________________________________________ ix
Igbajo Development League, Incorporated Trustee of Igbajo Polytechnic and the
Chairman of the Igbajo Annual Educational Foundation Lecture.
In 2015, he was installed by the whole Igbajo community as the Asiwaju of Igbajo
land. Twenty-three years after he was honoured with the chieftaincy of the Bamofin
of Igbajoland.

PROFESSIONAL MERITS AND AWARDS AND ENDORSEMENTS

Awomolo received the Merit Award as an outstanding National Youth Corp

Member in Kwara State 1978/79.
The Nigerian Bar Association following his records of outstanding passion for the
Association wellbeing and bringing reconciliation back to the Association,
following the impasse between 1992 – 1998 awarded him Outstanding Practitioner.
He also received the Peace Maker Award, Nigerian Union of Journalists in 2003.
Asiwaju Awomolo's cavernous sense of erudition saw him being elected and
appointed into various positions in the Nigeria Bar Association, which includes:
Assistant Secretary, NBA. Ilorin Branch (1980 - 1981);
General Secretary, Nigerian Bar Association, Kwara State (1981 - 1982); Member,
National Executive Committee of the NBA (NEC) (1987 till 2016); Chairman,
NBA. Ilorin Branch (1990 to 1992);
Member, Council for Legal Education (1992 - 1993); Notary Public:
Appointed by the Chief Justice of Nigeria, Honorable Justice Mohammed Bello
(G.C.O.N.); Life member, Body of Benchers, Chairman of the committee of
Chairmen and Secretaries of the Nigerian Bar Association 1997 – 1998, conducted
election to the office of the President, Nigerian Bar Association and installed Chief
T.J.O Okpoko SAN 1998 – 2000. Member, Body of Senior Advocates of Nigeria
(1992 - till date);
Member, Legal Practitioners Disciplinary Committee (2006 - 2012);
Director, National Bank of Nigeria (2001 - 2004); member, Governing Council,
Nigerian Baptist Theological Seminary, Ogbomosho (2002 - 2004); member,
General Council of the Bar (2005 - 2007); member, Finance, publicity and screening
Committees, Body of Benchers; member, International Bar Association (I.B.A.);
Member, Law Reporting Committee: Appointed by Hon. Chief Judge of Kwara
State, Justice T. A. Oyeyipo (Rtd); Secretary, Law Reporting Committee: Appointed
by the Nigerian Bar Association, Ilorin Branch. Member, Board of Trustees, Body
of Senior Advocate of Nigeria 2016 – till date

______________________________________________________________ x
PROFESSIONAL WORK

• Asiwaju Awomolo has a unique blend of intense, profound and varied work
experiences notable among which are:
• Criminal prosecution and preparation of legal opinions for Kwara State
Ministry of Justice (1978-1979);
• Defence of accused persons in capital offences - Legal Aid Council (1978 -
1979);
• Lead Consultant on Constitutional matters, Senate of the Federal Republic
of Nigeria 2014 till date;
• Litigation particularly civil/criminal matters in the High Court, Court of
Appeal and the Supreme Court;
• Participation in legislative workshop and drafting of Electoral Act (2004)
• Adviser & Counsel to Banks in conveyance matters, conduct of searches,
preparation and execution of deeds of mortgage, debentures, assignments
and leases; and election petitions (1999 - 2002).

Furthermore, Asiwaju has led in several cases of both national and international
repute; such as the constitutional matters of national repute all the way to the
supreme court, Presidential and Governorship election petitions, civil and criminal
cases, both as Federal Government Appointed prosecutor and also as a defence
Lawyer.
Most of his cases have helped to develop and shape the face of our legal
jurisprudence as his arguments have highlighted fine points of law in Nigeria.
He has served on the Board of many companies and institutions, including; National
Bank of Nigeria (Now WEMA Bank plc), Macadams Ltd, amongst others.
He was appointed as Constitutional and Legal consultant to the National Conference
set up by His Excellency Goodluck Jonathan GCFR, former President of Nigeria in
2014.
Asiwaju, was for 6 years, 2011 – 2017, the lead Consultant to the Independent
National Electoral Commission (INEC) consisting Five Senior Advocates of Nigeria
and over 50 lawyers, in defending the interest of INEC in all courts throughout
Nigeria.
It is common knowledge that INEC won most of the cases. This has brought stability
and credibility to the electoral process in Nigeria.
He has also advised and defended the Federal Government, on a Seven Billion Naira
maritime transaction and is presently leading an Out of Court Settlement of dispute
between parties.
He is a Fellow of the Nigerian Institute of Chartered Arbitrators (NICArb), Fellow
of the Nigerian Institute of Advanced legal studies (NIALS) where he has for man

______________________________________________________________ xi
 years delivered papers at their training/continue legal education programmes. He
delivered the Nigeria Institute of Advanced Legal Studies, Fellows Lecture In 2016.
He is a member of the Registered Trustee of the Institute of Advanced Legal Studies
Fellows Foundation. He is the Chairman of the Mohammed Lawal Uwais Public
Service Award Committee of the Institute of Advanced Legal Studies.
The Governing Council of Osun State College of Education, Ilesha conferred on him
‘Fellow’ of the College of Education, Ilesha Osun State.
He has headed the firm of Adegboyega Awomolo and Associates for almost 40 years
and has trained over 250 legal practitioners many of whom are today Judges, Senior
Advocates of Nigeria and captains of industries within and outside Nigeria.

SPIRITUAL CERTIFICATIONS

His sheer thrust for moral and spiritual completeness drove him to obtain a
Certificate in Ministerial Counseling from the Nigerian Baptist Theological
Seminary at Ogbomosho in 2003/2004. He was an Usher and Life Member of the
Full Gospel Business Men Fellowship, Eminent Chapter, Gwarinpa, Abuja and a
Volunteer Legal Adviser to the Nigerian Baptist Convention. The Annual Carol
Cantata of his Chambers since year 2000 has grown to be a veritable tool in
evangelism and winning of souls while giving back to society.

FOUNDATION

Asiwaju Awomolo is the initiator and Chairman of Adegboyega Solomon Awomolo

Education Foundation (ASASEF).
He is a co-founder and registered Trustee of Solomon and Victoria Foundation,
forest conservation and care giver for widows, old and disadvantaged people in the
society.

FAMILY LIFE

He is happily married to Chief (Mrs) Victoria Olufunmilayo Awomolo SAN who he

fondly calls ‘funlayo. A Chemist turned Legal Practitioner and Senior Advocate of
Nigeria. Blessed with four wonderful children and grandchildren to whom he
passionately loves. He is a consummate family man. His hobbies are travelling,
singing hymns, reading and photography.

______________________________________________________________ xii
________________________________________________________________

CONTENT

1. An Examination of Corporate Social Responsibility (CSR) Under Islamic Law

for Islamic Finance
Misbau Alamu LATEEF (PhD)…………………………………………….…..1
2. An Interrogation of the Special Recovery Powers of Asset Management
Corporation of Nigeria: Trends, Amendments and Constitutionality
Kunle Adegoke (SAN) …………………………………………………………...17
3. Restricted Approach to Judicial Intervention in Commercial Arbitration;
The Nigerian Experience
Philip Osarobo Odiase, PhD and Olaide A Gbadamosi, PhD ………….…33
4. Covid-19 and the Emerging New Face of Legal Practice
Yusuf Olaolu Ali (SAN)……………………………………………………….… 55
5. National Human Right Commission: A General Assessment
Olugbenga Damola Falade (LLM, BL)…………………………………….… 64
6. Judex and the theory of Scapegoatism in Nigeria: Deconstructing and
Renegotiating the Doctrine of Separation
Wahab Egbewole (SAN), Qasim A. Egbewole and Olanike Adelakun…….77
7. Freedom of Association and the Right to Freely Protest Government Policy in
Nigeria Revisited
Oladiran Akinsola Ayodele (LLD) and Heme Awar (LLM, BL)………….. 95
8. Comparism of Fundamental Rights (enforcement Procedure) (FREP) Rules,
1979 and 2009, and the Legal Dissability of (FREP Rules, 2009) in covering
all Violations of Rights in Nigeria
Fazazy Segun DAUD (LLM, BL)………………………………………………. 124
9. Legal Analysis of the Correctional Services act in Nigeria
S.Ajibola Basiru (PhD)………………………………………………………......151
10. Negative Perceptual Impact On Islamic Law and its Implications on the
Nigerian Legal System
Maruf Adeniyi NASIR (PhD)…………………………………………………… 171
11. Challenge of Autochthony: Constitutional Re-engineering in a Democratic
Nigeria
Mojeed Olujinmi O. Alabi (PhD)………………………………………………. 186

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________________________________________________________________

A N E XAM I N A T I ON O F C O R PO RA T E S OCI A L R E S P ON S I B I L I T Y (C S R )
U N D E R I S L A M I C L A W F OR I S L AM I C F I N AN CE
BY
M I S B A U A L AM U L AT E E F
A B S T RA CT
Islamic finance operates based on shari’a principles, which prohibit
interest-based transactions and speculative activities. This paper
examines the concept of corporate social responsibility (CSR) in
the context of Islamic finance, and how CSR can be infused into the
practices of Islamic finance. The paper begins with definitions of
the concept of CSR from various western perspectives, followed by
a discussion of similar or parallel concepts and practices under
Islamic law (shari’a). Using a doctrinal research methodology by
relying on primary and secondary sources of information, the
paper explores the concept of CSR within the maqasid al-shari’a
(objectives of the shari’a) or maqasid paradigm. The paper
concludes that while the implementation of CSR within the context
of the maqasid paradigm will readily come with obstacles, the
underlying benefits of such implementation far outweighs the
burden and limitations of the obstacles. However, overcoming the
obstacles will require a paradigm shift and dynamism in the
practice of the shari’a advisory and supervisory boards.

I. INTRODUCTION
The increasing number of financial scandals comprising fraud, breach of trust,
misrepresentation and other forms of unethical behaviours that have characterized
the activities of large corporations such as Enron, Arthur Anderson, WorldCom and
a host of others1 in the past decades have helped to keep certain underlying
challenges within the western modelled financial system in the front burner of
discourse among scholars and other stakeholders. Concerns of multiple stakeholders
have therefore centered around issues of lack of transparency and ethics, risk of
moral hazard in financial practices and the lack of social responsibility and
governance in the management of financial institutions. These issues, in turn, have
helped to heighten discussions on the inadequacy or outright failure of government
regulations, as well as the concept of social responsibility and corporate governance
in the management of corporations. Furthermore, the issues have helped in the

1
Cato Institute: Enron, WorldCom and Other Disasters. (Cato Handbook for Congress. Policy
Recommendations for the lOS Congress, Washington, D.C., 2002) Chapter 22.

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________________________________________________________________

search for an alternative or complementary financial system such as presented by

Islamic finance.

However, Islamic finance, which has only gained currency and witnessed rapid
development during the past four decades or so, was able to avoid the full impact of
the recent global financial crisis of 2008 and subsequent years. This is in part
because Islamic finance operates on the basis of shari’a principles, which prohibit
interest-based transactions and speculative activities.2 Indeed, after the 2008 global
financial crisis, assets of the top 500 Islamic banks expanded 28.6 percent to a total
of US$822 billion by year-end 2009, with bright prospects for future growth.3 This
is not to say, however, that the practices of Islamic finance are perfect or devoid of
criticisms. The proponents of Islamic economics and shari’a scholars have proposed
that Islamic finance should also serve more socio-economic goals, which are
actually the core of the true objectives of Islamic financial institutions and are among
the expectations of their various stakeholders.4 Therefore, the current practices of
Islamic finance can be improved and strengthened with the infusion of the concept
of Corporate Social Responsibility (CSR) into them, provided such infusions are in
line with shari’a principles. This will no doubt assist Islamic financial institutions
to meet their true objectives and their stakeholders’ expectations, as well as
maximizing the institutions’ benefit to society.

This paper examines the concept of CSR in the context of Islamic finance, and how
CSR can be infused into the practices of Islamic finance. The paper begins with
definitions of the concept of CSR from various western perspectives, followed by a
discussion of similar or parallel concepts and practices under Islamic law (shari’a).
The paper then explores the concept of CSR within the maqasid al-shari’a
(objectives of the shari’a) or maqasid paradigm and, finally, discusses the
opportunities and challenges in applying the western idea of CSR to the current
domain of Islamic finance.

2
Edib Smolo and Abbas Mirakhor, “The global financial crisis and its implications for the Islamic
financial industry,” International Journal of Islamic and Middle Eastern Finance and Management
3:4 (2010): 337.
3
Standard & Poor’s, Islamic Finance is likely to go grow apace on broadening geographic reach in
2025, accessed October 6, 2019, http://www.securities.com/doc.html?pc=IG&sv=IFIS&doc_id=25
1658443&print 1.
4
Asyraf Wajdi DusuKi, “Understanding the Objectives of Islamic Banking: A Survey of Stakeholders’
Perspectives:’ International Journal of Islamic and Middle Eastern Finance and Management 1:2
(2008): 134—5.

_____________________________________________________________ 2
________________________________________________________________

II. D E F I N I N G C O R P O R A T E S O CI A L R E S P O NS I B I L I T Y (CSR)
Corporate social responsibility (CSR), otherwise also known simply as corporate
responsibility (CR) in the management literature,5 is a topic that has received
increased attention in the last two decades in practice and in theory, both in
management and law.6 It has also been interchangeably used in some literature with
other terms like ‘corporate sustainability’ and ‘social responsibility’. Just like
corporate governance, CSR is a concept without any single universally agreed term
let alone a unified definition. However, in a much earlier definition in time, CSR has
been defined as “the firm’s consideration of, and response to, issues beyond
the…economic, technical, and legal requirements of the firm to accomplish social
benefits along with the traditional economic gains which the firm seeks.” 7 To put
simply, CSR anticipates that boards of corporations will consider, manage and
balance the economic, social and environmental impacts of their activities.

Furthermore, in a 2011 report, the European Commission simply defined CSR as

“the responsibility of enterprises for their impacts on society”. 8 Justifying the
adoption of the definition, the Commission states further in the report that
“enterprises should have in place a process to integrate social, environmental,
ethical, human rights and consumer concerns into their business operations and core
strategy in close collaboration with their stakeholders.”9 Thus, the emphasis has
shifted from philanthropy and attention to corporate action beyond law to an inquiry
into how a company conducts its business.10

5
Alice Klettner (2017) Corporate Governance Regulation: The Changing Roles and Responsibilities
of Boards of Directors. Op. Cit. p.141. Actually, it is the academics and practitioners in the
management who now largely refer to the term as corporate responsibility. See Celine Gainet
(2010) Exploring the Impact of Legal Systems and Financial Structures on CR. Journal of Business
Ethics. 95. pp. 195 – 197. The author discusses the shift in nomenclature from “corporate social
responsibility” to “Corporate responsibility,” for, among other reasons, encompassing the concept
of both social and environmental responsibilities in a single term. Also, the term ‘corporate
sustainability’ has been used interchangeably with corporate responsibility and corporate social
responsibility.
6
Cynthia A. William (2018) Corporate Social Responsibility and Corporate Governance. In Gordon
J.N. & Ringe Wolf-George (eds.). The Oxford Handbook of Corporate Law and Governance. New
York, United States of America: Oxford University Press. p.634.
7
Keith Davies (1973) The Case for and against Business Assumption of Social Responsibilities. AM
Management Journal. 16. p. 312.
8
European Commission (EC) 2011. A Renewed European Union Strategy 2011 -2014 for Corporate
Social Responsibility. COM. p.682, para 3.2
9
Ibid.
10
Cynthia A. William (2018) Corporate Social Responsibility and Corporate Governance. Op. Cit.
p.634.

_____________________________________________________________ 3
________________________________________________________________

Carroll11 also defined CSR depicting a pyramid of responsibilities. At the top of the
pyramid is philanthropy which describes going further than ethics and positively
contributing to social welfare. At the base of the pyramid is economic viability as
the foundation for corporate activity. This is very important as some opponents of
CSR suggest that it is about compromising profits to do good. However, this study
does not support such a contention. This present study supports the position that
CSR entails creating profits without causing undue harm to companies. The next
layer in Carroll’s pyramid comprised the need to comply with relevant law. Even
the oft-cited critic of CSR, Milton Friedman, agreed that companies must play within
the ambit of the legal system – rules of the game. Thus, every company must
necessarily comply with relevant laws relating to commerce, environment,
labour/employment, safety, human rights laws, consumers, creditors and others.

Following the above in Carroll’s pyramid is then the layer of corporate

responsibility. That is, as earlier pointed out, voluntary activities that fall within the
scope of ethical behaviour rather than compliance. According to Carroll, social
responsibilities are those standards, norms and expectations that reflect a concern
for what the society, consumers, employees, shareholders and other stakeholders
regard as fair, just or in keeping with the respect or protection of shareholders’ moral
rights12 This, therefore, is what puts the issue of CSR or CR as the case may be,
squarely in the realm of soft laws and norms as against the hard law.

III. C R I T I C I S M S O F CSR
Although a popular concept with global appeal, CSR is not without its own
oppositions. Some critics point out that CSR may be misused to disguise a
corporation’s real activities in order to gain public support.13 Other opponents
consider CSR as a concept that is contrary to the purpose of a business corporation
- generating profit - and this would make it, in their view, an unlawful use of
shareholders’ resources. Moreover, the legal definition of a corporation does not
entail obligation toward society; only obligations toward its shareholders and the
laws of the country.14 Thus, getting corporations to engage in sustainable
development may not be possible.

On the other hand, the proponents of CSR argue that a corporation is responsible to
society and therefore has to be socially responsible and accountable for all its

11
Carroll A.B. (1999) Corporate Social Responsibility – Evolution of a definitional construction.
Business and Society. 38 (3): pp. 268-295.
12
Carroll A.B. (1999). Op. Cit. p.295.
13
Subhabrata Bobby Banerjee, Corporate Social Responsibility (Cheltenham: Edward Elgar
Publishing Ltd, 2007), 6.
14
Ibid., 10.

_____________________________________________________________ 4
________________________________________________________________

actions.15 They also argue that CSR does not deny the corporation’s prime objective
of generating profit, but requires the corporation to be responsible in doing so.

Full implementation of CSR programs entails reform in a corporation’s human

capital management, investment options, corporate governance, business practices
and other activities to ensure that the interest of its stakeholders continues to be
safeguarded as well. For instance, regarding human capital management, the
corporation must commit itself to a better and safer workplace, fair treatment of
workers, provision of enhancement training, etc. Despite wide global appeal and
acceptance of CSR therefore, its adoption differs from place to place, since local
conditions and authority support differ; therefore, its implementation must
overcome or accommodate local problems and issues.16

CSR requires business corporations to strike a balance between business and social
benefits, and it acts as a check and balance for the corporation’s stakeholders. SRI,
on the other hand, provides investors with criteria of social good to guide their
investment options, while SE mobilizes the investment of an individual’s or a
group’s capital, energy, time and talents in order to maximize social good. Although
various challenges remain, these concepts remain promising. Many parties,
individuals and corporate bodies have committed to these initiatives, leading to a
larger impact in society. It should be clear that these strategies depend upon the
willingness and initiative of individuals and corporations. This willingness is
dependent upon conviction, conscience and a sense of responsibility to the society.
They are all voluntary in nature unless made mandatory through legal and regulatory
mechanisms.

U N DE R S T A N D I N G CSR F R OM T HE I S L AM I C P E RS PE C T I VE
Having understood the concepts of CSR from various Western perspectives, it is
pertinent to understand its parallel or similitude under the shari’a. CSR is not alien
to the Islamic religion, as numerous Islamic principles support its nuances and
implementation. However, it is considered as part and parcel of the human role of
khalifah (vicegerent) and servant of God, whereby humans are charged with the duty
of managing the earth and its inhabitants according to the rules of God (shari’a).
Shari’a entails human compliance to the Islamic system of belief, morality and
dealings, which all support CSR principles and permissible initiatives. Thus, the
Islamic view on CSR is more comprehensive and holistic, since Islam encourages

15
Asyraf Wajdi Dusuki, “The Application of the Doctrine of Maqasid Al-Shari’ah to Corporate Social
Responsibility (CSR),” in Proceedings of the International Conference on Islamic Jurisprudence and
the Challenges of the 2l’ Century, Volume 3, (HUM: Kuala Lumpur, 2006), 276.
16
Samuel O. Idowu and Walter Leal Fillo, Global Practices of Corporate Social Responsibility (Berlin:
Springer, 2009), 1.

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humankind to pursue worldly gains and social good as well as rewards from God,
namely success in the worldly life and the hereafter.
(a) The Shari’a Basis of CSR
Generally, the underlying philosophy of CSR is closely related to the concept of
tawhid (Unity of God), from which the important Islamic concepts of vicegerency
(khilafah) and justice or equilibrium (al- ‘adl wal ihsan) are derived. The Quran17
emphasizes this when it says:

Those who remember God standing, sitting and lying down, who
reflect deeply on the creation of the heavens and the earth, (saying):
‘Our Lord! You have not created (all) this without purpose. You
are far above that! so protect us from the torment of the Fire:
(3:191)

The above verse provides a fundamental principle of responsibility and governance,

implying that everything created by God has a purpose and that human beings are
created to be His world’s vicegerents (khalifah). The concept of khalifah is stated in
the Quranic verse that says:

And (remember) when your Lord said to the angels: ‘Verily, I am

going to place khalifah (vicegerent) on earth: (2:30)

Arising from the appointment of human as vicegerent, God constantly monitors and
is involved in human affairs, and He is aware of everything at all times. In addition,
this divine monitoring system will act as the check and balance to ensure that every
human being is discharging his or her duties as prescribed by God. In another verse,
God emphasizes the importance of doing good, which is part of the CSR. He in
effect says:

So, whosoever does good equal to the weight of an

atom shall see it. (99:7)

The principle of tawhid makes it clear that God knows everything and that human
beings are answerable to Him and required to do good; this principle is the
foundation of the CSR model in Islam. In addition to the above verses, many other
verses have a direct or indirect relationship with the issue of CSR. Among them:

17
Abdullah Yusuf Ali’s translation of The Holy Quran (Madinah: King Fahd Holy Quran Printing
Complex, 1987).

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And help one another in goodness and piety. . . (5:2) O you believers!
Do not betray God and the Messenger, or knowingly betray your
trusts. (8:27) O you who believe! Fulfill [your] obligations. (5:1)

CSR AN D C O R PO R A T E G O V E R N A N CE (CG) I N I S L AM I C L A W
To simply put, corporate governance, according to the Organisation for Economic
Corporation and Development (OECD), “…is the system by which business
corporations are directed and controlled”.18 The links between CSR and CG have
overtime become much stronger.19 In 2001 Douglas Branson described the
emergence of a ‘new corporate social responsibility movement, different from
previous efforts because of its convergence with good corporate governance.’20
Similarly, KPMG in a 2011 report on the state of sustainability reporting concluded
that the integration of sustainability or CSR into core business strategy and reporting
was the next major development in the field. Thus, “corporate governance is
gradually becoming a framework for ensuring the public interest in business as well
as structuring the procedures by which a company demonstrates its good citizenship
and commitments to various constituencies.”21

Essentially, there are at least four essential ingredients of CG namely: transparency,

accountability, disclosure and fairness.22 None of these four ingredients is new to
Islam, as they are articulated either in the Quran, the Sunna or in principles
embedded in Islamic law.

Transparency means timely and accurate disclosure on all material matters, such as
financial situation, performance and ownership. The Quran has explained at length
the importance of transparency in carrying out a transaction. For instance, verses
282 and 283 of Chapter Two (Surah al-Baqarah) of the Quran detail a step-by-step
process to be undertaken when carrying out a transaction involving debt:

18
Organisation for Economic Cooperative Development (OECD) (1999) Principles of Corporate
Governance: Paris. The OECD is a foremost influential international and intergovernmental
economic organisation founded in 1960 to set a benchmark for standard setting and provide best
practice recommendations on corporate governance.
19
Alice Klettner (2017) Corporate Governance Regulation: The Changing Roles and Responsibilities
of Boards of Directors. Op. Cit. p.141.
20
Douglas Branson (2001) Corporate Governance ‘Reform’ and the new corporate social
responsibility. University of Pittsburgh Law Review. 62. pp. 605 - 647
21
Gill A.G. (2008) Corporate Governance as Social Responsibility: A Research Agenda. Berkley
Journal of International Law. 26. pp.452- 478. See also KPMG 2011. International Survey of
Corporate Responsibility Reporting.
22
IFSB, Guiding Principles of Corporate Governance for Institutions Offering Only Islamic Financial
Services (Excluding Islamic Insurance (Takaful) Institutions and Islamic Mutual Funds, 16. Accessed
on September 26, 2019, at http://www.ifsb.org/published.php.

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O you who believe! When you contract a debt for a fixed period, write it
down. Let a scribe write it down in justice between you. No scribe should
refuse to write: let him write as God has taught him. Let the debtor dictate,
and let him fear God, his Lord, and not diminish anything of what he owes.
But if the debtor is of poor understanding, or weak, or is unable himself to
dictate, then let his guardian dictate in justice. And get two witnesses from
among your own men. And if there are not two men (available), then a man
and two women, such as you agree for witnesses, so that if one of (the two
women) errs, the other can remind her. And the witnesses should not
refuse when they are called on (for evidence). Do not disdain to write the
debt down, whether it be small or big, for its fixed term: that is more
equitable in God’s sight, more reliable as evidence and more convenient to
prevent doubts among yourselves. But if the merchandise is present and
you hand it over, then there is no sin on you if you do not write it down.
But take witnesses whenever you make a commercial contract. Let neither
scribe nor witness suffer any harm, but if you do (such harm), it would be
a crime on your part. Be mindful of God, and He will teach you. And God is
the All- Knower of each and everything.
And if you are on a journey and cannot find a scribe, something should be
handed over as security, but if one of you entrusts the other, let the one
who is entrusted discharge his trust (faithfully), and let him be mindful of
God, his Lord. Do not conceal evidence: whoever does so have a sinful
heart. And God is All-Knower of what you do. (2:282—3)

The passage above highlights the importance of proper recordkeeping in debt

transactions so that no party involved suffers injustice. The message of these verses
can be extended by analogy to all other transactions and generalized as a
management ethic: the principle of transparency and disclosure in an organization
shall not be compromised.23

The second ingredient of corporate governance is accountability, which means

ensuring that management is accountable to the board and the board is accountable
to shareholders. When discussing the basis of corporate governance, the verses cited
above are sufficient to address the importance of accountability in Islamic teachings.
In addition, Prophet Muhammad was reported in one hadith to have said, “Each one
of you is a guardian, and each guardian is accountable for everything under his

23
Mohd Ma’sum BiIIah, Shari’ah Frameworks of Islamic Corporate Governance. Accessed
September 26, 2019, http://www.appliedislamicfinance.com/sp corporate _governance_2.htm.

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care.”24 In the contemporary context, this tradition implies that all persons involved
in an organization are indeed accountable for all their actions. The level and scope
of accountability are determined by the respective organizational chart.

As for the third ingredient - disclosure - the rules of contracts in Islam emphasize
the importance of full disclosure by the contracting parties. One of the pillars of the
contract in Islam is the existence of the subject matter of the contract, and a condition
for the subject matter is that the contracting parties must know all the details related
to it. For instance, if a person is entering into a sales transaction, the contracting
parties must know the object of sale and all its particulars or the contract may be
void. This requirement is clear evidence of disclosure as a necessity of Islamic
financial transactions. This ingredient can also be extended to organizational
management. At an organizational level, all dealings must be disclosed in detail to
the relevant authority, such as the board of directors or regulators. The absence of
such practice can be considered a violation of shari’a requirements and as such is
considered a sin.

The last ingredient is fairness, which is inclusive of the protection of shareholders’

rights, treating all shareholders including minorities equitably, and providing
effective redress for violations. In this respect, the Quran clearly emphasizes the
principles of fairness and justice, even against one’s enemy, when it says:

O you who believe! Stand out firmly for God and be just witnesses, and
let not the enmity and hatred of others make you avoid justice. Be just:
that is nearer to piety, and fear God. Verily, God is Well Acquainted
with what you do. (5:8)

Thus, a balance must be established between financial profit and public good. The
responsibility to promote and implement CSR is not merely a responsibility to
society; it is, in fact, a fundamental shari’a obligation.25 Therefore, the responsibility
to promote and apply CSR is not discretionary but, to a certain degree, compulsory,
so long as the CSR principles are in line with the shari’a. The taqwa (God-
consciousness) paradigm will motivate prioritization of social good and prevention
of harm, even if financial gains need to be compromised.26

24
Imam Bukhari, Sahih al-Bukhari, Volume 5 (Beirut: Dar Ibn Kathjr, 1987), p. 1996, Hadith 4904.
25
AsyrafWajdi Dusuki. “What Does Islam Say About Corporate Social Responsibility?’ Review of
Islamic Economics 12:1(2008), 14 and 18. See also Rafik Issa Beekun, Islamic Business Ethics (New
Delhi: Goodword, 2004), 27.
26
Dusuki, “What Does Islam Say About Corporate Social Responsibility?’ 19—22.

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The currently instituted shari’a advisory and supervisory bodies should play the role
of promoting CSR application in the Islamic finance industry (IFI). Members ought
to focus not only on meeting shari’a legal requirements but also on upholding the
noble values and objectives of shari’a, such as those invested in CSR concepts. Only
then can it be said that an act or policy is fully shari'a-compliant. Thus, the shari’a
board should have a wider shari’a governance function in the JET.

CSR A ND M A Q A S I D A L - S HA R I ’ A (T HE O B J E CT I V E S O F T HE S H A R I ’ A )
OR T HE M A Q A S I D P A R A D I GM
Understanding how CSR fits into the maqasid paradigm requires an understanding
of the maqasid al-shari’a (objectives of the shari’a) and their underlying principles,
which are realizing benefit (maslaha) and repelling harm (mafaasid).
There are inherent objectives behind the revelation of shari’a, which were explained
by Muslim scholars who analyzed and examined shari’a rules and the texts of the
Quran and the Sunna.27 Various texts of the Quran and the Sunna indicate direct and
indirect purposes of shari’a rulings. The scholars’ findings are not complete, as they
involve the wisdom and secrets behind God’s rules, but the main objectives of
shari’a are securing benefit for the people and protecting them against corruption
and evil.

Scholars of the objectives of shari’a provided many definitions of maqasid. Ibn

‘Ashur defined maqasid as the purpose and wisdom behind the enactment of all or
most of the shari’a rulings.28 Allal al-Fasi defined maqasid as “the end sought
behind the enactment of each of the rulings of the shari’a and the secrets involved29
Imam al-Ghazali detailed the Maqasid al-shari‘a as follows: “The objective of the
shari’a is to promote the wellbeing of all mankind, which lies in safeguarding their
faith, lives, intellect, posterity and wealth. Whatever ensures the safeguarding of
these five serves public interest and is desirable.30

These definitions explain that the objectives of the shari’a are the ends sought by
each of the rulings of the shari’a and the wisdom behind such rulings. The
comprehensive ends include the development of the world and preservation of a
system of co-existence and maintenance of good on earth through the betterment of

27
Mohd Daud Bakar, “To What Extent Have Islamic Banking Practices Realised the Maqasid al-
Shari’ah?” paper presented in hUM International Conference on Islamic Banking and Finance, April
23—25, 2007, Kuala Lumpur, especially at p.2.
28
Muhammad al-Tahir Al-Mesawi, Al-Sheikh Muhammad al-Tahir ibn ‘Ashur Wa Kitabuhu Maqasid
al-Shari’ah al-Islamiyah (PT: Malaysia, 1998): 188.
29
Riyad Mansur Al-Khalifi, “A1-Maqasid al-Shar’iyah wa Atharuha fi Fiqh AlMuamalat Al-Maliyyah,”
Majallah Jami’at al Malik Abdulaziz al Iqtisad al Islami, 17:1 (1425/2004): 12.
30
Al Ghazali, Al-Mustasfa fi ‘ilm al-Usul, Volume 1 (Beirut: Dar Al Kutub Al ‘Ilmiyyah, 1413/1992),
174.

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people, who are obliged to live their lives justly and virtuously and to act and think
for the good of the world.

Thus, scholars need to consider the maqasid of shari’a when deriving legal rules and
providing guidelines for people to conduct their lives according to shari’a. It is
essential that the legal rulings be consistent with the maqasid of shari’a, that is, the
intended purposes behind its laws, especially because the maqasid allow flexibility
in the application of shari’a and highlight shari’a’s dynamism.

C L A S S I FI C A T I O N OF M A Q A S I D AL - S H A R I ’ A
The different injunctions of shari’a aim at protecting the interests of mankind
(masalih) and repelling harm (darar). These objectives of shari’a can be divided
into three categories, namely, the essentials (daruriyyah), the complementary
(hajiyat) and the embellishments (tahsiniyyah).31 All the different injunctions of
shari’a aim at the realization of one or more of these objectives.32

(a) The Essentials (al-Daruriyat)

The essentials are those matters on which the religious and worldly affairs of the
people depend; their neglect will lead to total disruption and disorder and could lead
to an evil ending. These must be protected, whether by the individual or by
government authorities. These values including the five fundamental matters in life,
namely upholding and protecting religion (aldeen), life (al-nafs), dignity or lineage
(al-’ird), intellect (al-’aql) and property (al-mal).

(b) The Complementary (Al-Hajiyyaat)

The complementary interests, or al-hajiyyaat, are a supplement to the five
fundamental matters. They are interests whose neglect leads to hardship for the
individual or community, although it does not lead to the total disruption of normal
life. Examples of such interests in mu’amalat include the permissibility of trading
and other kinds of transactions such as leases (ijara), mudaraba, etc.33

(c) The Embellishments (Al-Tahsiniyyaat)

The embellishments, or al-tahsiniyyaat, are interests whose realization leads to
improvement and the attainment of that which is desirable. The disappearance of
tahsiniyyaat would not interrupt normal life; however, it might lead to discomfort.
Examples of such application in mu’amalat include the prohibitions against selling

31
Al-Shatibi, Al-Muwafaqat, Volume 1 (Dar Ibn ‘Affan, 1997), 20.
32
This classification of the objectives of shari’a into three categories is not explicitly mentioned in
the texts of the Quran and Sunna. However, scholars have deduced this classification based on their
reading and understanding of the general objectives of the shari’a as mentioned in these texts.
33
Al-Shatibi, Al-Muwafaqat, Volume 1, p. 30.

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items that have no material value and the prohibitions against selling public
properties. Scholars have also agreed that the essential interests (daruriyat) shall
take priority over other interests. They are followed by the complementary interests
and lastly by embellishments. This is because the basic and essential interests of
human beings need to be addressed first before attempting to attain higher facilities
or luxuries in life.

U N DE RL YI N G P R I N C I PL E S O F M AQ AS I D A L - S HA R I ’ A
The aim of shari’a is to realize the well-being of humankind, which involves
attaining public good or interest (Maslaha) and preventing harm or evil (darar).
Therefore, it is essential to discuss these two concepts as outlined by the shari’a.

(a) Maslaha (Public Interest)

Maslaha is a legal concept used in Islamic jurisprudence to promote public benefit
and prevent evil. Imam al-Ghazali defined it as the consideration that secures a
benefit or prevents harm and is harmonious with the aims and objectives of shari’a.34
Thus, what constitutes Maslaha (p1. masalih) or public interest cannot be
determined by the unaided human intellect; it must be with the guidance of shari’a.
The legal texts of the Quran and Sunna have identified certain masalih that are
approved or disapproved by shari’a, and shari’a scholars are allowed to make
efforts to identify other masalih which may be acceptable so long as they are not in
contradiction with shari’a.35

The maqasid paradigm has categorized maslaha into three categories to be achieved
according to their priority: essentials, complementaries and embellishments. This
means that even upon achievement of the third-level maslaha, efforts to maintain
the first- and second-level maslaha need to be continued and given emphasis. This
principle can help in corporate decision-making, regarding which objectives should
be given priority in a certain situation or moment. It provides an ethical filter in the
face of conflicting interests, helping to determine which interest should take priority,
as the different degrees of maslaha outline their levels of importance. It also assists
decision-making in CSR initiatives regarding which sector is to be given preference.
Maqasid may require Islamic financial institutions to support activities that bring
benefit and good to the society although this may sometimes involve sacrificing
some of their resources and profits. It also calls for the inclusion of positive
investment portfolios or those that support the SE cause in investment choices,
which may include investments in sectors such as education and health care.

34
Al Ghazali, Al-Mustasfafi ‘ilm al-Usul, 174.
35
. Said Bouheraoua, “Dawabit Al Ta’amul ma’a Mabadi’ Al Maslahah wal Al Darurah fil Mu’amalat
Al Maliyyah Al Mu’asirah,” paper presented in the International Shari’ah Scholar’s Dialogue 2008
on December 14—23, 2008 at Hilton Hotel, Kuala Lumpur, pages 5—6.

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(b) Darar (Prevention of Harm)

Similar to maslaha, what constitutes darar must follow shari’a guidelines. As a
matter of fact, shari’a has outlined various rules on dealing with situations of darar.
They have been justified by certain maxims which show that shari’a places great
emphasis on the prevention of harm and achievement of maslaha. The principles of
maqasid, maslaha and prevention of darar also provide guidelines to CSR
practitioners in decision-making as well as in conflict resolution. Thus, whenever a
subject matter gives rise to benefits and harm at the same time, the prevention of
harm is to be given priority over the attainment of benefit. In CSR, these principles
serve as guidelines for decision-making and should be part of an institution’s
governance policy. They also support the practice of excluding negative, harmful
and illegal investment portfolios as well as the practice of community investing in
SRI. Similarly, they encourage the initiation of SE projects and social welfare
centers that aim to alleviate the problems of disadvantaged members of society.

IV. CSR and Maqasid al-shari’a in Islamic Finance

Now, it is pertinent to discuss CSR from the maqasid paradigm discussed above.
This will, therefore, help to shed light on how the maqasid dimensions can guide the
application of CSR to Islamic finance. Clearly, the objectives (maqasid) of shari’a
allow flexibility, dynamism and creativity in social policy. In the context of CSR,
the realization of maslaha, which is the foundation of maqasid al-shari’a, has to be
seen as a consideration of public interests rather than merely individual interests. It
provides a framework for making decisions and a mechanism for adapting to change,
especially for corporations willing to commit to CSR. In propagating the concept of
CSR, the three categories of maqasid, as prescribed by the scholars and explained
earlier, can be the guiding principles, particularly in giving priority to the areas
related to CSR that should be emphasized. The division of maqasid into daruriyat,
hajiyyaat and tahsiniyyaat creates a framework and a general ethical filter, providing
administrators with three levels of priority to resolve the ethical conflicts that
inadvertently emerge when applying CSR programs and initiatives. The levels also
reflect the different degrees of importance in terms of fulfilment of responsibility.
The essentials constitute the most fundamental responsibilities to be fulfilled, as
compared to the complementary and the embellishment categories. Therefore, as the
priorities move from the level of essentials to embellishments, the impact of
decision-making and the implementation of adequate processes will be less
fundamental, albeit more virtuous, so as to attain social good and wellbeing. It is
assumed that individuals and corporations will strive for the next level of priorities
as soon as the prior level goals have been fulfilled.

In order to illustrate the above argument, we shall analyze the different levels of the
decision-making process based on the above priorities. On the first level of priority

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(the essentials), managers are expected to strive to preserve their stakeholders’

essential needs and the public good in general. For example, under the CSR precept,
IFIs must protect their employees’ basic needs by providing adequate remuneration
and safeguarding their safety and health in the workplace as well as providing
adequate facilities for them to practice their religious requirements. This will reflect
their responsibility to safeguard the values of life and religion. In addition, they must
confine their operations to those that safeguard the above-mentioned essential
values. Accordingly, corporations have a moral and social responsibility to avoid
activities that may cause disruption and chaos in people’s lives, even though such
activities might bring higher profits to the organization.

After fulfilling this level of responsibilities, the priority will move to the second
level, the complementary. Here, it is deemed beneficial to remove difficulties that
may not pose a threat to the survival of the normal order. For example, managers
may want to extend their commitment to social responsibility by offering continuous
training and programs for their employees. The latter is not essential per Se, for
neglecting it does not threaten the employees’ continued existence. However,
assuming such a responsibility fulfils the complementary interest of advancing the
workers’ intellectual capability. In some cases, such an effort may be considered one
of the essentials, particularly if neglecting such an effort might lead to the disruption
of the core function of the organization. For example, Islamic banks must provide
their employees with adequate shari’a training concerning the products offered in
order to ensure that stakeholders are satisfied with the “Islamicness” of the products.

The final level of priority is fulfilling the embellishments. Corporations are expected
to engage in activities or programs that improve public life. Donating to the needy,
offering scholarships to poor students, and providing correct and clear information
regarding all products are some of the examples of CSR commitment with respect
to realizing the goals of this level.

O P PO RT UN I T I E S A N D C HA L L E N GE S
The effort to implement CSR by using the maqasid of shari’a in the Islamic financial
sphere will undoubtedly expose the industry to new challenges, as some reform will
be necessary. However, several opportunities also abound. Enhancing the CSR
initiatives would distinguish Islamic financial institutions as providers of a viable
alternative ethical financial system and deflect the criticism against them. It would
help Islamic financial institutions promote and practice the maqasid of shari’a in a
strategized and structured way. The Islamic finance industry would serve its true
purpose of achieving socioeconomic objectives and responsible and ethical finance.
Although financial institutions are commercial entities, they would also assume
social responsibility and promote the agenda of social welfare and social justice.

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Furthermore, it would also demonstrate that Islamic financial institutions have a

comprehensive governance framework that encompasses ethics and social
responsibility apart from a corporate and shari’a governance framework. All of
these are actually part of Islamic financial institutions’ duties as prescribed by the
shari’a. The objectives of shari’a, as well as the Islamic system of belief, morality
and law of dealings, should be the main reference in the governance structure, thus
creating a holistic and comprehensive governance framework. Islamic financial
institutions would be recognized as agents of change in the society, playing vital
roles in the socio-economic and social welfare sectors.

One crucial element for realizing the Islamic finance industry’s initial promise is the
challenge of developing Islamic microfinance. Its conspicuous absence or
underdevelopment highlights the IF industry’s distance from its supposed social
role, as Islamic financial institutions should not only be involved in philanthropic
activities but should also should be active in providing microfinance to the public.
Without microfinance services, Islamic finance will be deemed incomplete. Some
have suggested that a new form of Islamic bank needs to be established: Islamic
social banking.36 A number of studies have been conducted, in which researchers
have proposed various models to implement Islamic microfinance; indeed, it is high
time that the viability of these models was assessed and serious effort be made to
introduce viable Islamic microfinance services.37 Offering Islamic microfinance is
not impossible, for the early history of the Islamic finance industry witnessed the
initiative of Mit Ghamr Bank in Egypt, which provided Islamic microfinance
services to its customers.

Apart from that, Islamic finance must be wary of bad corporate governance. We
have already seen examples of governance failure in IFI, the Dubai Islamic Bank
(DIB) cases being ready examples.38 Islamic financial institutions need to instil both
a strong shari’a governance framework as well as a CSR framework within their
structures. The incorporation of CSR with Islamic specifications should assist in

36
Mehmet Asutay, “Conceptualisation of the Second Best Solution in Overcoming the Social Failure
of Islamic Finance: Examining the Overpowering of Homoislamicus by Homoeconomicus,” hUM
Journal of Economics and Management 15:2 (2007): 185.
37
Asyraf Wajdi Dusuki, “Banking for the Poor: The Role of Islamic Banking in Microfinance
Initiatives,” Humanomics: International Journal of Systems and Ethics 24:1, 55—61.
38
See various news report on the cases such as “Jail sentences dropped in Islamic bank
embezzlement case” accessed on November 23, 2005, http://archive
.gulfnews.com/articles/0l/08/02/23618.html; “Closing in on Baba,” published in The Miami Times
on April 8, 1999; Simon Kerr, “Scandal-hit Dubai Islamic Bank seeks fresh start” The Financial
Times, accessed October 3, 2019,
http://www.thepeninsulagatar.co/Display_news.asp?section=Business_News&subsection=market
+news&month October2019&fiIeBusiness_News201903l2 91 13.xml.

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ensuring good governance of Islamic financial institutions. Understanding and

internalizing the taqwa paradigm would restrain IFI staff from transgressing Islamic
law or its code of ethics.

It has been emphasized on many occasions that shari’a advisory and supervisory
boards will need to play a central and significant role in implementing the objectives
of shari’a, the concept of CSR, as well as the governance of Islamic financial
institutions. In considering a product’s endorsement, they should examine the social
impact of the product, not merely the economic impact or its legal status under the
shari’a. They also need to use their utmost diligence to assess and uphold the
maslaha that they think needs to be given priority when confronted with conflicting
and competing interests.39 They also have a responsibility to guide Islamic financial
institutions to fulfil the true spirit and objectives of shari’a and not to merely comply
with the letter of Islamic law. Thus, there is a need for a paradigm shift and change
in the practice of the shari’a advisory and supervisory boards. Indeed, it is worth
considering the appointment of permanent shari’a members who will dedicate their
full time and thinking to supervising and shaping the institutions to fulfil the true
functions the shari’a demands of them.

C O NC L U S I ON
The discussions in this paper have clearly illustrated the close link between maqasid
paradigm as the foundation of the idea of social responsibility in Islamic finance, in
a manner that is close or similar to the western conception of the same idea (CSR).
Also, the paper has demonstrated how Islamic finance can benefit from the western
idea of CSR and corporate governance to attain their core shari’a objectives, and as
well compete favourably for market support and patronage. However, the paper
clearly pointed out that the concept of CSR in the western understanding will still
require some modifications before they can be said to comply completely with
shari’a idea of the same or similar subject. This is simply because shari’a has a more
holistic and comprehensive, if not far-reaching, perspective of the subject, from
purely religious obligation as against the western conception of it as a mere
voluntary social utility. Finally, the paper concluded that while the implementation
of CSR within the context of the maqasid paradigm will readily come with
obstacles, the underlying benefits of such implementation far outweighs the burden
and limitations of the obstacles. However, overcoming the obstacles will require a
paradigm shift and dynamism in the practice of the shari’a advisory and supervisory
boards. The boards must be prepared to adapt and adjust their expertise to solve
present problems without necessarily compromising the dictates of the sharia’.

39
AsyrafWajdi Dusuki and Abdulazeem Abozaid, A Critical Appraisal on the Challenges of Realizing
Maqasid al-shari’ah in Islamic Banking and Finance (Malaysia: International Shari’a Research
Academy, 2008), 22—23.

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A N I N T E R R O G A T I ON O F T HE S PE C I AL R E CO VE RY P OWE RS O F
A S S E T M A N A GE M E N T C OR P OR AT I O N OF N I GE RI A : T RE ND S ,
A M E N D M E N T S A N D C ON S T I T UT I ON AL I T Y 40
BY
K U N L E A DE G OK E (SAN)

ABSTRACT
Failure of banks in Nigeria in recent past has been occasioned
largely by default of borrowers to repay their loans. To stem this
tide, the government has established the Asset Management
Corporation of Nigeria (AMCON) with special powers to assume
liabilities of banks by way of acquisition of eligible bank assets
towards providing liquidity to keep the banks afloat. This paper
examines the special powers of AMCON as a bad loan vehicle and
recovery of such loans with special innovations inbuilt in the law
to save the vehicle itself. It equally appraises recent amendments
to AMCON’s principal Act and query if the over-protective efforts
of the legislature is not bordering on unconstitutionality as
fundamental rights are being or likely to be infringed.

I N T R O DU CT I O N
Banks and other financial institutions provide the tonic for vigorous
commercial activities through lending.41 Lending lies at the core of the banking
industry and a bank that does not engage in lending transactions may soon find itself
out of business.42 However, the subject of loan recovery has always been germane
to continuous existence of banking and economic transactions in every society. It
becomes more pertinent when juxtaposed with the fact that bank loans, by their
nature, are meant to be paid and failure to so do has far reaching effects on general
growth and development in the economy. To commercial banks, such bad debts
certainly pose existential threat since one of their key functions is granting loans to
customers.43

40
Kunle Adegoke, (LLB, LLM, BL) Managing Partner, Kunle Adegoke & Co. Ikeja, Lagos, Nigeria. Tel.
08139291010 Email Address: krad eg ok e@ g ma il .co m ;i n fo @ku n l ead eg ok ean d c o.c om

41
SMITH, I. O. Nigerian Law of Secured Credit, Publications (Nigeria) Limited, 2001, pg. 1.
42
OLUWAGBAMI, D. O., Securities Available for Bank Lending and Their Perfection under Universal
Banking Scheme, contained in Contemporary Issues in the Administration of Justice: Essays in
Honour of Justice Atinuke Ige, Treasure Hall Konsult, p. 235.
43
http://iproject.com.ng/banking-and-finance/accessed on 22-12-2016.

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The conventional methods of loan recovery by banks are fraught with a

myriad of legal and systematic challenges such as lengthy delay in court actions,
high cost of litigation, procedural bottlenecks, among others. These problems have
become more alarming when related to the fact that the present economic challenge
in Nigeria coupled with the effects of the 2019 novel coronavirus (Covid-19) has
taken its toll on the capacity of borrowers to adhere to loan agreements. A report
from the Central Bank of Nigeria some years back revealed that banks are
demanding more collateral from firms seeking loans as default rates had worsened44
and many banks had run into liquidity problems that were irredeemable. It was the
problem of failed banks that characterised the 1990s which led to the promulgation
of the Nigerian Deposit Insurance Corporation (NDIC) Act. 45 The NDIC was
established to insure all deposit liabilities of licensed banks and other deposit-taking
financial institutions to engender confidence in the Nigerian banking system.46

In addition to other responses by the Nigerian government to the challenges

faced by the banking sector in the recovery of non-performing debts as well as the
need to forestall the ripple effects on the macro economy such as the recapitalisation
and merger of banks, the Asset Management Corporation of Nigeria (AMCON)47
was also created. Of recent, the debt portfolio being managed by AMCON is said to
be in excess of 5.4 trillion Naira.48 The arrival of AMCON was with special powers
of recovery of loans to ensure that the bad loan vehicle itself does not get submerged
under the heavy weight of bad loans the operation of which system are considered
below.

AMCON AND SPECIAL LOAN RECOVERY POWERS

AMCON came into existence by virtue of the Asset Management
Corporation of Nigeria Act, 2010 (the “Act”) which came into force on the 19th day
of July, 201049 for the purpose of efficiently resolving the non-performing loan
assets of banks in Nigeria and for related matters. To further strengthen the

44
The Punch, Wednesday, December 7, 2016, page 28.
45
Cap. N102, Laws of the Federation of Nigeria, 2004.
46
See Section 3 of Cap. N102.
47
See Section 1 of the Asset Management Corporation of Nigeria Act, 2010.
48
See AMCON News Room, Reps to Probe AMCON’s N5.4tr Debt Profile available online:
h ttp s : // a mcon .c o m.n g/n e ws -s tory .p h p ?n = 45 accessed 13/06/2020..
49
Asset Management Corporation of Nigeria Act, 2010.

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________________________________________________________________

corporation, its enabling Act has experienced two amendments in 201550 and 201951
respectively.

The body was modelled after organisations such as Ireland’s National Asset
Management Agency Ltd and Korea Asset Management Corporation.52 Upon its
inception, AMCON was funded by the Federal Government of Nigeria zero coupon
bonds and the Central Bank of Nigeria with full state guarantee of its liabilities.53 It
is, according to the Court of Appeal, “a key stabilising and revitalising tool
established to revive the financial system by efficiently resolving the non-
performing loan assets of the banks in the Nigerian economy.”54

By section 5 of the Act, the functions of the corporation include, inter alia,
to acquire eligible bank assets from eligible financial institutions in accordance with
the provisions of the Act; hold, manage, realise and dispose of eligible bank assets55
(including the collection of interest, principal and capital due and the taking over of
collateral securing such assets) in accordance with the provision of the Act.

Thus, AMCON has the power to acquire bad loans from banks, replenish the
stocks of such banks by way of liquidity and enable the banks to continue trading
thereby sustaining the confidence of the public in the banking sector and sustaining
the economy. In order to be able to meet its statutory functions and obligations, the
body, by Section 6, is vested with powers, among others, to issue bonds or other
debt instrument as consideration for the acquisition of eligible bank assets; enforce
any security, guarantee, indemnity; and compromise any claim or forgive or forbear
any debt or other obligation owed to the corporation in respect of a specified class
of eligible bank assets. In order to avoid turning this body into another receptacle of
non-performing loans, certain statutory aids have been provided for recovery of such
bad loans which shall be considered as follows:

Dispensing with Registration Requirements of Security Interests

50
Asset Management Corporation of Nigeria (Amendment) Act No. 7, 2015 which came into effect
on the 26th day of May, 2015.
51
Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019 which came into effect
on the 28th day of June, 2019.
52
See PM News, Wednesday July 2019, AMCON warns: 350 VIPs owing N5.5 trillion pose grave
risk to Nigeria available online: https://www.pmnewsnigeria.com/2019/07/24/amcon-warns-350-
vips-owing-n5-5trillion-pose-grave-risk-to-nigeria/ accessed on 17 June, 2020.
53
This Day Newspaper, Thursday 22 December, 2016, page 1.
54
See Ecobank Nig. Plc. v. Ngonadi [2016] 22 WRN 56 at 72 lines 40 – 45.
55
Section 61 of the AMCON Act 2010 defines eligible bank assets to mean assets of eligible
financial institutions specified by the Governor as being eligible for acquisition by the Government
pursuant to section 24 of the AMCON Act, 2010.

_____________________________________________________________ 19
________________________________________________________________

A big relief is the provision of Section 45 of the Act, 2010 which,

“notwithstanding anything contained in any law”, relieves the corporation from
having to register its interest in any eligible bank asset used as security for loan in
order to enjoy the rights of a registered owner of the asset. Thus, for example, the
provision of Section 197(1) of the Companies and Allied Matters Act 56 requiring
registration of security interests with the Corporate Affairs Commission by
corporate entities would not apply to AMCON by virtue of Section 45 of the Act
and the voidness that normally trails such transactions shall not be applicable to
security interests held by AMCON. The same thing applies to the provisions of the
Land Instrument Registration Law of the various states in Nigeria which require
registration of instruments transferring land before they could be admitted in
evidence.57 Thus, admissibility of such documents evidencing acquisition of
mortgage properties as security for an eligible bank asset by AMCON is not affected
by non-registration.

Further, by Section 12 of the AMCON (Amendment No. 2) Act, 2019, a new

sub-section (2) was introduced by which “a certificate of judgment obtained in a
proceeding” by the corporation “constitutes a registrable instrument of title of
AMCON’s interests in all land registries in the Federation.” This is provided that
the corporation may, at its discretion, elect to register any interest capable of
registration.58

Inapplicability of Statute of Limitation

Statutes of limitation prescribe time within which an action can be

commenced and an action is, therefore, said to be statute barred when it is
commenced outside the limitation period as stipulated by the relevant statute.
According to the Court of Appeal in Charanchi v. Civil Service Commission, Kano
State & Ors.59

56
Cap. C20, Laws of the Federation of Nigeria, 2004.
57
See, for instance, Sections 2 and 30 of the Lagos State Land Registration Law, Cap. L41, Laws of
Lagos State, 2003.
58
See the proviso to Section 45 of the principal Act.
59
(2002) LPELR-12269(CA) page 36. See also Egbe v. Adefarasin (1987) 1 SCNJ 1 @ 17; Orire v.
Idomi (2018) LPELR-46119(CA) 1 @ page 17; Hassan vs. Aliyu (2010) ALL FWLR (Pt. 539) 1007 at
1037.

_____________________________________________________________ 20
________________________________________________________________

A cause of action is said to be statute barred when no proceedings can be

brought in respect of it because the period laid down by the Limitation Act has
lapsed. When an action is statute barred, a Plaintiff who might otherwise have had a
cause of action loses the right to enforce the cause of action by judicial process
because the period of time laid down by the Limitation Law for instituting such an
action has elapsed.

A plaintiff who commenced an action outside the limitation period is said to

have lost his cause of action. For an action for recovery of debt, the statutes have
stipulated a period of six years since the accrual of cause of action for instance
Section 8(1)(a) of the Limitation Law of Lagos State. Under the previous Section
35(5) of the Act, 2010, action for recovery of loan by AMCON could be statute
barred but time would only begin to run for the recovery of such loan from the date
AMCON takes over the eligible bank asset from the financial institution who gave
out the loan to the debtor. In other words, notwithstanding that the loan might have
become a bad debt in the hands of the financial institution, the accrual of cause of
action shall be computed against ACMON from the date it acquired the eligible bank
asset. This provision was considered in Myeko Nig. Ltd. v. AMCON60 in which it
was held that the accrual of cause of action would commence from the date of
acquisition of the eligible bank asset and an action by AMCON to recover such debt
must be done within six years of acquiring the eligible bank asset.

However, by the new Section 35(5) of the AMCON (Amendment No. 2) Act,
2019, the position of the law has changed and the corporation has been given a
stronger platform to perform its duties as there is no more limitation of action against
it any more. The relevant section of the amendment is reproduced below:

Any statute of limitation of a State or Federal Capital Territory or any like

statute or rule or practice directions of any court limiting the time within which an
action may be commenced does not apply or operate to bar or invalidate any claim
brought by the Corporation in respect of an eligible bank asset or brought to recover
a debt or enforce any security or obligation of a guarantor or surety in connection
with an eligible bank asset.

Therefore, no matter when the original loan transaction was contracted, the
cause of action of AMCON does not become statute barred. It means that where the
debt has even become statute barred in the hands of the financial institution from
whom AMCON purchased the eligible bank asset, AMCON’s right of action lies in
perpetuity and time does not run against it.

60
(2019) LPELR-47643(CA) Pages 19 – 23.

_____________________________________________________________ 21
________________________________________________________________

Custody and Possession of Debtor’s Property

By Section 49(1) of the Act, 2010 (as amended61), where the corporation has
a reasonable cause to believe that a debtor is the bona fide owner of any movable or
immovable property, it may apply to the Court by motion ex parte for an
interlocutory order granting possession of the property to the corporation. AMCON
is allowed to obtain such an ex parte order before commencing debt recovery action
or at any time after the time of filing such an action and before or after the filing of
action the originating process by which such an action is commenced on the debtor
company. The order shall be made pending the hearing and determination of the debt
recovery action to abide the decision in such action. The above order made is to
enure till judgment or a final determination of the action, unless expressly
discharged by the Court. The above provision is notwithstanding anything to the
contrary in any enactment.62 This puts such defaulting debtor under pressure and the
tendency to use the usual judicial delays to frustrate loan repayment is minimised.

The implication of the above is that ordinarily, ex parte orders under the law
that are normally said to be interim and do not last beyond 14 days or pending the
hearing and determination of the interlocutory applications of the plaintiff63 do not
suffer such limitation under the AMCON Act. In A.G. Fed. v. Fagunwar
Chikoyi64, the Court of Appeal held that “when an interim order of injunction is
made pending the determination of all applications before the court, once all the
applications before the Court are determined or if an interlocutory order of
injunction is made the interim order of injunction would cease, lapse or end on the
date the applications are determined or subsequent order is made”. Equally, under
the previous Sections 49 and 50 of the 2015 first amendment to the Act, an action
was supposed to be commenced within 14 days of the corporation obtaining an
interim order of possession of the debtor’s properties. Although where the
corporation failed to commence such an action within 14 days, it does not invalidate
the action but only made the interim order to lapse. This position was upheld by the
Court of Appeal in Josco AG Global Resources Ltd. & Anor. v. AMCON.65

In essence, the AMCON (No. 2) Act, 2019 has circumscribed this position
of the law and interim orders are now meant to last like interlocutory orders until
judgment is delivered. The stipulation of 14 days within which to commence an
action has been removed from the new Sections 49 and 50. A disturbing point to
61
As substituted by Section 15 of the AMCON (Amendment No. 2) Act, 2019.
62
See Section 49(3) of the AMCON Act.
63
A.G. Fed. v. Fagunwar Chikoyi [2006] 18 NWLR (Pt. 1010) CA 51
64
[2006] 18 NWLR (Pt. 1010) CA 51
65
(2018) LPELR-45637(CA) 45 – 49 paras F-D.

_____________________________________________________________ 22
________________________________________________________________

raise here is whether such ex parte order obtained behind the debtor would not
amount to an infringement of the right of the debtor to fair hearing as the ex parte
order obtained in his absence may last till eternity considering the nature of our court
proceedings. This is considered below.

Right to Freeze a Debtor’s Account

By Section 50(1) of the AMCON (Amendment No. 2) Act, 2019, the
corporation has the power to apply ex parte to the Court for an interlocutory order
freezing any bank account of a debtor in which it reasonably believes the debtor has
funds. This application may be made before, or at time of filing of action for debt
recovery or other like action or at any time after the filing of action, and before or
after the service of the originating process by which such action is commenced on
the debtor”.66 Furthermore, under the new Section 50(2) of the Act,
“Notwithstanding anything to the contrary in any enactment, an order made under
subsection (1) shall subsist till judgment or a final determination of the action,
unless expressly discharged by the Court.”

This provision is an innovation meant to compel a debtor or debtor company

to meet its obligations without much room to employ legal stratagems to frustrate
the recovery proceedings which is the case in other usual debt recovery methods67.
The constitutionality of this provision is also in doubt and shall be considered below.

Simplification of Bankruptcy Proceedings

Another milestone achieved by the Act is the simplification of the
bankruptcy proceedings contrary to the proceedings contained in the Bankruptcy
Act68 which complexity has resulted in bankers ignoring this tool in Nigeria and
many other jurisdictions in recovery of loans.69 This dreaded complexity probably
accounts for why there are hardly judicial decisions in which bankruptcy has been
pronounced upon in Nigeria. By the new Section 51(1) of the AMCON (Amendment
No. 2) Act, 2019, the corporation, having issued a 90-day notice to a debtor
demanding payment of a liquidated sum, can, by mere originating summons
commence bankruptcy proceedings against a debtor. The Court shall make a
receiving order against the debtor except where he is able to prove that he is not
owing any liquidated sum at all or that he has a counter-claim, set off or cross-
demand which equals or exceeds the liquidated sum owed to the corporation.

66
See Section 16 of the AMCON (Amendment No. 2) Act, 2019 substituting Section 50 of the
principal Act with a new Section 50(1).
67
See Section 50 of the AMCON Act, 2010.
68
See Section 1, Bankruptcy Act, Cap. B2, Laws of the Federation of Nigeria, 2004.
69
M S Siddiqui, “Bankruptcy Act Is Ignored by Bankers” published in
http://dailyasianage.com/news/39302/bankruptcy-act-is-ignored-by-bankers accessed on
09/06/2020 at about 4.06 pm.

_____________________________________________________________ 23
________________________________________________________________

In actual fact, the provision of Section 51 of the Act is a complete abrogation

of the Bankruptcy Act in so far as proceedings relating to the corporation is
concerned. It is, therefore, not necessary for the debtor to have committed a
bankruptcy act nor is it necessary for the Corporation to file a bankruptcy petition
or meet any of the conditions precedent for the grant of receiving order contained
under the Bankruptcy Act before the court can grant such receiving order sought by
the Corporation.70 A receiving order made under the AMCON (Amendment No. 2)
Act, 2019 is deemed to have been made and shall have full effect and force as
receiving order made under the Bankruptcy Act and notwithstanding the provisions
of the Bankruptcy Act, the court may adjudge the debtor bankrupt.

It is believed that this new provisions of Section 51 of the Act shall assist the
corporation to speedily recover loans owed by recalcitrant debtors as an average
debtor will detest the consequences of bankruptcy and may want to find means of
payment to avoid being adjudged bankrupt. Such consequences include
disqualification from seeking any elective office in Nigeria, disqualification from
being appointed to or sitting on a statutory corporation or company’s governing
board, disqualification from being appointed as justice of the peace, trustee of a trust
estate or being admitted to practice any profession for the time being regulated by
law.71

Lifting the Veil of Incorporation

Right from the days of Salomon v. Salomon Co Ltd,72 the doctrine of
corporate personality, which separates the identity of the company from its
shareholders and directors, has been the cornerstone of company law. Thus, limited
liability companies are only liable to the extent of their assets and there is immunity
in favour of the shareholders and the directors from being personally liable for the
company’s debts.73 However, to avoid certain acts of the directors being traded off
as belonging to the company which will constitute using the corporate personality
to an untoward advantage, the law allows the veil of corporate personality to be lifted
thereby resulting in personal liability of the directors and shareholders. Such

70
See the new Section 51 as substituted under Section 18 of the AMCON (Amendment No. 2) Act,
2019.
71
See Section 126 of the Bankruptcy Act, Cap. B2, Laws of the Federation of Nigeria, 2004.
72
[1897] AC 22, HL; see also, Bligh v. Brent (1837) 2 Y & C Ex. 268; Short v. Treasury Commissioners
(1948) 1 KB 116; Fulham Football Club Ltd v. Cabra Estates Plc (1994) 1 B. C. L. C. 363, 379; Marina
Nominees Ltd. v. Federal Board of Inland Revenue (1986) 2 N.W.L.R. 48; Habib Nigeria Bank
Limited v. Ochete [2001] FWLR (Pt. 54) 384; CDBI v. COBEC (Nigeria) Ltd [2004] 13 NWLR (Pt. 948)
376; Mezu v. Co-operative Commerce Bank & Anor (2013) 12 W.R.N. 1, 4.
73
See Akeem v. FRN (2018) LPELR-43892(CA) pages 22 – 23.

_____________________________________________________________ 24
________________________________________________________________

exceptions created, as listed by Farrar74 are agency,75 fraud,76 group enterprises,77

trusts,78 tort,79 enemy,80 tax,81 the companies legislation and other legislations.82

By the AMCON (Amendment No. 2) Act, an example of other legislations

creating an exception to the doctrine of corporate personality came into being. By
Sections 51, 52 of AMCON (Amendment No. 2) Act, 2019, which grants special
powers to AMCON to commence bankruptcy proceedings, winding up proceedings
and Section 53 by which heads of courts are to designate one or more courts to
exclusively hear and determine AMCON’s civil causes or matters, the recovery
powers of AMCON are sought to be strengthened not only against the borrower or
debtor company but against its guarantors or sureties, directors, shareholders of the
borrower or of any corporate entity that guaranteed the loan for the borrower and
companies and entities 50% or more of whose capital is owned or controlled jointly
or otherwise by one or more of the borrower, guarantors or sureties, directors and
shareholders as are listed above. The conclusion above is inescapable as the new
Section 50B of the 2019 (Amendment No. 2) Act defines the term “debtor” and
“debtor company” to include those listed above. The implication is that the directors,
shareholders of the borrower company can be proceeded against under the recovery
powers of AMCON. The same goes for the directors and shareholders of any
corporate entity that guaranteed the loan for the debtor or debtor company. And like
in the case of group enterprises, AMCON can proceed against all companies and
entities 50% or more of whose capital is owned or controlled jointly or otherwise by
the borrower, all guarantors or sureties of the borrower, all directors and
shareholders of the borrower, all directors and shareholders of any corporate entity
that guaranteed the borrower.

74
Farrar’s Company Law, Fourth Edition (J.H. Farrar & B.M. Hannigan) Butterworths, 1998 pages
69 – 78.
75
[1939] 4 All ER 116; Hotel Terrigal Pty Ltd. v. Latec Investments Ltd. (No. 2) [1969] 1 NSWLR 676.
76
Oyebanji v. State (2015) LPELR-24751(SC) pages 41 – 42; Alade v. ALIC (Nig.) Ltd & Anor. [2010]
19 NWLR (Pt. 1226) 111 @ 130 E – H & 142 C – E; FDB Financial Service Ltd. v. Adesola [2002] 8
NWLR (Pt. 668) 170 @ 174; Adeyemi v. Lan & Baker (Nig.) [2007] 7 NWLR (Pt. 663) 33 @ 51.
77
DHN Food Distributors Ltd. v. London Borough of Tower Hamlets [1976] 3 All ER 462, CA; Re a
Company [1985] BCLC 333 CA.
78
Abbey Malvern Wells Ltd. v. Ministry of Local Government and Planning [1951] Ch 728.
79
There have been an increase in the use of tort to bypass Salomon’s case which includes
headings like inducing breach of contract, deceit and conspiracy. See Farrar, op. cit. page 75. See
also the British Columbia Court of Appeal case of BG Preeco I (Pacific) Coast) Ltd. v. Bon Street
Holdings Ltd. (1989) 60 DLR (4th) 30.
80
Daimler Co Ltd v. Continental Tyre and Rubber Co. (Great Britain) Ltd. [1916] 2 AC 30, HL.
81
See Farrar, op cit. page 75.
82
For other legislations creating an exception to corporate personality, see the dictum of Lord
Diplock in Dimbleby & Sons Ltd v. National Union of Journalists [1984] 1 WLR 427 @ 435 B-G, HL.

_____________________________________________________________ 25
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It is submitted that this is a powerful way of ensuring that the loan is

recovered from all sources which may expose persons remotely connected to the
loan to liability. Thus, investors are advised to be careful in taking shareholding of
companies the borrowing tendency and repayment capacity of which they are not
sure otherwise, they may incur debt liability from which they never benefited and
may be exposed to bankruptcy proceedings if the corporation opts for same.

Acceleration of Recovery Proceedings

Cognisant of the fact that cases, whether commercial or otherwise, last
several years in court, the legislature has provided for special duties for the heads of
all Courts83 to designate in their respective jurisdictions, one or more courts
exclusively for hearing and determining civil causes or matters relating to the
eligible bank asset acquired by AMCON.84 Such Judge designated shall hear the
corporation’s cases to the exclusion of any other matter and within six months from
the date of coming into effect of the 2019 Act in the case of existing cases, and in
the case of new matters, six months from the date of filing. Further, Section 53(5)
and (6) of the 2019 Act stipulates 60 days each for both the Court of Appeal and the
Supreme Court to determine appeals involving the Corporation and in priority to all
other appeals.

A relevant question is where the Court fails to conclude the matter within the
time stipulated by the Act, does it lose the jurisdiction to continue hearing the matter
in so far as the statute has not made provision for extension of time to so conclude
such cases? This becomes pertinent in view of the decisions of the Supreme Court
in cases like Ogboru v. Uduaghan85; Abubakar v. Nasamu (No. 1),86 where Section
285(6) and (7) of the 1999 Constitution of the Federal Republic of Nigeria (as
altered) were given mandatory effect as to invalidate any judgment of the Court of
Appeal or Supreme Court delivered outside 60 days stipulated by the Constitution
for hearing and determination of election petition appeals. The apex Court, in
Abuabakar v. Nasamu87 further stated, that when such time limitation is provided
even by a statute, no court can extend time except the statute itself so provides. The
implication is that Section 53(3), (5) and (6) of the 2019 Act shall have mandatory
effect and cases exceeding 60 days stipulated shall be regarded spent and struck out.

83
The word “Court” is defined in Section 23 of the 2019 Act amending Section 61 of the Principal
Act to mean “Federal High Court, the High Court of a State or the High Court of the Federal Capital
Territory or other superior court exercising original jurisdiction as may be applicable, save that for
the purpose of Sections 49 and 50(1) of this Act, the “Court” means the Federal High Court.”
84
See the new Section 53(1) of the 2019 Act.
85
[2012] 11 NWLR (Pt. 1311) 357 page 384 – 385 paras G – A
86
[2012] 17 NWLR (Pt. 1330) 523 at 444.
87
(supra) at 459 - 460 paras H – A. See also the decisions of the Supreme Court in Toyin v. Musa
[2019] 9 NWLR (Pt. 1676) 22 SC and Toyin v. PDP [2019] 9 NWLR (Pt. 1676) 50.

_____________________________________________________________ 26
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It is suggested that, considering the nature of proceedings in our courts which are
susceptible to delays, the draughtsman should reconsider these provisions so as to
provide for the power of the Court to extend time for determination of such cases
otherwise many cases filed by the Corporation shall become spent before they are
determined. Another implication is that where such cases are struck out for being
spent, interim orders obtained cannot be preserved in favour of the Corporation.

Miscellaneous
A major provision in the Act is Section 48 by which the corporation can act
as or appoint a receiver for a debtor company whose assets have been used as
security for an eligible bank asset. A peculiar nature of receivership under AMCON
Act is that the powers of the receiver herein extend over all the assets and the entire
undertaking of the debtor company notwithstanding that only a part of the debtor
company’s assets was charged88.

Aside from the peculiar receivership created in the Act, notwithstanding

anything to the contrary in any enactment or rule of law, the corporation may compel
a financial institution to disclose relevant information relating to balances of a
debtor89 failure of which attracts N1,000,000.00 fine and N50,000.00 fine for each
day of default90 and the director of the defaulting financial institution may be liable
to three years imprisonment91. Furthermore, the corporation is empowered to
publish in newspapers a list of recalcitrant debtors92 and furnish a copy of the
newspapers to all government procuring agencies93 who shall not award any contract
to or conduct business with or make any payment to such recalcitrant debtor94.

To cap it all, the Corporation is imbued with the power to prosecute offences
contained in the Act through legal practitioners appointed for that purpose only
subject to the provisions of section 174 of the Constitution95. It is undoubtedly
certain that these are far-reaching powers and privileges enjoyed by the corporation
in its daunting task of ensuring outstanding debts that would have crippled the
banking sector and the economy of the nation are collected from difficult debtors.

88
See Section 48(3) of the 2019 Amendment Act.
89
Ibid, Section 50A(1)
90
Ibid Section 50A(2)
91
Ibid, Section 50A(3)
92
Ibid, Section 50(B)(1)
93
Ibid, Section 50(B)(2)
94
Ibid, Section 50(B)(3)
95
Section 55(1) and (2) of the 2019 Amendment Act.

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SOME ‘UNCONSTITUTIONAL’ PROVISIONS OF AMCON ACT

Notwithstanding the benefits of establishment of AMCON and the
commendable legislative steps taken to protect it from suffocation by recalcitrant
debtors, it seems the legislature is bending the stick too far in making the corporation
over-protected to the extent of running afoul of the Nigerian grundnorm and
infringing fundamental rights. It is certain that this will be counter-productive as the
Courts have started yanking off some provisions of the Act (as amended). We shall
consider some of these provisions hereunder.

Pre-action Notice
By Section 12 of the 2019 amendment to the Act which amends Section
43(2) of the Principal Act, the corporation is entitled to 90 days pre-action notice
before an action is commenced against it. Pre-action notices have been held to be
mandatory and failure to serve same where prescribed by statute puts the jurisdiction
of the court in abeyance until compliance. In the case of Nnonye v. Anyichie,96 it was
held by the Supreme Court that non-service of a pre-action notice puts the
jurisdiction of the court on hold pending compliance with the pre-condition.
However, on the other hand is the provision of Section 2 of the Public Officers’
Protection Act97 which voids an action commenced against a public officer more
than three months after the cause of action had arisen the effect of which as a statute
of limitation, robs the court of jurisdiction in respect of such an action. 98 AMCON
is certainly a public officer by virtue of decisions like Ibrahim v. Judicial Service
Commission99 where the term “public officer” was held to include both natural and
artificial persons like government departments, offices, bodies and institutions
created by statute or the Constitution. It is submitted that the two statutes cited above
are evidently in conflict.

It is further submitted that the effect of the two statutes is to make it

impossible for an action to be instituted by any prospective litigant against the
corporation. This will run in conflict with Section 6(6)(b) of the 1999 Constitution
of the Federal Republic of Nigeria (as altered) which extends all judicial powers “to
all matters between persons, or between government or authority and to any person
in Nigeria, and to all actions and proceedings relating thereto, for the determination
of any question as to the civil rights and obligations of that person.” Where a statute
is in conflict with the Constitution, it is certain that the statute shall be nullified100.

96
(2005) 1 SC (Pt. II) 96 at 103 and 104. See the cases of Barclays Bank Ltd. v. Central Bank of
Nigeria (1976) 6 SC 175; Eze v. Ikechukwu [2002] 18 NWLR (Pt. 799) 348.
97
Cap. P41 LFN, 2004, (hereinafter referred to as “POPA”).
98
Ibrahim v. Lawal & Ors. (2015) LPELR-24736(SC) (Pp. 35-39, paras. A-B).
99
[1998] 14 NWLR (Pt. 584) 1 at 38 paras A – G.
100
See Section 1(3) of the Constitution.

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In Amadi v. N.N.P.C.101 the Supreme Court held that this and similar decisions of
the court holding that a pre-action notice is not inconsistent with section 6(6) (b) of
the Constitution “should not be taken to mean that in certain circumstances, the
particular requirement can never constitute infringement of the exercise of judicial
powers by the courts or abridge the citizen's right of access to the court. Such last
mentioned situations will definitely be inconsistent with the Constitution.” It is
submitted that the imposition of a 90-day pre-action notice (contrary to the 30-day
rule contained in Section 43 of the Principal Act) is excessive and should be
reviewed.
AMCON and Injunctive Remedies
As discussed earlier, AMCON is empowered under various provisions of the
Act to obtain interlocutory orders by ex parte application particularly to take custody
and possession of properties suspected to belong to a debtor and freeze the account
of such debtor.102 The ex parte order shall have interlocutory effect and last till the
determination of the recovery action. Sections 49 and 50 of AMCON Act, 2010 have
been upheld and ascribed the nature of mareva orders by the Court of Appeal in
Tanzilla Petroleum Company Ltd & Anor. v. Asset Management Corporation of
Nigeria103 and Van Vilet Trucks (Nig.) Ltd. v. AMCON.104

While it is correct that generally, ex parte orders have been held not to
constitute an infringement of the right to fair hearing as guaranteed under Section
36 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), it must
be noted that this is due to their nature of being interim and short-lived.105 It must
be remembered that failure to commence an action within 14 days of obtaining ex
parte orders under the old Sections 49 and 50 of the AMCON Act, 2010 would
render the orders to lapse as held in Josco AG Global Resources v. AMCON.106
However, with the provisions of the new Sections 49 and 50 of the AMCON
(Amendment No. 2) Act, 2019 which have removed the obligation of the
Corporation to file a substantive suit within 14 days of obtaining ex parte orders to
take over the property of the debtor and freeze his accounts, it is certain that ex parte
orders, made without hearing the defendant, and intended to have interlocutory
effect in this instance may be certainly unconstitutional. This is contrary to Section
36 of the Constitution which guarantees right to fair hearing and contemplates such
orders made ex parte to be short-lived and not in perpetuity.107 It may also constitute
an infringement to right to property of the defendant as guaranteed under Section 44

101
[2000] 10 NWLR (Pt. 674) 76; (2000) LPELR-445(SC) (P. 49, paras. B-D).
102
See Sections 49 and 50 of the AMCON Act.
103
(2015) LPELR-40909(CA).
104
(2018) LPELR-46789(CA).
105
See 7Up Bottling Co. Ltd. v. Abiola & Sons (Nig.) Ltd. [1995] 3 NWLR (Pt. 383) 257.
106
(2018) LPELR-45637(CA) pages 45 – 49 paras F - D
107
See Animashaun v. Bakare [2010] 16 NWLR (Pt. 1220) 513.

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of the Constitution. This is more correct because where the corporation is even found
to have wrongly taken an asset or realize an asset, by Section 34(6) of the AMCON
(Amendment No. 2) Act, 2019, a claimant against the Corporation is not entitled to
recovery of such asset but only monetary compensation.

The practice by AMCON-appointed receivers/managers is to obtain such ex

parte orders, take over the properties of the debtor and sell off the properties to third
parties during the pendency of the substantive suit if at all they file any. The courts
have equally been complicit in this as there may be no sitting of the court for over a
year after the ex parte order had been granted.

Based on the above, a number of businesses have been ruined while

delinquent receivers/managers hold sway and behave like touts, liquidating
businesses and selling off properties whether forming part of the security for the
eligible bank asset acquired by AMCON or otherwise. It may be argued that it is in
view of this that the legislature has provided the time limit of six months for the
determination of a suit or appeal involving the corporation so as not to unduly
prolong the effect of an ex parte order granted the corporation. It is doubtful if any
court has observed the provisions of Section 55(3), (5) and (6) of the Act limiting
the time for determining AMCON cases.

Further, in the seeming over-protective efforts of the legislature, Section

34(6) of the AMCON (Amendment No. 2) Act, 2019 has forbidden the grant of any
injunctive, preservative or restorative or order, interim, interlocutory, perpetual or
like order from being granted against the corporation or its officers while exercising
its debt recovery powers. This is a drunken exercise of legislative power as no Court
conscious of its duty under the Constitution would so protect the Corporation no
matter its excesses. It is in realization of this that the High Court of Lagos State in
Suit No. LD/8418LMW/2019 – Mr. Adedayo Mumini Shittu & Anor. v. Knight
Brook Limited & 2 Ors. held that Section 34(6) of the AMCON Act, 2019 is
unconstitutional and hence grant injunctive remedies against the Corporation in
respect of a property belonging to the Claimant which the Corporation took over in
the exercise of it recovery of loan granted to the 1st Defendant.

Piercing the Veil of Incorporation

Furthermore, the provision of Section 50B(4) of the AMCON (Amendment
No. 2) Act defining a debtor or debtor company for the purpose of bankruptcy
proceedings and winding up proceedings under Section 51 and 52 respectively to
include directors and shareholders, directors and shareholders of a guarantor
company and of companies wherein they hold 50% of shares is excessive. By
subjecting a shareholder whose investment in the company has probably been lost
to the company’s insolvency and who is probably not aware of the day-to-day

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running of the company to bankruptcy is extremely cruel. This is beyond mere lifting
the veil. It amounts to tearing the veil of incorporation and has destroyed the essence
of company law.

CONCLUSION
Suffice to say that the establishment of AMCON has greatly helped to
address the problem of non-performing loans in Nigerian banks through a
transparent removal of toxic assets by providing the affected banks with a fresh start
while eliciting a minimal moral hazard effect as far as financial institutions were
concerned.108 The need to make recalcitrant debtors pay their debt has been
strengthened by the legislature, which is commendable, and the judiciary has
substantially cooperated in assisting in this regard. According to the Court of Appeal
in Van Vilet Trucks (Nig.) Ltd. v. AMCON109
..bank debts are endemic and the debtors are applying every wicked trick in
the book to frustrate and void the process of judicial recovery. Definitely the
judiciary has to apply laws in an aggressive pursuit of recovery that will ultimately
attract a strict judicial aggressive purposive interpretation of the Act and its
application, grant Orders, ensure a protection of its Orders within the confines of
the law to bring sanity in this area.

The Courts have, therefore, given teeth to the provisions of the AMCON Act
but it is necessary to ensure the legislative interventions as are contained in the Act
do not constitute infringement on fundamental rights as toxic provisions discussed
above may hamper the judiciary in its protection of the corporation while the abuse
of statutory provisions by the corporation is becoming an issue agitating the public.

It is in the light of the above that it is recommended that further amendment

need be considered of Section 34(6) of the Act to avoid its attempt at muzzling the
court with respect to its inherent power to grant injunctive orders in appropriate
cases. It is also necessary to reinstate the duty of the corporation under Sections 49
and 50 of the Act to institute an action within 14 days of obtaining an ex parte order
to take assets of a debtor and freeze its account while the legislature may revert to
the 30-day pre-action notice rule under Section 43 of the Principal Act as the current
90-day pre-action notice requirement is definitely overreaching. Contrary to what is
currently obtainable under Section 53 of the Act, the Court should also have the
power to extend time in dispensing with a matter not concluded within 60 days
stipulated thereunder but which extension may not be more than once and only for

108
AJEWOLE, O. J. “Investigating Nigeria’s Asset Management Corporation: Case Study of a Bad
Bank Solution to Banking Crisis”, University of Cape-town, 2014, p. 1.
109
(2018) LPELR-46789(CA).

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three months. Failure to address this may render many cases stale and the court shall
be losing jurisdiction to conclude same which turned out to be the fate of cases like
Abuabakar v. Nasamu110 and Ogboru v. Uduaghan111. The grab-it-all intention
behind Sections 50B, 51 and 52 of the 2019 Amendment of the Act deserves a
review as subjecting innocent third parties to liabilities of a loan they might not be
aware of is a form of proxy liability which is antithetical to every sense of justice.

110
[2012] 17 NWLR (Pt. 1330) 523.
111
[2012] 11 NWLR (Pt. 1311) 357.

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R E S T R I C T E D A PP R O A C H T O J U DI CI AL I N T E RVE NT I O N I N
C O M M E R C I A L A R B I T R A T I O N ; T H E N I GE R I AN E X PE RI E NC E

P HI L I P O S A R OB O O D I AS E , P H D 
AND
O L A I D E A G B A DAM O S I , P H D  

A B S T RA CT
One of the reasons for the wide acceptance of arbitration as an
alternative to resolution of disputes through the national courts is the
presumption that it guarantees a greater degree of certainty over
other modes of dispute resolution. This attribute reinforced by the
finality of arbitral awards coupled with a near seamless universal mode
of cross-border enforcement regime appears in contemporary times
to be in a quagmire. Though arbitration is a private arrangement,
however, to enhancing its efficacy, it sometimes proceeds in the
shadows of the national courts. And in the course of accessing the
courts, a lot of arbitration centred cases get trapped infinitum in the
dockets of most national courts. Therefore, this piece appraises the
legal instruments regulating the intervention of the courts in
commercial arbitration processes in Nigeria; highlights some of the
strength and inherent weaknesses of the law in fostering the core
essence of the arbitral process and assisting parties to realise their
core objective of expeditious settlement of disputes. Findings: the
study revealed that statutory permitted judicial interventions have in
most instances been wittingly or unwittingly engaged by the parties to
delay and frustrate the arbitral process. Consequently, the paper
recommending the insertion in the rules of courts and statutes
timeline provisions for disposing of arbitral matters and upgrading
status of arbitral award to the equivalent of a court decision to
enhance seamless enforcement.

Keywords: Commercial dispute, Arbitration, Court, restricted intervention, delay


Ph.D, Senior Lecturer and Ag. Head, Private and Property Law. Faculty of Law, Adekunle Ajasin
University, Akungba, Nigeria; E-mail: philip.odiase@aaua.edu.ng


Professor of Law, Osun State University, Nigeria

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1. I NT R O D U C T I O N
One of the contributions of arbitration to the administration of justice in Nigeria is
its role in helping in the decongestion of judicial docket.112 The sublime of section
36(1) of the Constitution of the Federal Republic of Nigeria (the Constitution) 113, is
to advances access to justice and ensure that such is dispensed by an impartial
tribunal within a reasonable time. In contrast, one of the most virulent challenges to
the administration of justice through the courts in Nigeria is the interminable delay
suffered by litigants. Despite series of reforms carried out in the field of
administration of criminal114 and civil justice in Nigeria in recent times, inordinate
delay remains the greatest challenge bedevilling justice delivery.
In further response to this challenge, most States have in addition to traditional
litigation, introduced the multi-door courthouse115 system to aid in the decongestion
of judicial docket in almost all the jurisdictions in Nigeria; options available for
litigants at the multi-door courthouse include arbitration. Arbitration is a
nongovernmental,116 consent-based dispute resolution process, wherein dispute
between not less than two parties is referred to arbitrator(s) of their choice for
determination, after hearing both sides in a judicial manner by the arbitrator(s) and
the decision (award) of the arbitrator(s) is considered binding. 117 However, the
winning party may take this decision before a court for execution.118

112
Michael J Mustill, ‘Foreword’ OM Prakash Malhotra The Law and Practice of Arbitration and
Conciliation (New Delhi: Lexis Nexis, (2002)

113
Constitution of Federal Republic of Nigeria 1999 (as Amended).
114
Towards enhancing speedy trial of cases government enacted the Administration of Criminal
Justice Act.
115
Frank E.A. Sander, ‘Varieties of Dispute Processing’ (1976) 70 F.R.D. 111; Sander a professor of
Law, Harvard University, first articulated the concept of the multi-door courthouse in April 1976 at
a conference to address the problems faced by judges in the administration of justice. He
propounded that the court system would be more efficient if they were to adopt a multi-track
approach, incorporating both litigation and Alternative Disputes Resolution mechanisms) to dispute
resolution. This theory came to be known as the Multi-Door Courthouse Concept.
116
There are some exceptions e.g. multi-door courthouse.
117
NNPC v Lutin Inv (2006) 134 LRCN 316, 358.
118
United Nations Commission on International Trade Law [UNCITRAL], 1985, hereinafter UNCITRAL
Model Law, available <http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/ml-arb-
e.pdf.> accessed 19 September 2020. The UNCITRAL Model Law has served as the basis for
approximately fifty national arbitration laws including Nigeria. See the U.N. Commission on
International Trade Laws, Status of Conventions and Model Laws, 2005 hereinafter UNCITRAL

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Whether within or outside the multi-door courthouse system, arbitration

remains a private dispute resolution arrangement endorsed by law and subject to
compelling circumstances and dictates, sometimes proceeds in the shadow of public
coercion provided through the instrumentality of the courts.119 The unavoidable
reliance on the instrumentality of the courts has been described as one of the greatest
“paradox of arbitration” as it seeks “... the co-operation of the very public authorities
from which it wants to free itself.”120
Therefore, from the commencement of the arbitral process until enforcement
of the award, and depending on the agreement of parties and issues that may arise in
the course of the proceedings, parties may be compelled to invoke the jurisdiction
of the court to provide one support or the other towards upholding the integrity of
the arbitral process.121 Despite the synergy between arbitration and national courts,
over the years, commentators have come to a unanimous conclusion that there is a
need to restrict the degree of courts intervention in arbitral processes. 122 This piece
scrutinises legal instruments regulating the intervention of the courts in commercial
arbitration processes and in the process highlights some of the strength and inherent
weaknesses of the law in fostering the core essence of the arbitral process.

1. The Movement Towards Restricted Judicial Intervention

Before legislative interventions, the courts to a very large extent had unrestricted
inroads into arbitration in most jurisdictions of the world, which sometime were
open to abuse by the parties; unrestricted as access to courts increases opportunities
for dilatory tactics.123 The rationale in support of unhindered judicial intervention
from the view of proponents is amongst others, if restrictions were imposed, since
most areas of law where disputes were constantly referred to arbitral tribunals
centred on commercial transactions, this will hinder the development of law in the
area; particularly so because arbitral proceedings are private proceedings and the

Status, <http://daccessdds.un.org/doc/UNDOC/GEN/V05/842/19/PDF/V0584219.pdf.> accessed

18 September 2020

119
Christopher A. Whytock, ‘Domestic Courts and Global Governance’ (2007) 101 AM. SOC’Y INT’L
L. PROC. 166, 167-68.
120
Jan Paulsson ‘Arbitration in Three Dimensions’ (2020) LSE Legal Studies Working Paper No. 1.
2010, 2 <http://www.lse.ac.uk/collections/law/wps/WPS2010-02_Paulsson.pdf> 17 April 2019.

121
Tjong Very Sumito v Antig Investments [2009] 4 SLR 732
122
William W Park, ‘Why Courts Review Arbitral Awards’ (2001) 16 Int'l Arb. Rep. 27; Gbenga
Bamodu, ‘Judicial Support for Arbitration in Nigeria: On Interpretation of Aspects of Nigeria's
Arbitration and Conciliation Act’ (2018)62 (2) Journal of African Law 255-279
123
William Park, ‘The Arbitrator’s Jurisdiction to Determine Jurisdiction’ (2007) Boston University
School of Law, Public Law & Legal Theory paper Series, 7
<https://scholarship.law.bu.edu/faculty_scholarship/600> accessed 14 June 2020

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resulting awards are scarcely allowed into public domain.124 Therefore, allowing
unhindered judicial review of arbitral awards would have the benefit of bringing to
court’s scrutiny and public domain the novel issues which may have arisen in
arbitration; leading to a further development of the relevant area of law in the course
judicial review.
On the other extreme were proponents of non-judicial intervention. This position for
a long time held sway in countries like France and Belgium where for a long period
judicial review was non-existent.125 However, within the period there was a
decreased in the number of disputes referred to arbitration, simply because in the
absence of public censure in the form of judicial review and enforcement of the
arbitral award, there was no incentive to go to arbitration.126 This prompted the two
countries to change the system to include a system of judicial review.
The above experience gave rise to another school of thought, the proponents of
parties’ autonomy. They neither support unhindered judicial review or absence of
judicial review. They are of the view that arbitration should neither be subjected to
a system of full judicial review nor be entirely independent of judicial oversight.
Consequently, they argue that such restrictive legislation should allow for judicial
oversight that would protect the integrity of the process and ensure adherence to
specified minimum standards of procedural fairness by the arbitration tribunal.127
Thus, for the purposes of clarity and predictability in the law and practice of
arbitration, the need to develop a framework to regulate the extent and when court
should be allowed to intervene arose. In response to the challenge, both international
and national efforts were made through legislations to limit instances of courts’
intervention in arbitral processes. A cursory perusal of most of these instruments
like the United Nations Commission on International Trade Law (UNCITRAL)
Model Law on International Commercial Arbitration128 (Model Law) and the
Convention on the Recognition and Enforcement of Arbitral Awards129 (New York
Convention), reveal that in allowing courts’ intervention, care was taken to strike a
balance between the need to append the stamp of State Authority to arbitral

124
Chang-fa Lo, ‘On a Balanced Mechanism of Publishing Arbitral Awards’(2008) 1(2),
Contemporary Asia Arbitration Journal 236.
125
Hossein Abedian, ‘Judicial Review of Arbitral Awards in International Arbitration’ (2011) 28 (6)
Journal of International Arbitration 589, 590
126
Ibid 599-600
127
William W Park, n 11. See Manukau City Council v Fletcher Mainline Ltd [1982] 2 NZLR 142 (CA)
at 146.

128
UNCITRAL Model Law
129
1958 < www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf>
accessed 14 June 2020.

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processes and retaining the primordial core values of arbitration, like parties’
autonomy coupled with upholding the sanctity of the resulting private arrangement.
What can be gleaned from these legal instruments is that the permitted instances of
courts’ intervention were essentially restricted to upholding the independence and
integrity of arbitration agreements and enforceability of the resulting awards.
Historically, the UNCITRAL Model Law is considered one of the
monumental landmarks in the development of the modern approach on restricted
judicial intervention in arbitration.130 The law was primarily designed to harmonise
the disparities that existed between different national laws relating to the practice of
arbitration. Amongst these areas are the extent of court’s assistance and
supervision.131 In delimiting incidents of courts assistance and supervision, Article
5 of the Model Law unequivocally limits the intervention of courts to what is
expressly permitted by the law. The Article states, “In matters governed by this Law,
no court shall intervene except where so provided in this Law.” By implication, it
excludes any general or inherent powers of courts ordinarily allowed within
domestic system but not expressly provided for in the Law. The goal is to promote
a higher degree of certainty in the practice of arbitration and protect parties from
unexpected surprises,132 because “certainty is of primary importance in all
commercial transactions.”133 While there is no outright ban on court’s intervention
in arbitration processes, the Model Law allows intervention only when it is
expedient to and inexpedient not to allow intervention.134
The areas allowed include staying court proceedings pending the hearing and
determination of arbitral proceedings, 135 provision of interim measures of
protection,136 assisting with the appointment of an arbitral tribunal subject to the
parties’ agreement,137 the resolution of the jurisdiction of an arbitral tribunal,138

130
Legislation based on the Model Law has been adopted in 67 States in a total of 97 jurisdictions.
131
See the Explanatory Note by the UNCITRAL Secretariat on the Model Law on International
Commercial Arbitration <https://www.mcgill.ca/arbitration/files/arbitration/ExplanatoryNote-
UNCITRALSecretariat.> accessed 12 September 2019
132
Adedoyin Rhodes-Vivour, ‘Arbitration in the Resolution of Maritime Disputes’
<http://www.drvlawplace.com/media/arbitration-maritime-disputes.pdf> accessed on 18
September 19, 2020

133
Lord Salmon in Mardorf Peach & Co Ltd v Attica Sea Carriers Corp of Liberia, The Laconia [1977]
A.C. 850 at 878
134
Lin Ming Lin Ming v Chen Shu Quan (2012) 2 HKRLD 547. 14
135
Art 8, Model Law, art 8
136
Ibid, arts 9 and 17J.
137
Ibid, arts 11, 13 and 14.
138
Ibid, art 16.

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assisting in taking evidence,139 determination and setting aside of arbitral awards,140

and recognition and enforcement of interim measures issued by an arbitral
tribunal141and final arbitral award.142
Taking a clue from the Model Law, most national arbitration laws, including
the Nigeria’s Arbitration and Conciliation Act 1988143 (Arbitration Act)
unequivocally promote restricted courts intervention in arbitration process.144 A
scrutiny of literatures indicates that legislations patterned after (including decisions
predicated on) the provisions of the Model Law uphold the emerging approach of
qualified judicial intervention.145
At the national level, the common position from both common law and civil
law jurisdictions supports restricted judicial oversight of arbitration processes. One
of such is the recommendations of the Dervaird Committee in Scotland which
recommended that the scope for judicial review of arbitration awards should be
circumscribed and restricted to what is expressly allowed. The Committee regard
Article 5 of the Model Law as satisfactory. On its part, the Law Reform Commission
of British Columbia in addition to recommending restriction of judicial intervention
to situations where a point of law of general public importance is in issue and its
resolution would prevent a miscarriage of justice, it also recommends that parties be

139
Ibid, art 27.
140
Ibid, art 34.
141
Ibid, arts 17H and 17I.
142
Ibid arts 35 and 36
143
Cap A 18, Laws of the Federation of Nigeria 2004 (LFN)
144
Propelled by the understanding that states' adherence to the principle of minimum intervention
by the national courts is a determinant factor in adjudging a jurisdiction attractive for arbitration or
not, most African states including Southern America and states within the Asia-Pacific region
including Australia have adopted provisions similar to the Model Law provisions on limits of courts'
intervention. Countries like Indonesia, China, France, Switzerland, England and others have similar
provisions though with slight variations. See Justice J Allsop ‘Judicial support of arbitration’ (APRAG
10th anniversary conference, Melbourne, 28 March 2014),
<http://www.austlii.edu.au/au/journals/FedJSchol/2014/5.html> accessed 12 September 2019
145
See the New Zealand case of Marnell Corrao Associates Inc v Sensation Yachts Ltd (2000) 15
PRNZ 608; also the dictum of Bingham J in Zermalt Holdings v Nu-Life Upholstery Repairs (1985) 2
EGLR 14; similarly that of Cooke J in Money v Ven-Lu-Ree Ltd[1988] 2 NZLR 414 (CA) at 417. The
situation is the same in Singapore see the decision in Tjong Very Sumito v Antig Investments[2009]
4 SLR (R) 732.

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vested with the discretion to exclude judicial review or appeals of final arbitral
award.146
Originally in England, where Nigeria copied most of her laws including
common law principles from, courts exercised a general supervisory power over
arbitration. With the result that under the inherent powers of courts, the courts were
able to review arbitral awards for an error of law.147 With the intervention of
parliament via Arbitration Acts of 1979 and 1996, the power of court to review
arbitral award was confined to appeal on grounds of law alone, subject to the consent
of parties or leave of court.148 An excursion into case law also reveals that some
notable decisions of court gave the impetus for the acceptance and change of the
relationship between the court and arbitration.149 Amongst these pronouncements is
the contribution of the House of Lords in Heyman v Darwins,150 which is the locus
classicus on the doctrine of separability of the arbitration clause. The doctrine posits
that although an arbitration clause forms part of the contract, it is ancillary to and
constitutes a separate contract, independent of the main contract.151 Thus, whether
part or the entire contract amounts to a nullity it does not affect the enforceability of
the arbitration clause. Further, in recognition of the finality of arbitral proceedings,
the court in Harbour Assurance Co (UK) Limited v Kansa General International
Assurance Co Limited & Ors152 articulated the concept of “one step” adjudication.
The interpretation of the Arbitration Act 1979 by Lords Denning153 and Diplock154
provided the required guidelines for stricter approach to the issue and was finally
adopted in section 69 of the UK Arbitration Act 1996. Thus, as a result of these
judicial pronouncements and extant statutory provisions, courts in England though
possessory of some qualified powers, are often reluctant to intervene in arbitration;

146
Law Reform Commission of British Columbia Report on Arbitration (LRC 55, May 1982)

<http://www.bcli.org/sites/default/files/LRC55-Arbitration.pdf > accessed 16 April 2019

147
For instance, see Vynoir’s case (1609) 77 Eng Rep 595, decided by Lord Coke. See also, the
historical analysis of this development in England and Wales, Michael J. Mustill, Stewart Crauford
Boyd, Mustill and Boyd: Commercial Arbitration (2nd edn, LexisNexis, 1989) 381- 401
148
Arbitration Act 1996, s 69
149
David A R Williams 'Defining The Role Of The Court In Modern International Commercial
Arbitration' Herbert Smith Freehills - SMU Asian Arbitration Lecture, Singapore - 2012 <
http://www.globalarbitrationreview.com/cdn/files/gar/articles/> accessed 14 March 2020

150
[1942] AC 356; [1942] 1 All ER 337
151
Bremmer Vulcan Schiffbau and Maschinen Frabrik v South India Shipping Corp Ltd [1981] 1 Lloyds
Rep 253, 259
152
[1993] QB 703, 724–725
153
BTP Tioxide Ltd v Pioneer Shipping, The Nema [1980]QB 547.
154
Pioneer Shipping v BTP Tioxide Ltd (The Nema) (No. 2)[1982] AC 724

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the courts generally only intervene to support rather than displace the arbitral
process.155
Over the years, decisions of this nature did not only shape the relationship between
court and arbitration in England, they have also to a large extent defined the
relationship in most common law countries, because of the decisions of English
courts are held in high regards outside England.

2. Limited Judicial Intervention in Arbitration Proceedings in Nigeria

The journey towards limiting courts’ intervention in arbitral proceedings and finality
of arbitration decision in Nigeria has both legislative and judicial perspectives;
though majorly facilitated by legislations and globalization. As stated earlier, the
extant law regulating commercial arbitration in Nigerian is the Arbitration and
Conciliation Act 1988. Section 58 of the Act states in part that the Act “shall apply
throughout the Federation.” The UNCITRAL Model Law substantially influenced
its promulgation. Consequently, its provisions are near ipsissima verba of the
UNCITRAL Model Law.
Prior to the promulgation of the Arbitration Act, the penchant of the Nigerian
courts to protect and preserve their jurisdiction was constantly demonstrated now
and again, and more particularly, when parties in an arbitration agreement seek to
oust jurisdiction of the courts. Under such circumstances, the courts will usually
jealously protect their jurisdiction and interpret such clause as an affront to the
dignity of the courts.156 This attitude substantially stems from the erroneous
reasoning that arbitration constitutes a rival judicial institution to the courts.157 Over
the years the courts have come to appreciate the fact that arbitration is an important
auxiliary tool in the administration of justice and, the desire and need to adopt best
international practices imposed by globalization in the administration of justice have
in addition, changed the attitude of Nigerian courts towards arbitration.158 At the
moment, courts are generally bias in favour of arbitration even in the face of defects

155
Lord Thomas CJ, ‘Developing commercial law through the courts: rebalancing the relationship
between the courts and arbitration’ (The Bailii Lecture 2016, London, 9 March 2016) <
https://www.judiciary.uk/wp-content/uploads/2016/03/lcj-speech-bailli-lecture-20160309.pdf>
accessed 19 September 2020
156
In Kano State Urban Development Board (K.S.U.D.B) v FANZ Limited [1986] 5 NWLR (Pt. 39) 74.
Akpata JSC described the process of submitting to arbitration and its award as “foolhardy references
to arbitration and rough and ready decisions by arbitrators.”
157
Ibid.
158
C. E. Aduaka, ‘Contemporary Problems in International Arbitration Practice in Nigeria’ (2013) l
3(1) African Journal of Law and Criminology 115

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in the agreement to submit to arbitration,159 deliberately to encourage resort to

arbitration by disputants even when the matter is already pending before the court.160
The question is to what extent has Nigeria municipal law been able to support and
protect arbitration from unwarranted judicial intervention and promote parties’
autonomy?

3. Statutory Permitted Scope of Judicial Intervention

From the onset, it is important to note that like the Model Law, under the regime of
the Arbitration Act, the courts are not absolutely banned from intervention in
arbitration. The Act simply restricts courts’ intervention in arbitral processes to
expressly permitted circumstances. In this regards, section 34 of the Arbitration Act
is very instructive. The section reads: “A court shall not intervene in any matter
governed by this Act, except, where so provided in this Act”. In other words,
intervention is allowed to the extent permitted by the Arbitration Act. Amongst the
instances expressly allowed by the Arbitration Act resolution of disputes
surrounding the appointment of arbitrator(s), application for revocation of the
arbitration agreement, stay of court proceedings, interim protection of the subject
matter of dispute as well as enforcement of peremptory orders, production of
documents, attendance of witnesses, setting aside of award, remission of award,
enforcement of award and refusal of enforcement and so forth. These occasions can
conveniently be discussed under three subheadings: Pre-Arbitration Proceedings,
Course of Proceedings and Post Award interventions.

4.1. Pre-arbitration proceedings

Occasions may arise prior to the commencement of the arbitral proceeding that may
compel either of the parties to the intending arbitral proceedings to seek the aid of
the regular courts to either facilitate the process or foreclose it. The Arbitration Act
envisages such situations and made ample provisions to guide the court and parties.
The preceding discussions are on some of those instances.
i. Appointment of Arbitrator: In deserving cases, on an application of a party to
arbitration agreement, the Arbitration Act empowers the court to appoint arbitration

159
See Charles Mekwunye v. Christian Imoukhuede (2019), SC, 85.1/2014 unreported Supreme
Court Judgement < http://arbitrationblog.kluwerarbitration.com/wp-
content/uploads/sites/48/2019/08/CTC-of-Mekwunye-v-Imoukhuede.pdf> accessed 14 June
2020.
160
For instance Or 28, r 1 of the Edo State High Court (Civil Procedure) Rules 2018. It imposes a
mandatory duty on the trial High Court encourage settlement of matter either by arbitration,
conciliation, mediation, or any other method of dispute resolution. See also Order 16, Court of
Appeal Rules 2011.

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for parties.161 Sadly, experience has shown that deadlock in the appointment of
arbitrators can pose a serious impediment to the arbitration process and if not
properly managed, could inordinately delayed or permanently frustrated the
arbitration. A classic example is what played out in Adeoye Magbagbeola v
Temitope Sanni, 162 where the Respondent brought an application on 28 March 2000,
at the Lagos State High Court for the appointment of a sole arbitrator. The Appellant
filed a Notice of Preliminary Objection challenging the jurisdiction of the court to
entertain matters bordering on companies incorporated under the Companies and
Allied Matters Act, 1990. The objection was dismissed. An appeal to the Court of
Appeal was also dismissed and the final appeal to the Supreme Court was dismissed
on 29 April 2005; period of over five just to appoint an arbitrator.
Again, where the parties reserve the power to appoint the arbitrator(s) and any of the
parties refuses to have an arbitrator appointed within the agreed time, the Arbitration
Act confers jurisdiction on the court to intervene and appoint the arbitrator(s) on the
application the innocent party.163 In line with the provisions of the Arbitration Act
(in the interest of promoting speed, one of the core values of arbitration), once the
appointment is made by the court, the decision is final. 164 However, close scrutiny
of the provision shows that an appeal may be entertained where the appointed
arbitrator lacks the qualification specified by parties.165 Again, it appears that section
241 of the constitution has by implication nullified section 7(4) of the Arbitration
Act which makes such decision final. In Nigerian Agip Oil Co. Ltd, v. Kemmer,166
the Court of Appeal had the opportunity to pronounce on the constitutionality or
otherwise of section 7(4) of the Arbitration Act as to whether a decision of court
appointing an arbitrator is appealable. Lord Ikongbeh, reasoned that the provisions
of section 7(4) of the Arbitration Act cannot override the right of appeal conferred
by section 241 of the Constitution by virtue of section 1(3), of the Constitution,
which proclaims the superiority of the Constitution and by implication guaranteed
the right to appeal.167
ii. Revocation of arbitration: Except with the sanction of court or mutual agreement
of the parties, valid arbitration agreement cannot be unilaterally revoked; until

161
Arbitration Act, s 7
162
(2005) 127 LRCN 1159; See alos K. Mayomi, ‘Arbitrating in Nigeria’ (2010) 5(5) Global
Arbitration Review (GAR) 10.

163
Arbitration Act, s 57; see also Royal Exchange Assurance v Bentworth Finance (Nig.) Ltd (1976)
11 S.C. 96; and Magbagbeola v. Sanni above.
164
Arbitration Act, s 7(4)
165
Arbitration Act, s 7(5)
166
[2001] 8 NWLR (Pt. 716) 506 CA
167
Ibid, 517

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revoked in line with the provisions of the Arbitration Act, it is binding on parties.168
Where a party purportedly unilaterally revokes the arbitration agreement, and
refuses or fails to take part in the process, the arbitration is legally entitled to proceed
notwithstanding such refusal and the final outcome is binding on him. 169 The
Arbitration Act provides two ways of revocation: by the mutual agreement of parties
or by the court. 170 A party may on justifiable grounds initiate proceedings for a
declaration that he is no longer bound by the arbitration agreement or for an
injunction to prevent a reference of the dispute to arbitration.171 If satisfied, the court
may make an order revoking the arbitration agreement; consequently, the arbitration
agreement ceases to have an effect.
iii. Stay of Proceedings: A stay of proceedings presupposes a situation where a
pending lawsuit is suspended either indefinitely or until the occurrence of a
condition imposed by the court. Statutorily, the court has the power to stay its
proceedings when an application is brought before it to suspend the proceedings
commenced in breach of a binding arbitration agreement.172 Where such application
is made on the ground of pre-existing agreement between the parties, the court is
obliged to order a stay.173 In the Owners of the MV LUPEX v Nigeria Overseas
Chartering and Shipping Limited, 174 the Supreme Court held that “where parties
have chosen to determine for themselves that they would refer any of their disputes
to arbitration instead of resorting to regular courts, a prima facie duty is cast upon
the courts to act upon their agreement”.
It is in recognition of the sanctity of contract that the Arbitration Act grants
the court the power to stay proceedings where an action is brought in breach of an
arbitration agreement and thus enable parties to refer their dispute to arbitration as
agreed or continue the same where one is already pending.175

4.2. Course of proceedings

Aside from the need to seek the aid of the regular court at the preliminary stage,
sometimes occasion may arise that will compel parties to arbitration to invoke the

168
Arbitration Act, s 2
169
Akpata Ephraim, The Nigeria Arbitration Law in Focus, (West African Book Publishers Limited,
1997) 21
170
Arbitration Act, s 2.
171
Breme Vulkan v. South India Shipping (1981) AC 909.
172
Arbitration Act, s 5
173
Ibid.
174
(2003) 109 LRCN 1315, 1326.
175
Arbitration Act, ss 4 and 5

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jurisdiction of the regular court in the course of the arbitral proceedings. Some of
the instances are discussed seriatim.
i. Attendance of witnesses: Parties to arbitration may not have any problem testifying
themselves and in persuading some of their witnesses to attend and give evidence.
However, instances may arise where such potential witnesses need to be compelled
by the court through a writ of subpoena ad testificandum176, to appear and testify
before the arbitral tribunal.
ii. Production of documents: Section 23(1) of the Act empowers the court upon an
application by a party who desires the production of any document in possession of
any person to issue subpoena duces tecum.177 However, such documents that the
court may order a witness to produce must be relevant to the matter before the
tribunal.
iii. Interim Measures of Protection/ Enforcement of peremptory orders: In situations
where it is imperative to protect the subject matter of dispute, a preservative order
may be obtained from the tribunal or court to prevent irreparable damage to any of
the parties;178 this may involve the selling of perishable goods.179 Thus, depending
on the circumstances, a party may request the court or the tribunal to issue an interim
order to protect the property but where there is fear that the other party may not
voluntarily comply with such order, it is advisable that the application should be
made to the court.

4.3. Post-award
Post-award applications are about the most controversial and frequently utilized
genre of all the instances where the court is permitted to intervene in arbitration. The
statutory right to invoke the jurisdiction of court after an award is made presents
both beneficial and negative implications for arbitration subject to the
circumstances. On the positive side, it presents the successful party with an
instrument to enforce the award and on the other hand, it may be abused. In this
regard, there are two instances where court’s intervention is permitted:
i. Recognition and Enforcement of Award: Arbitration awards do not stand on the
same pedestal as a judgment of a law court. Where the losing party is unwilling to
176
A Subpoena to testify. See Abiodun Adelaja v. Olatunde Fanoiki And Anor. [1990] 2 NWLR
(Pt.131). 76.
177
A subpoena that requires the witness to produce a document or documents. See Alexander
Amobi v. Pius Amobi & Ors [1996] 8 NWLR (Pt. 469) 638.
178
Mustill and Boyd, Commercial Arbitration, n 36, 330.
179
Arbitration Act, First Schedule, art 26

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comply, a winning party can only compel compliance by invoking the jurisdiction
of the court.180 Enforcement of arbitral award through the court represents the most
important aspect of the symbiotic relationship between arbitration and the court.
Once the application is granted by the court, the award becomes enforceable in the
same manner as judgment or order of a court with the same effect. The consequence
is that all methods of enforcing a judgment of court are thereafter made available to
enforce the award.
International arbitral awards arising out of contractual or commercial relationship181
are also enforceable by court.182 In line with Arbitration Act, the New York
Convention is applicable to any international award made in Nigeria or in any
foreign Country with reciprocal treatment for award made in Nigeria. Nigerian
courts will enforce such award, provided that the award was within the arbitrators’
jurisdiction as specified in the arbitration agreement,183 the proceeding met minimal
standards of fairness,184 the subject matter is amenable to arbitration,185 and the
award does not violate principles of public policy.186
However, enforcement of International Centre for Settlement of Investment
Disputes187 (ICSID) award is about the most seamless. Its awards are enforced in
line with the provisions of the International Centre for Settlement of Investment
Disputes (Enforcement of Award) Act188(ICSID Act), a statute specifically enacted
for the enforcement in Nigeria of awards made by the Centre. In line with section
1(1) of the ICSID Act such award if filed in the Supreme Court by the party seeking
its recognition for enforcement in Nigeria, have effect as if it were an award
contained in a final judgment of the Supreme Court.

180
Arbitration Act, s 31
181
Arbitration Act, s 54
182
Arbitration Act, ss. 51, 52 and 54
183
New York Convention, supra, art. V(1)(c).
184
Ibid, art. V(1)(b).

185
Ibid, art. V(2)(a).

186
Ibid, art. V(2)(b).

187
The ICSID is an international arbitration institution established in 1966 for resolution of dispute
between international investors and their host countries by the Convention on the Settlement of
Investment Disputes between States and Nationals 1966. The ICSID is part of and funded by the
World Bank Group.
188
International Centre for Settlement of Investment Disputes (Enforcement of Award) Act, Cap I
20, LFN 2004.

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ii. Setting aside of award: The most disturbing aspects of permitted courts’
intervention in arbitration are enforcement and challenge of award. This process can
linger on infinitum.189 Though Nigerian courts are not stricto sensu statutorily
empowered to review arbitral awards, they are permitted to set aside arbitral awards
on well-defined grounds.190 Thus, an aggrieved party may by way of an application
to a High court, apply to set aside an arbitral award within three months from the
date of the award. The jurisdiction of court is restricted to setting aside or remitting
the award to the arbitrator for reconsideration.191 Where the ground of the challenged
is that the tribunal exceeded its scope of reference,192 the court can save those within
the jurisdiction of the tribunal; where the matter within the arbitral jurisdiction can
be separated from those outside its scope of authority and those outside will be set
aside.193

4. Statutory circumscription of the right to Arbitrate or Litigate

Aside from the basic specialised Arbitration Act, there is plethora of municipal
legislations with varying implications for arbitration in Nigeria. Some of these
provisions are essential for the growth of arbitration, while others tend to derogate
from parties’ rights to voluntarily submit the resolution of their disputes to a dispute
settlement mechanism of their choice. It is imperative to consider some of these
provisions, as they pose different implications for the efficacy and enforceability of
the underlying principle of restricted court’s intervention in arbitration. Two
fundamental issues raised by the said provisions are worthy of consideration here,
because of their implications for topic under consideration. These are provisions that
either circumscribe parties’ right to arbitrate or to litigate.
5.1. Circumscription of right to arbitrate
In this context are statutes which mandate and restrict parties to a dispute option of
settlement to litigation. First, one of the implications of circumscribing the right to
arbitrate is to render otiose statutory limitation of courts intervention in arbitral
matters; it jettisons the restriction and vests in court the power to assume jurisdiction
over the dispute. One of such areas where the statute tends to promote litigation
over arbitration in Nigeria is with regard to matters regulated by the Admiralty

189
Philip O Odiase, ‘Enforcement of Commercial Arbitration Awards in Nigeria More Than Just a
Dalliance’
TDM 4 (2016), <www.transnational-dispute-management.com/article.asp?key=2378> 17 August
2020
190
Arbitration Act, ss 29 and 30.
191
A. Savoia Limited v A. O. Sonubi (2000) 80 LRCN 2706
192
Arbitration Act, s 29
193
Ude v Agu (1961) All NLR 65.

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Jurisdiction Act (AJA) 1991.194 The Act from a majority of the interpretations by
the superior courts of records prohibits an agreement to submit admiralty matter or
related matters to foreign arbitration. A close scrutiny of the Act reveals that one of
its objectives is to protect the admiralty jurisdiction of the Nigeria courts. In
furtherance of this objective, the Act in clear terms declares null and void any
agreement which oust the jurisdiction of Nigeria court where the matter relates to an
admiralty matter and any of the parties resides or once resided or the place of
performance or default is in Nigeria.195 In such instances, Federal High Court is
empowered to assume jurisdiction, where in the court’s discretion, the matter should
be adjudicated upon in Nigeria.
This provision of the AJA has been given conflicting judicial interpretations
both at the level of the Supreme Court and the Court of Appeal, however, in line
with the common law doctrine of judicial precedent applicable in Nigeria, the most
recent interpretation by the Supreme Court in JFS Investment Ltd. v. Brawal Line
Ltd. & Ors196 which until now has not been reversed, reflects the position of the law
in Nigeria today. In the case JFS and Brawal had a contract of carriage of goods on
board the a Ship from Hambura, Germany for delivery at Lagos, under two bills of
lading in which the parties agreed that the Hague Rules, 1924 should be the
legislation to determine their rights. JFS’s goods were delivered incomplete and
damaged. On 24th February 1995, JFS sued the respondents at the Federal High
Court, for breach of contract of affreightment and/ or breach of duty as bailees in
respect of its goods. At the Supreme Court, one of the issues turned around the clause
in the bill of lading under which the parties contracted, which provides that
The Hague Rules contained in the international convention for the
unification of certain Rules relating to bills of lading dated in
Brussels the 25th August 1924 as enacted in the country of
shipment shall apply to this contract. When no such enactment is in
force in the country of shipment, the corresponding legislation in
the country of destination shall apply, but in respect of shipments
to which no such enactments are compulsorily applicable, the terms
of the said convention shall apply.

In determining the issue, the Supreme Court considered amongst others the
provisions of section 20 of the Admiralty Jurisdiction Act and held that section 20

194
Cap A5, Laws of the Federation of Nigeria 2004.

195
Ibid s 20
196
[2010] 19 NWLR (Pt. 1225) 495.

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of the Admiralty Jurisdiction Act 1991 has virtually removed the element of courts
discretion in deciding whether or not to uphold a foreign jurisdictional clause.197 The
decision affirms that courts lack the discretion to uphold foreign jurisdiction clause
in admiralty matters. Consequently, agreement to submit a dispute touching on
admiralty matter to arbitration outside Nigeria will not be upheld by Nigeria Courts
as it has the effect of ousting the jurisdiction of Nigeria courts. Earlier, the Supreme
Court in Sonnar (Nig.) Ltd. & Another v Partenreedri M.S. Norwind & Another,198
held that an admiralty agreement with arbitration clause by implication oust the
jurisdiction of Nigerian court and was held to be null and void. The clause stated
that “Any dispute arising under this Bill of Lading shall be decided in the country
where the carrier has its principal place of business and the law of such country shall
apply except as provided elsewhere herein.” Following these line of authorities, the
Court of Appeal later in M.V. Panormos Bay v Olam (Nig.) Plc199, where Clause 7
of a Bill of Lading ousted the jurisdiction of the Nigerian courts by stating London
as the seat of arbitration, used the occasion to give detailed guidance on the
construction of section 20 of the Admiralty Jurisdiction Act (AJA) while declaring
null and void the clause, because it stipulated that disputes between parties shall be
referred to arbitration in London on the ground that such agreement offends section
20 of the AJA. What is very clear from the cases is that where admiralty related
matter is submitted to arbitration, the power of Nigeria courts to intervene and
assume jurisdiction is statutorily permitted.
Similarly, in matters touching on public claims, the court are more often
willing to assume jurisdiction over the dispute on ground of public policy despite
parties agreement to submit it to arbitration.200 Such instances include where an
award has been entered in a situation where the matter is non-arbitrable. In that case,
even if the arbitrator complies with the terms of the arbitration agreement, the court
on grounds of public policy would set aside such award.201 In Statoil (Nigeria)
Limited & Anor v. Federal Inland Revenue Service & Anor,202 the Court of Appeal
allowed a third party who was not a party to an arbitration agreement to successfully

197
Ibid, 526
198
(1987) All N.L.R. 548.
199
[2004] 5 N.W.L.R. (Part 865), C.A.1.
200
Akinwumi Ogunranti, ‘Separating the Wheat from the Chaff: Delimiting Public Policy Influence
on the Arbitrability of Disputes in Africa’ (2019) Afe Law Journal,
<https://www.ajol.info/index.php/jsdlp/article/ viewFile/188609/177863> accessed 12 September
2019
201
A. Savoia Limited v A. O. Sonubi (2000) 80 LRCN 2706
202
(2014) LPELR-23144 (CA). The decision has been criticised as being against the clear wordings
of s 34 of the Arbitration Act. See Jeremy Wilson ‘Nigerian Court of Appeal Allows Third Party to
Challenge Arbitration Award’ <https://www.covafrica.com/2015/02/nigerian-court-of-appeal-
allows-third-party-to-challenge-arbitration-award/> accessed 15 September 2019.

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challenge the arbitration on the ground that the subject matter was not arbitrable and
cannot by operation of law be resolved by arbitration.
Thus with regard to certain disputes in Nigeria, the mere fact that there is in
existence an agreement to submit the dispute to arbitration does not in all situations
restrict the national court from assuming jurisdiction over the dispute.

5.2. Circumscription of right to litigate

On the other extreme are statutory provisions which either promote ‘consensual
arbitration’ or compel arbitration. Such statutes operate to either circumscribe
parties’ choice in relation to the mode or form of arbitration where parties exercise
the option to submit their dispute to arbitration or on the other extreme are statutes
which completely fetter parties’ freedom to choose not to arbitrate -compels parties
to submit their dispute to arbitration. While the former is basically founded on
parties’ agreement or consent, the latter relates to legislations which compel parties
to arbitrate irrespective of whether they would have preferred other dispute
resolution mechanisms.203 Under these circumstances, the jurisdiction of the court
is either absolutely ousted or allowed on limited grounds. The position under the
Petroleum Act204 is one good example. Under the Act, disputes arising between the
Minister and a licensee concerning licensing for prospecting, exploring and or
mining of oil are must be submitted to arbitration.205 The section goes further to say
that such provision in any statute or regulation should be “treated as a submission to
arbitration for the purposes of that law.”206
The Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Act207
made no pretence in ousting the jurisdiction of the national court and compelling
arbitration. The provision clearly states that in the event of any dispute and parties
are unable to resolve it amicably within a specified period, the dispute may be
submitted to arbitration before the International Centre for the Settlement of

203
Bagoni Bukar, ‘Mandatory and Other Forms of Arbitration Under Some Selected Oil, Gas and
Investment Legislations in Nigeria’ (2008) Oil, Gas & Energy Law Intelligence
<http://www.ogel.org/journal- advance-publication-article.asp?key=224> accessed 18 April 2019

204
Cap P 10, LFN 2004
205
Petroleum Act, s 11
206
Petroleum Act, First Schedule, reg. 42
207
Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Act 1990, Cap N87, Laws of the
Federation of Nigeria, 2004.

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Investment Disputes (ICSID).208 This is a clear example of a self-executing

arbitration provision;209 this serves as consent on the part of Nigerian government to
submit to ICSID arbitration where the other party refers a dispute pursuant to the
provisions to ICSID. Consequently, there is no allowance for the intervention of
Nigeria Courts unless to unconditionally enforce the resulting award.210
Similarly, legislations which grant the parties’ the option of choosing either
to or not to arbitrate have almost similar effect. This is simply because once the party
with the statutory option of choosing the mode of settlement of the dispute opts in
favour of arbitration, the jurisdiction of the national court is effectively ousted to the
extent allowed by legislation. A clear example of this is the provisions of section 26
of Nigerian Investment Promotion Commission Act 211 (NIPCA), which grants an
aggrieved party an option to submit to arbitration in the event of dispute between an
investor and Government of Nigeria which defiled amicable settlement. Section 26
of NIPCA to a large extent retains parties’ autonomy and parties’ freedom to choose
whether to arbitrate or employ other means of dispute resolution. However, once a
party opt to arbitrate, the jurisdiction of the court over the subject is effectively
ousted subject to the statutory allowed limits; this position applies mutatis mutandis
where the party opt to litigate.
Separability of agreement to arbitrate, arbitrability, judicial non-
intervention, binding nature of the final award and most importantly, parties’
autonomy are the five fundamental pillars on which arbitration rests. The provisions
discussed in the two preceding subsections negate these primordial principles of
arbitration. Amongst other things, the provisions jettison parties’ autonomy and
remove parties right to decide whether to or not to refer their dispute to arbitration.
To be valid, the choice and consent as to whether to arbitrate must be clearly
manifest by way of express agreement.212 Consequently, persons who have not
agreed to arbitrate their disputes should have no business at the arbitral tribunal.
Arbitration is a contract and like every contract, it requires the consent of each party

208
Ibid, Second Schedule, para. 22
209
Bukar, n 92
210
International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act 1967,
Cap I 20, LFN 2004, s 1
211
Nigerian Investment Promotion Commission Act, Cap N117, Laws of the Federation of Nigeria,
2004 (hereinafter NIPC), s. 26 (2)
212
Bukar, n 92,

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for a valid submission.213 Thus, it is the exclusive right of the parties to opt to
arbitrate and organise the arbitration process. It is this privilege that reinforces
parties’ autonomy.214

5. Classical Cases of Abuses of Permitted Intervention

Judicial interventions in arbitration within the perimeters statutory allowed have
over the years proven to be an unruly horse that is sometimes capable of producing
a bipartite paradox. Thus, while the main objective of the few allowed exceptions is
to aid the efficacies of the arbitral process, the Nigerian experience has shown that
it can also sometimes be abused and employed mala-fide. A combination of several
factors inherent within the Nigeria justice delivery system provides the fertile
ground for these abuses; two of these factors standout. The first is the extremely
dilatory justice delivery system. This factor pervades the Nigeria justice delivery
system from the lower court to the apex court.215 The second is the growing tendency
of deliberately invoking courts’ intervention by any of the parties to create obstacles
and or frustrate the arbitral process. A painstaking perusal of arbitration centred
cases reported in Nigeria, reveals one inescapable conclusion that parties’
sometimes invoke statutorily permitted windows to defeat the efficacies of
arbitration (speedy, privacy, amongst others). One of such classic examples is IPCO
(Nigeria) Limited (IPCO) v Nigerian National Petroleum Corporation (NNPC)216
which has been on now for almost two decades. In the case, NNPC challenged the
arbitration award against the corporation on the ground that the tribunal lacked
jurisdiction. IPCO applied to the same Court to enforce the award. After four years
delay resulting from NNPC’s multiple applications and appeals, IPCO applied to the
English High Court to enforce the award. The Court ordered an adjournment sine
die until the challenge in Nigeria is finally dealt with, on the conditions that NNPC
pays part of the award which it accepted was due and provides security in respect of

213
Julian M Lew, Loukas A Mistelis and Stefan Kroll, Comparative International Commercial
Arbitration, (Kluwer Law International, 2003) 99.

214
C Chatterjee, ‘The Reality of the Party Autonomy Rule in International Arbitration’ (2003) 20-6,
J.Intl Arb 539, 540.

215
A survey conducted by the National Committee set up on the reform and harmonization of
Nigeria’s Arbitration and ADR Laws, found that the average length of time spent on litigating
arbitration related case from after the High Court Judgment to the Judgment of the Supreme Court
was 9.3 years.

216
[2017] UKSC 16

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the remainder.217 NNPC complied, but the proceedings in Nigeria continued to

suffer delay, consequently, in 2008 IPCO again applied to the English court for
reconsideration of full enforcement, arguing that from all indications, the challenge
in Nigeria would not be decided in another numbers of years. Consequently, the
court varied the earlier order and granted further partial enforcement but continued
to stay full enforcement on the reminder. Again, on the condition that NNPC
provides further security; NNPC complied.218 Late in 2008, new evidence emerged
in Nigeria which led NNPC to allege that the award was procured by fraud and a
further ground of challenge was introduced. In 2012 IPCO applied again to enforce
the award in England relying on inordinate delays in resolving the challenge in
Nigeria Courts. Both the English High Court219 and the Court of Appeal220 agreed
that the fraud challenge before Nigerian Court was made bona fide, that NNPC has
a good prima facie case that IPCO practised a fraud on the tribunal and that NNPC
has a realistic prospect of succeeding. The High Court dismissed the application,
however, despite this position, the English Appeal Court agreed with IPCO’s
contention that there had been a material change in circumstances that warranted the
adjournment. Consequently, it ordered remittance of the proceedings to the High
Court to determine whether or not it would be against public policy, in light of the
alleged fraud, to enforce the award and if in the affirmative, any further enforcement
of the award be adjourned pending the determination. Compliance with these orders
was however predicated on NNPC providing a further security and failure which
IPCO would be entitled to enforce the award as a judgment of the court. NNPC
appealed against this condition. The UK Supreme Court upheld the appeal and in
unequivocal terms held that there was nothing in the English Arbitration Act or in
the New York Convention which enables an enforcing court to make its decision
conditional upon the provision of security; enforcement of the remainder of the
award remained adjourned sine die.
The vicissitudes of this case reveal an unfortunate irony, why the numerous
applications brought before the different English courts were expeditiously disposed
of, the very few applications before Nigeria’s courts are still locked within the
courts’ dockets for almost two decades. Experiences like the foregoing abound and
shows that parties’ disrespect for the sanctity of arbitration agreement and awards221

217
[2005] EWHC 726 (Comm)
218
See IPCO (Nigeria) Ltd. v NNPC (2008) 2 Lloyd's Report 59.; NNPC v IPCO (2009) 1 Lloyd's Report
89

219
[2014] EWHC 576 (Comm)
220
[2015] EWCA Civ 1144
221
See Victino Fixed Odds Ltd V Joseph Ojo & 2 Ors (2010) 3 S.C. (Pt. I) 1, where the claimant
immediately after the issuance of the award agreed in writing to pay the sum awarded against him.

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aided by lawyers who unethically abuse judicial processes,222 overcrowded judicial

dockets coupled with its complex procedural formalities and, finally the absence of
inbuilt checks in the laws to minimise abuses and indiscriminate use of statutory
permitted right of recourse to court combined to produce this insalubrious condition
for arbitration.

6. Closing the gap

Arbitration is commonly engaged in the context of trade, the financial market,
commerce, oil and gas industry, because it is presumed to proceed on the trajectory
underpins of parties’ consent, privacy and autonomy, coupled with its flexibility and
speed. The preservation of these cornerstones provided the pedestal for statutory
limitation of judicial intervention in arbitration. Practical experiences have shown
that some of the permitted instances of judicial intervention are sometimes open to
abuses which may result in inordinate delay and erosion of one of the mundane
bedrocks of arbitration; that is speed.
Against the foregoing backdrop, it is suggested that:

• Courts in performing their restricted oversight functions over arbitration

centred matters should invoke their inherent powers to summarily on paper
dismiss frivolous applications and on the other hand, speedily dispose of, all
meritorious applications on their merit.
• Statutorily, at the national level, awards emanating from domestic arbitration
should be accorded the status of a judgment of court; subject to registering
the commencement of the process with the court, through a notice jointly

Nine days after applied to the High Court to quash the award. The case travelled through the High
Court up to the Supreme Court. 13 years after the award upheld.
222
Triana Ltd v Universal Trust Bank Plc [2009] 12 NWLR (Pt. 1155) 313 (a case that illustrates the
extent some lawyers go to file unmeritorious application to delay enforcement of award). Triana
through their lawyer applied to the High Court to set aside the award against it on the ground that
one of the arbitrators who incidentally was appointed by Triana, did not disclose to them that he
was a solicitor to Liberty Merchant Bank (a non-party to the arbitral proceedings) in another suit, in
which Globus was a party. Before hearing, UTB applied to enforce the arbitral award. Both
applications were consolidated and after hearing both sides Triana’s application to set aside the
arbitral award was dismissed and UTB’s application to enforce the award was granted. Aggrieved
by the ruling, Triana appealed to the Court of Appeal. The Court of Appeal heard the appeal and
dismissed it eight years after the award.

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signed by parties. This will dispense with the requirement of subjecting

arbitral awards to the crucible of recognition prior to enforcement.223

• It is further suggested that a timeline within which courts may dispose of

arbitration centred causes should be introduced into the civil rules of courts.

• As a general strict legal rule, arbitration award are final decision. In other
words, review of arbitral award is an exception to the general rule of finality.
Towards reinforcing the finality of arbitral award, it is recommended that
judicial review of arbitral award be restricted to one tier judiciary as against
the extant multi-tier judicial review. This can be achieved by restricting post
arbitral award intervention to either the Supreme Court or the Court of
Appeal.

Finally, despite the arguments for and against restricted judicial intervention
in arbitration,224 experience has shown that in the interest of efficacy and clothing
the arbitral process with the stamp of governmental authority, it is imperative that
national Courts retain a modicum of supervision over arbitration.225 However, in the
performance of this role, courts are to preserve the autonomy of the parties and the
process226 and avoid situations that tend to scuttle the process. 227 If adopted, the
above recommendations will aid in achieving parties autonomy, eliminate inordinate
delay in arbitration centred litigation and reinforce in practice the finality of the
arbitral award. Until such time and in the light of extant statutory exceptions, the
court should only interfere in arbitration only when it is expedient to and inexpedient
not to.228

223
An arbitral award should be subjected to the same condition of registration of judgments of court
of other States. See sections 104 and 105 of the Sheriffs and Civil Process Act, Cap S 6 LFN 2004.
224
Thomas, n 44, He advocated for a greater role for the courts in arbitration.
225
For example, Art. 34 of the UNCITRAL Model Law, authorises National Courts to intervene by
setting aside awards in situations where the basic rights of parties have been breached or where an
arbitral tribunal has acted beyond its jurisdiction. See also Williams, n 38

226
CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK [2011] SGCA 3, [2011] 4 SLR
305.

227
AES Ust Kamenogorks Hydropower Plant LLP v Ust Kamenogorsk Hydropower Plant JSC (2011)
EWCA Civ 647, [2012] 1 All ER (Comm) 100.

228
Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] SGCA 28, [2007] 1 SLR(R) 32.

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C O VI D -19 A N D T HE E M E R GI N G N E W F AC E O F L E G AL P R ACT I CE
By
Yusuf Olaolu Ali (SAN)

A B S T RA CT
The Coronavirus (COVID-19) came and gave countries all over a roller coaster
experience. Citizens woke up daily to alarming statistics reflecting a rapid spread
of the virus and its health challenges. Myriad of instructions flew about the media
on how countries should respond to prevent the spread and flatten the curve and
it no doubt with its attendant implications had its immediate and future social,
economic, and political implications. The focus of this article is the impact of the
pandemic on the practice of law. Various issues are considered in this regard,
including traditional mode of practicing law before the advent of technology. The
article considers the global trends in the practice of law and how law firms can
bring themselves up to live up to expectation in order avert the impact of the
consequences of the epidemic. It finally discusses third party funding as a new path
the practice of law is charting in the new age. It concludes that the time has come
to change the face of the practice of law, as the demands brought on by the impact
of the epidemic can only be met by law firms that flow with the new tide. In this
paper, we will be taking a look at how the Legal Profession has been affected by
the pandemic. In doing this, the body of this paper will be divided into three parts.
The first part will discuss the traditional practice of the legal profession, which was
prevalent in the period before the pandemic. The second part will look at the effect
of the pandemic on the practice of the legal profession. The last part will look the
new outlook of the legal profession after the scourge of the virus had blown over.

Keyword: Covid-19 and Legal Practice

1.0 I NT R O D U C T I O N
The coronavirus disease started as a minor health issue in China, in the latter part of
2019. By the end of January of 2020, it rapidly gained ground and was declared a
global pandemic by the World Health Organisation (WHO) on 11th March, 2020229.
As at the beginning of May, 2020, the organization had recorded over 3.9 million

229
‘Rolling updates on coronavirus disease’ (COVID-19)
<https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen>.

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cases of the disease and over 270,000 deaths resulting from it.230 To curb further
spread of the disease, governments the world over imposed lockdown on all their
citizens and directed compulsory quarantine for infected individuals. This restriction
of movement inevitably meant companies, factories, firms, schools, places of
worship, entertainment centers and all sorts of business concerns shut down and
stopped production of goods and services.

The COVID-19 disease, as was expected, presented a challenge unprecedented, both

for the economy and of the legal system was not left out. Businesses worldwide
began to take steps to find their way through the challenges occasioned by the rapid
spread of COVID-19 (coronavirus), it became more imperative than ever that
companies and firms be ready with solutions to address risk issues as they arise.
Beyond the obvious health-related consequences, this global pandemic has
presented major interference for global businesses.

2.0 T HE T R A D I T I O N A L P R A C T I CE O F L A W
Until recently, the practice of law took place in law firms. Every firm has as a basic
necessity, a meeting or conference room for meetings with clients and a study library
for legal research. The practice of law was serious work. It was sacrilegious for non-
lawyers to carry on the practice of law, or for lawyers to practice their profession
through the internet.231
In the years when the traditional model of law practice held sway, it used to be that
if a company needed legal services, they would most likely be attracted to the most
expensive commercial building in town where one would wait in an impressive
mahogany-encased reception area with shiny marble floors before being met with
expensively dressed attorneys in a conference room with the best view in the city.
No matter what the legal problem is, the impressive law firm would handle it for
you. The partners had practiced together for years, after growing up as associates
together. They all knew each other and they are well known. The bills were huge,

230
‘COVID-19 Coronavirus Pandemic’ <https://www.worldometers.info/coronavirus/>. By the end
of June, there was a record of over 10 million cases with about 5 million recoveries and about
500,000 deaths accessed 21st June 2020. Accessed 22nd June, 2020
231
Olayanju Phillips: ‘Nigeria: What Will The Practice Of Law Look Like In The "Gig" Economy Of The
Future And How Will That Impact Legal Business Structures And Ethical Considerations?’ (Mondaq
AL, 8th August, 2019) <https://www.mondaq.com/nigeria/law-department-
performance/834624/what-will-the-practice-of-law-look-like-in-the-gig-economy-of-the-future-
and-how-will-that-impact-legal-business-structures-and-ethical-considerations?login=true>
accessed 23rd June, 2020

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but one didn’t really have a choice. Somebody has to pay for those granite floors
and the multi-million-dollar views.232

The traditional image of a law firm has, over the years, metamorphosed from a one-
man show (sole proprietorship) to a partnership model,233 led by one or more
Partners. Traditionally, partnership carries with it twelve distinct attributes:
agreement, number of partners, business, profit motive, conduct of business, entity,
unlimited liability, investment, transferability of share, position, mutual confidence
and free operation.234

Partners are legally entitled to share in the profits of an organization and are equally
liable for all the debts of the organization. In a law firm, there is no hierarchy among
partners, only between partners and associates (non-partners). Thus, an associate
usually joins the firm and puts in long hours of work to rise through the ranks to
become a partner.235

A significant feature of the partnership model of traditional law firms is the

allegiance of lawyers to their firms, which is mirrored by the devotion and
commitment of clients, many of whom trust one firm to cater for all of their legal
needs and valued stability over cost-effectiveness.236It is therefore not unusual to see
a lawyer join a firm and remain there for years in exchange for a regular income and
added benefits, such as insurance and pension annuities. Conversely, long, billable
hours, a poor work-life balance and general dissatisfaction with one's career are also
common traits of the traditional legal practice.237

232
Aaron Gott & Jarod Bona: ‘Disrupting the Traditional Law Firm Model’ (CIO Story)
<https://ciostory.com/cxo-perspective/disrupting-the-traditional-law-firm-model/> accessed 23rd
June, 2020
233
A partnership is a voluntary association of two or more persons who jointly own and carry on a
business for profit. BA Garner, Black's Law Dictionary (7th ed, West Group 1999) page 1142. In a
partnership the partners share ownership, as well as the responsibility for managing the business
and the income or losses the business generates. Business encyclopedia
<https://www.shopify.com/encyclopedia/partnership> accessed 25th June 2020
234
Alejandro Hauser, ‘Characteristics of Partnership’ (Business Finance Articles, February 26, 2020)
<https://businessfinancearticles.org/characteristics-of-partnership> accessed 24 May 2020
235
This may take between 10 to 15 years or more.
236
JW Jones, "The Challenge of Change: The Practice of Law in the Year 2000" (1988) 41 Vanderbilt
Law Review 683, 689.
237
A recent study showed that improving work-life balance was an important factor behind lawyers
choosing to work flexibly. Matthew Kay, 'Contract lawyering – the global gig economy for lawyers'
(Asia Law Portal, 20 October 2017). <https://asialawportal.com/2017/10/20/contract-lawyering-
the-global-gig-economy-for-lawyers> accessed 25 June 2020.

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From the service delivery angle, the traditional law firm service model is based on
what works for the firm. What the firm is set up to do. How its practice groups
operate. How busy its people are. How many billable hours and how much revenue
engagements will generate.238What is more? All these services are carried out in
analog mode. Instructions are mostly received face to face, and carried out by sorting
through loads and loads of physically documents. This would normally last for days,
thereby taking up more time. Instruction within the office also passed through the
same analog mode. That was before—the market is changing.

Recent advancements in digital technology are precisely transforming the ways in

which information is created, stored, and conveyed. Moreover, these developments
are making inroads into artificial knowledge production, thereby potentially entering
the intellectual and human aspect of law.239

3.0 T HE C O V I D -19 I M PA C T O N T HE T RA DI T I ON AL P R ACT I CE O F L A W

As the countries the world over, take steps to run for cover from the pandemic’s
indiscriminate ravaging on the land, every other concern has ground to a halt.
Contact of any form is strongly advised against, shops, offices, institutions, pubs and
gatherings of any form, are shut down. Thus, it came to be that life as it was in a
period as recent as February, 2020, became ‘the good old days’. The world ‘normal’
as it relates to our daily lifestyle, takes on a whole new meaning. The COVID-19
pandemic ultimately changed our social, political, cultural and economic
foundations in society as a whole.

No business concern, law offices inclusive, is insulated from the effects of the
pandemic. Global economic structure, global mobility, role of government, health
care delivery, business digitization and tech, virtual workforces, digital purchasing
preferences, social boundaries and educational system are all reflective of changes
occasioned by the effect of the pandemic.240

238
Ralph Baxter: ‘Innovation Will Change the Law Firm Business Model’ (Legal Services Today,
February 4, 2020) <https://www.legalservicestoday.com/2020/02/innovation-will-change-the-law-
firm-business-model/> accessed 25 June 2020.
239
Salvatore Caserta & Mikael Rask Madsen: ‘The Legal Profession in the Era of Digital Capitalism:
Disruption or New Dawn?’ (Laws, 4 January 2019)
<https://www.researchgate.net/publication/330149421_The_Legal_Profession_in_the_Era_of_Di
gital_Capitalism_Disruption_or_New_Dawn/fulltext/5c302d56a6fdccd6b5929fb0/330149421_The
_Legal_Profession_in_the_Era_of_Digital_Capitalism_Disruption_or_New_Dawn.pdf?origin=publi
cation_detail> accessed 26 June 2020.
240
The Legal Profession in a “Post COVID” World – Part 1 (April 22, 2020)
<https://www.jdsupra.com/legalnews/the-legal-profession-in-a-post-covid-14526/> accessed 26
June 2020.

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For the immediate response to the lockdown law firms took the following steps:
• restricting international and domestic travel by our employees;
• requiring self-isolation by employees who have recently travelled overseas;
• keeping our employees constantly informed of the ongoing situation; and
• taking steps to ensure that our premises are properly sanitized and secured.
With the help of a solid WiFi connection, colleagues who were once down the hall
are now reachable only via video conferencing. The teleconferencing service Zoom
has emerged as an essential link for work life. For traditional litigation lawyers, the
inter-jurisdictions travel required to attend to cases outside jurisdiction or attend
meetings has been rendered virtually impossible. And in a practice that prizes in-
person meetings (helpful to determine a witness’ credibility in an interview or take
a interpreted a client’s demeanor) virtual communication has become
commonplace.241
By the time this phase is over, the legal industry would have undergone a
transformation turbocharged by the pandemic. The traditional model of law practice
would have become a thing of the past and law would have fully been propelled into
the digital age and its landscape reshaped.242

With all the government restrictions put in place to control the spread of the Covid-
19 disease, the impact felt by the legal profession can be loosely categorized as
financial, operational, technological and human resources.
For the financial impact, the expenses for a law firm remain the same during
lockdown and a larger part of these expenses are allocated towards salaries, office
and other operational expenses. The revenue of most law firms has already declined
during the lockdown and this is expected to continue. One of the reasons is clients
are either shutdown or working with limited staff and new briefs are not
forthcoming.
In the operational and technological angles, since the work of lawyers (especially
litigation lawyers) is largely contact based, the inability to work remotely due to lack
of access to computer hardware and/or the IT facilities required, has brought work
in some law firms to a halt. The restriction on access to courts has dramatically
impacted the functioning of all attorneys’ firms, regardless of size. All the litigation
lawyer is able to accomplish during the lockdown is drafting and typing of processes
which cannot be filed at the moment. This will have an adverse knock-on effect once
the lockdown has been lifted. The bottle neck at the courts will then become evident
and will add to inefficiencies.
241
C. Ryan Barber: ‘NewNormal Sets In for White-Collar Lawyers in the Virus Era’ (March 20 2020)
<https://www.law.com/nationallawjournal/2020/03/20/new-normal-sets-in-for-white-collar-
lawyers-in-the-virus-era/#? accessed 26 June, 2020.
242
Mark. A. Cohen: ‘COVID-19 WILL TURBOCHARGE LEGAL INDUSTRY TRANSFORMATION’ (Mar 24
2020) <https://www.forbes.com/sites/markcohen1/2020/03/24/covid-19-will-turbocharge-legal-
industry-transformation/#3bd4b9ec1195> accessed on 26 June 2020.

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For human resource consequences, once the ability of a law firm, regardless of its
size, to generate an income is severely constrained, then it will have to reduce costs
and the biggest cost is always salaries. Predictably pay cuts, job reduction and
retrenchments will be a necessary measure to ensure the survival of the firm.
Unfortunately, such reduction in costs may not be enough to ensure the continued
existence of the firm and we are likely to witness the closure of several law firms
over the next few months if no financial growth is experienced.
The harsh effect of the pandemic notwithstanding, law firms who are on the feet and
who hit the ground running after the lockdown will, find that briefs will still be
plenty of work for the industry overall. For instance, clients would need assistance
in seeking to address supply chain disruptions or out-of-court debt restructuring
amid financial challenges. Further, long after this health crisis is over, courts will be
grappling with untold numbers of litigation disputes concerning whether parties are
excused from performance of their contractual obligations during this health crisis
The cancellation and postponement of major conferences, trade shows and other
large events will also generate legal work extending beyond the corona virus
pandemic. Human right lawyers should also be gearing up for a steady stream of
human right violation-related litigation. Insurance-related disputes are likely to
spike in the near term. Additionally, a nosedive by the economy likely would
generate much more activity in the bankruptcy/insolvency space. A downturn in the
economy historically speaking means an uptick in disputes, both in litigation and in
arbitration, with that increase will inevitably come more and more opportunities for
the litigation industry.243 Arbitrators are more likely to get more to do that before
the pandemic, as the whole nature of the arbitral process would lend a smooth
transition to conduct of proceedings remotely.

4.0 S UR VI V A L O F T H E L E G A L P R O FE S S I O N P OS T C O VI D -19
At this juncture, one thing is certain, the scourge of COVID-19 will pass. When, at
what cost and what its lasting impact will be are the open questions. It is also certain
that when the immediate crisis of the pandemic abates, life will be different.
Law firms have never rushed into anything. So many are still working their way
through the third industrial revolution, that used electronics and technology to
automate production. Sadly, the Covid-19 pandemic has propelled many firms into
the fourth industrial revolution, a transition for which many are not prepared.244

243
LYLE MORAN, ‘The high demand for lawyers amid the coronavirus pandemic’ (March 17, 2020)
<https://www.abajournal.com/web/article/lawyers-and-law-firms-say-they-are-inundated-with-
coronavirus-related-queries> accessed on 27 June, 2020.
244
Stephen Mabey, ‘Canada: The Impact Of COVID-19 On How Law Firms Do Business When It Is
Just A Memory’ (27 March 2020) <https://www.mondaq.com/canada/strategic-
planning/908460/the-impact-of-covid-19-on-how-law-firms-do-business-when-it-is-just-a-
memory> accessed on 27 June, 2020.

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Prior to Covid-19, the growth for support for the trend towards reduced space
commitment and work-at-home practice for lawyers was slow. Cloud-based systems
were being explored and slowly adopted as trust levels increased.245 There was only
basic involvement in the use of technology like:

a. Google Suite or Microsoft Office for email, calendar, and documents

b. Paperless office tools such as a remote backup and external hard drive
c. Law practice management software (this may also include Timekeeping and
billing services for the office)
d. Accounting software
e. (if it is not part of your practice management software)
f. Legal research tools (e.g. law pavilion, legalpeadia, compulaw, law digest
etc)246
However, new areas that have come up and in which law firms need to up their game
(if they have already done that) and they include but are not limited to:
• Cloud computing
• Cybersecurity – office, and home
• Video conferencing – cameras, screen resolution, the capacity of video cards
• Home computers
• (Virtual Private Networks) VPNs.247
Putting it more broadly, below is a basic outline of the types of functions and tools
that you need to keep your practice going maximally while working remotely.
a. Storage: Cloud storage lets you, your colleagues, and your clients all have
controlled, secure access to relevant information and documents.
b. Communication: You, your team and your clients have all been
experiencing a tremendous amount of personal and professional change as a
result of the COVID-19 pandemic impacts. Since most people are working
remotely (many for the first time) and meeting face to face is currently not
an advised option, finding other ways to stay well- connected are critical.248
When everyone is working from home, you make less communication via
the phone. Secure email, chat, and instant messaging tools keep things

245
‘The Legal Profession in a “Post-COVID” World – Part 3, The Changing Nature of the Firm’ (April
29, 2020) <https://www.jdsupra.com/legalnews/the-legal-profession-in-a-post-covid-42551/>
accessed on 26 June 2020.
246
The Lawyerist Editorial Team ‘Guide to Starting a Law Firm’ ,<https://lawyerist.com/starting-law-
firm/> accessed 26 June, 2020.
247
Ibid note 15.
248
Kendra Edson, ‘Four Survival Strategies for Law Firms During COVID-19’ (Armanino LLP, April 7
2020) <https://www.armaninollp.com/articles/four-survival-strategies-law-firms-covid-19/>
accessed on 27 June 2020.

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moving forward. In addition, special apps that enable teamwork &

collaboration keep members who are missing in the loop and on point.
c. Task Management: With physical projectors, wallboard and check-in
meetings not possible, digital task management makes sure nothing falls
through the cracks.
d. Video Conferencing: Don’t underestimate the need to speak to clients &
colleagues “face-to-face.” Reading facial expressions does a lot to maintain
your personal connection and prevent the kinds of misunderstandings that
can be common via email. Free video conferencing abound in loads all over
the internet e.g. Skype, 8x8 Video Meetings, Cisco Webex Meetings,
Google Hangouts, Free Conference, Zoom meetings etc.249
e. Password Manager: As a “virtual lawyer”, you’ll have more passwords
than ever. Cloud-based password managers keep everything secure and are
always accessible to make sure you’re never locked out again.
f. VOIP (Voice Over Internet Protocol): Mobile phones are good, but the
connections can be faulty, especially from your home office! VOIP, puts
your phone calls through the cloud, with better clarity & reliability. Some
even include the ability to review & discuss documents together on a call.
g. Legal-specific Operations: Excellent cloud solutions are available for all
legal practice operations, including: accounting, billing, case management,
and more.250

The courts are also not left out of the loop. The inaccessibility, cost, formality,
abstruse rules, and protracted processes of courts in their present guise is misaligned
with life in the digital age. The urgency of modernization is unprecedented. Courts
around the world have ground to a halt when demand for accessible, efficient, and
widespread administration of justice is desperately needed. In essence, to align with
the post Covid-19 practice of the law, court would have to go digital.251

5.0 T HI RD P A R T Y F U N D I N G
Another change to the way lawyers have done business in the last 20 years, is third
party funding of litigation. This refers to when a commercial party has a meaningful
claim against another party but lacks the ability to fund litigation. In this instance,
the third party funder takes a percentage of the recovery. The issue with third party
funding raises concerns that the lawyer is improperly funding a litigation, or that the
third party funder may direct the lawyer in ways inconsistent with the client's best

249
Nate Drake and Brian Turner ‘Best video conferencing software in 2020’ (19 June 2020)
<https://www.techradar.com/best/best-video-conferencing-software> accessed 25 June 2020.
250
CosmoLex ‘How to Practice Law from Home’available at https://www.attorneyatwork.com/how-
to-practice-law-from-home/ accessed on 7 May, 2020.
251
Ibid note 14.

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interests, or there may be a breach of attorney-client privilege, among other

things.252 Nigeria is gradually moving towards recognising third party funding of
litigation, although there are no recognised government or public third party funding
institutions in Nigeria as this activity is not currently commercialised. Some private
legal entities are springing up as third party funding institutions. One such entity is
AetasLF253, a private legal funding initiative focused on Nigeria.254 Law firms are
likely to go the way of third-party funding for deserving cases (that is litigation
financing), this will help cushion the effect of the loss occasioned by the pandemic.

6.0 C ON CL U S I ON
In this paper, we have taken a look at the impact the covid-19 global pandemic has
had on the legal profession. This was done by looking at the traditional practice of
law, the effect of the pandemic and the legal profession after the pandemic has blown
over. We also took a look at third party funding as a new way for lawyers to get
more finance in the new legal era.

Ten years from now, law firms would have had a better outlook than they do today
due to debut of digital technology, at least to outside lay observers looking at their
websites and public sources of information. To the experienced eye, however, their
modus operandi will have changed dramatically, their competitive worlds will have
advanced rapidly, and their leadership ranks will have turned over. How clients and
their law firms work together will likely be different in material ways. Some of this
have started happening, albeit slowly, before the pandemic, however if the overall
society is reconfigured by the current pandemic, the changes in law practice will be
more profound.

In summary, as a new world lawyer, whatever you do in post pandemic practice, you
have to know that the expectations from clients are also quickly changing. Clients
now expect to be served with the speed of time. Trust, transparency, managed risk,
convenience, and preemptive delivery are some of the new drivers of change. All
these cannot be achieved under the old model of law practice. The COVID -19
pandemic has created an opportunity for lawyers to be creative and put on their
thinking caps to overcome the challenges created by the pandemic. The time has
come for law practice to raise the Bar to blend with the technological age, best
practices, and modern trends.

252
Steven Richman ‘Legal profession facing challenges from all sides’ (Alliott Group, 22 February
2018) <https://www.alliottgroup.net/practice-management-resources-for-owner-managed-
firms/future-of-legal-profession/> accessed on 27 June, 2020.
253
A private legal funding initiative mostly focused on Nigeria.
254
J. Ibebunjo et al. ‘The Third Party Litigation Funding Law Review - Edition 3NIGERIA’ (The Law
Reviews, December, 2019) <https://thelawreviews.co.uk/edition/the-third-party-litigation-
funding-law-review-edition-3/1212065/nigeria> accessed on 26 June, 2020.

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N AT I O NA L H U M A N R I G HT C OM M I S S I ON : A G E N E R AL A S S E S S M E NT *

By
Olugbenga Damola FALADE

A B S T RA CT
Infringement of Fundamental Human Right is not only
antithetical to Nigerians’ rights; it also manifests social injustice
and is symptomatic of societal decay. The creation of National
Human Right Commission is a major move by the Nigerian
government to tackle the hydra-headed problem of infringement
of fundamental human right through the instrumentality of
mechanism of law. This paper assesses the National Human Right
Commission as an institution saddled with the responsibility to
combat the problem of infringement of fundamental human
right and offers suggestions for improvement.

Key words: Human Right Commission, Human right violation,

Human right,

1.0 I NT R O D U C T I O N
National Human Rights Commission can be defined as a state-sponsored and
state-funded entity set up under an Act of the Legislature or under the
Constitution, with the broad objective of protecting and promoting human
rights.255 This institution more often is formed by the Governments not because
of their commitment to human rights issues but because of the international
pressures and a way to improve their human rights images.256 Human rights
groups have consequently viewed these institutions with a large degree of
skepticism.257 Nigeria being a member of the international community and a
party to several international treaties which include the Convention on the

*Falade Olugbenga D., Lecturer, Osun State University, Faculty of Law Ifetedo Campus, Osogbo
255
Human Right Resource Center of University of Minnesota. Module 23 National Human Rights
Commissions and Esc Rights. Retrieved July 12, 2020 from
http://hrlibrary.umn.edu/edumat/IHRIP/circle/modules/module23.htm
256
Such is the fate of the National Human Rights Commission (NHRC), established in 1995 by the
most unlikely person, General Sani Abacha, the former Nigeria Military President.
257
Ibid.

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Elimination of All Forms of Discrimination Against Women (the "CEDAW"),

the Convention on the Rights of the Child (the "CRC"),258 the International
Convention on the Elimination of All Forms of Racial Discrimination (the
"ICERD"),259 the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (the "CAT,,),260 the International Covenant
on Civil and Political Rights (the "ICCPR"),261 and the International Covenant
on Economic, Social and Cultural Rights (the "ICESCR") has obligation to deter
and prevent violations of human rights, and to investigate, prosecute, and
remedy their abuses.262 These rights are contained in international treaties and
Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as
amended which provides for: right to life, dignity of human person, to personal
liberty, fair hearing, private and family life, to freedom of thought, conscience
and religion, of expression and the press, to peaceful assembly and association,
to freedom of movement, from discrimination and the right to acquire and own
property anywhere in Nigeria. With this constitution and international treaties in
place, Nigeria is littered with violation of fundamental human rights, which are
suppression, discrimination, torture, extrajudicial killing, unlawful detention,
insurgency, slavery, kidnapping, disappearances, genocide, poverty, refugees.
The rights of people continue to be ignored in atrocious ways. In the view to
correct these abnormalities the Nigeria Government established National Human
Rights Commission and saddles it with the authority to deal extensively with
human rights issues.

The Commission serves as an extra judicial mechanism for the enhancement of

the enjoyment of human rights and is aimed at creating an enabling environment
for the promotion, protection and enforcement of these rights. It also provides
an avenue for public enlightenment, research and dialogue in order to raise
awareness of these key rights issues.263 Despite the existence and effort of the
Commission on the fight for human rights protection in the country, the situation

258
Ratified April 19, 1991
259
Ratified January 4, 1969.
260
Ratified July 28, 2001.
261
Ratified October 29, 1993.
262
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of international Human Rights Law and Serious Violations of International Humanitarian
Law, March 21, 2006, adopted by the 60th session of the United Nations General Assembly,
AJRES/60/147, paras. 11 (c) and 24.
263
Agbamuche-Mbu. M. 2014. Nigeria and its Human Rights Commission. This Day Live. Retrived
June 24, 2020 from
https://web.archive.org/web/20150402095128/http://www.thisdaylive.com/articles/nigeria-and-
its-human-rights-commission/191769/

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of human rights has still not changed for better. The level of human right
violation in Nigeria has increased up to the point where it has become a culture
which is practiced with impunity.264 It is sadden to note that with series of recent
incidents of human rights violation gives the impression that the rights of the
citizens are not adequately protected by the Commission.

This paper therefore assesses the National Human Rights Commission as an

institution saddled with the responsibility to combat the infringement of
fundamental human right to the level of eradication or at least, to an acceptable
level in Nigeria. In the process of making the assessment, the paper addresses
the establishment of the commission, its Composition and administrative
structure, power and function of the commission, and examines the likely
reasons for its non-performance in critical areas of its assigned jurisdiction, and
proffers solution to its problem.

2.0 E S T A B L I S HM E N T O F T HE C OM M I S S I ON
Article 1 of the Charter of the United Nations proclaims that one of the purposes
of the United Nations is to achieve international cooperation in promoting and
encouraging respect for human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion. In build this, in 1946 at the
second session of the UN Economic and Social Council (ECOSOC), a
foundation for setting up of National Human Rights Institutions was laid as it
was agreed that member States should consider establishing bodies in form of
'information groups or local human rights committees' that will serve as a
conduit for collaborations with the UN Human Rights Commission.’265 At the
first International Workshop on National Institutions for the Promotion and
Protection of Human Rights held in Paris on 7–9 October 1991 principles were
made and tagged Paris principles. These Principles list a number of
responsibilities for national institutions, which fall under five headings,
a. The institution shall monitor any situation of violation of human rights which
it decides to take up.
b. The institution shall be able to advise the government, the parliament and
any other competent body on specific violations, on issues related to
legislation and general compliance and implementation with international
human rights instruments.
c. The institution shall relate to regional and international organizations.

264
Ibid.
265
B. Lindsnaes and L. Lindholt, "National Human Rights Institutions: Standard Settings and
Achievement" in B. Lind.snae et al (OOs.), National Human Rights Institutions: Articles and Working
Papers (Copenhagen, Denmark: Danish Centre for Human Rights, 2000), pp. 1-48.

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d. The institution shall have a mandate to educate and inform in the field of
human rights.
e. Some institutions are given a quasi-judicial competence.266

These principles were adopted by the United Nations Human Rights

Commission by Resolution 1992/54 of 1992, and by the UN General
Assembly in its Resolution 48/134 of 20th December 1993. In line with this
resolution of the United Nations General Assembly, Nigeria established the
National Human Rights Commission by the National Human Rights
Commission (NHRC) Act, 1995 as amended by the National Human Rights
Commission Act, 2004267 and further by National Human Rights Commission
(Amendment) Act 2010. The Act saddles the commission with the authority to
deal extensively with human right issues while taking into consideration the
provisions of the constitution of the Federal Republic of Nigeria and
international treaties.

3.0 C O M P O S I T I ON AND A DM I NI S T RAT I V E S T R UCT URE IN

G UA R A N T Y I N G I N D E PE N D E NCE A N D P L U RAL I S M O F NHRC
The provisions of the Paris principle advocate for the pluralism and
independence of National Human Right Commission.268 It states that the
composition of the NHRC shall be established in accordance with a procedure
which affords all necessary guarantees to ensure the pluralist representation of
the social forces (of civilian society) involved in the protection and promotion
of human rights. It states further that the members shall be representatives of,
non-governmental organizations responsible for human rights and efforts to
combat racial discrimination, trade unions, concerned social and professional
organizations; trends in philosophical or religious thought; universities and
qualified experts; Parliament; and Government departments.269 It expresses that
in order to be of independence of the Government, the NHRC must have an
infrastructure which is suited to the smooth conduct of its activities, in particular
adequate funding.270

Nigeria in given the explicit agreement formed a 16 members Governing

Council, all of whom are engaged on a part time basis apart from the Executive
Secretary,271 to be responsible for the discharge of the functions of the
266
National Human Rights Institutions Implementing Human Rights. Danish Institute for Human
Rights, 10th December, 2003. P. 6
267
Cap. N46 Laws of the Federation of Nigeria, 2004
268
Hereinafter refers to as NHRC
269
UNGA Res 134 (1993) GAOR 48th Session UN Doc A/RES/48/134. Paris Principles
270
Ibid
271
Section 7 (1) National Human Right Commission (Amendment) Act 2010

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Commission. The Council consists of people from different areas of

specialisation, whom are,272

a. “a Chairperson who shall be a retired Justice of the Supreme Court, or Court

of Appeal, or a retired Judge of the Federal High Court or High Court of a
State or a legal practitioner with 20 years post qualification experience and
requisite experience in human rights
b. a representative each of the Federal Ministry of:
Justice, who shall not be below the rank of a Director;
Foreign Affairs, who shall not be below the rank of a Director;
Internal Affairs, who shall not be below the rank of a Deputy Controller of
Prisons;
c. 3 representatives of registered human rights organizations in Nigeria;
d. 2 legal practitioners who shall not have less than 10 years post qualification
experience to be appointed on the recommendation of the National Executive
Committee of the Nigerian Bar Association;
e. 3 representatives of the print and electronic media, one to represent the
public and two to represent the private sector;
f. a representative of organized labour;
g. 2 other persons who shall be women with sufficient experience in human
rights issues; and
h. the Executive Secretary of the Commission.”

While it is clear that the governing body of the NHRC has persons drawn from
the NGOs, Trade Unions, Legal Profession, Government, Media, and Organised
Labour, which gives credit to the Government in the area of plurality as
emphasised in the Paris Principles, the issue of independence is still there. He
who appoints and finances has the power of control. The establishing Act states
that, the Chairman and members of the Council must be persons of proven
integrity and appointed by the President, subject to the confirmation by the
Senate.273 This is inimical to the independence of the commission. The President
should not be the one to appoints and senate confirms as they are both politicians
and they will not appoint any person that will not present their Government to
the outside world in a better and their prefer way.

There are four functional units in the administrative structure of the Commission
namely,274 internal Audit Unit, Information and Communication Technology

272
Section 2(2) National Human Right Commission (Amendment) Act 2010
273
Section 2(3) National Human Right Commission (Amendment) Act 2010
274
Retrieved July 11, 2020 from https://www.nigeriarights.gov.ng/about/administrative-
structure.html

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Unit; Office of the Executive Secretary (Special Duties), and Complaints

Registry. Also there are thirteen departments in the administrative structure of
the commission namely: AMO Department, Finance and Accounts Department,
Human Resources Management Department, Monitoring Department, Legal
Service Enforcement Department, Civil and Political Rights Department,
Planning, Statistics and Documentation, Human Rights Institute, Women,
Children and Vulnerable Groups, Human Rights Education and Promotion
Department, Corporate Affairs and External Linkages Directorate, Procurement
Department, and Economics Social and Cultural Rights Department.275 The
Commission operates six zonal offices representing the six geo-political zones
in Nigeria, and these are, North-west, North-East, North-Central, South-West,
South-east and South-South. Each Zonal office is headed by a Zonal
Coordinator. At present, NHRC has state offices in all 36 states in Nigeria
including Federal capital territory.276

With all these offices can one easily say that the NHRC is accessible?
Accessibility refers to awareness of the institution by its physical accessibility,
location(s), and accessibility through its representative composition.277 An
NHRC cannot be accessible to a constituency that is ignorant of or ill informed
about its existence and functions. The absence of NHRC offices at the grassroots
often obstruct accessibility and awareness for those living in remote areas, or
who are otherwise unable to travel.278 Paragraph 139 page 18 of the UN Hand
book states thus,
“Full realization of human rights cannot be achieved solely through
the development of protective law and establishment of mechanisms
to implement that law. National human rights institutions, along with
intergovernmental and non-governmental organizations, can play an
important role in promoting human rights at the domestic level.”

4.0 P O W E R A N D F U N C T I ON S O F T HE C OM M I S S I ON
National Human Rights Institution functions are illustrated in the Paris
Principles as “responsibilities”, signifying that these are things that institutions

275
Ibid.
276
Retrieved July 11, 2020 from https://www.nigeriarights.gov.ng/about/overview.html
277
Centre for Human Rights, National Human Rights Institutions: A Handbook on the Establishment
and Strengthening of National Human Rights Institutions for the Promotion And Protection of
Human Rights, UN Training Series No. 4, U.N. Sales No. E.95.XIV.2 at 9 39 (1995) (hereinafter "UN
HANDBOOK").
278
Obiora Chinedu Okafor Shedrack C. Agbakwa 2002. On Legalism, Popular Agency and "Voices of
Suffering": The Nigerian National Human Rights Commission in Context. Osgoode Hall Law School
of York University.

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________________________________________________________________

are expected to do.279 The Paris Principles states two main responsibilities,
which are, ‘Human rights promotion, i.e., creating a national culture of human
rights where tolerance, equality and mutual respect thrive… Human rights
protection, i.e., helping to identify and investigate human rights abuses, to bring
those responsible for human rights violations to justice, and to provide a remedy
and redress for victims. National human rights institutions should have a legally
defined mandate to undertake these functions and to issue views,
recommendations or even seek remedies before the courts. In all cases, reference
should be made to the enabling law.’280

In Nigeria, the Commission has power to conduct investigations and inquiries,

institute any civil action in relation to the exercise of its functions, appoint any
person to act as an interpreter in any matter brought before it and to translate any
such book, paper or writing produced to it.281 Other powers include visitation of
persons, police cells and other places of detention in order to ascertain the
conditions thereon and make recommendations to the appropriate authorities;
make determination as to the damages or compensation payable in relation to
any violation of human rights; co-operate with and consult with other agencies
and organizations, governmental and non-governmental as it may deem
appropriate; and do such other things as are incidental, necessary, conducive or
expedient for the performance of its functions.282 The other functions of the
Commission include-283

a. deal with all matters relating to the promotion and protection of human rights
guaranteed by the Constitution of the Federal Republic of Nigeria, the United
Nations Charter and the Universal Declaration on Human Rights, the
International Convention on Civil and Political Rights, the International
Convention on Economic, Social and Cultural Rights, the Convention on the
Elimination of all forms of Discrimination Against Women, the International
Convention on the Elimination of Racial Discrimination, the Convention on
the Rights of the Child, the African Charter on Human and Peoples’ Rights
and other international and regional instruments on human rights to which
Nigeria is party;
b. monitor and investigate all alleged cases of human rights violation in Nigeria
and make appropriate recommendation to the President for the prosecution
and such other actions as it may deem expedient in each circumstance;
279
International Council on Human Rights Policy and OHCHR, Assessing the Effectiveness.
280
United Nations. 2010. National Human Rights Institutions: History, Principles, Roles and
Responsibilities. Professional Training Series. HR/P/PT/4/Rev.1. United Nations Publication. 4:20
281
Section 6(1), National Human Right Commission (Amendment) Act 2010
282
Ibid.
283
Section 5 National Human Right Commission (Amendment) Act 2010

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c. assist victims of human rights violation and seek appropriate redress and
remedies on their behalf;
d. Undertake studies on all matters pertaining to human rights and assist the
Federal, State and Local Government where it considers it appropriate to do
so in the formulation of appropriate policies on the guarantee of human
rights;
e. publish and submit, from time to time, to the President, national Assembly,
Judiciary, State and Local Governments, reports on the state of human rights
promotion and protection in Nigeria;
f. organise local and international seminars, workshops and conferences on
human rights issues for public enlightenment;
g. liaise and cooperate, in such manner as it considers appropriate, with local
and international organizations on human rights with the purpose of
advancing the promotion and protection of human rights;
h. participate in such a manner as it considers appropriate in all international
activities relating to the promotion and protection of human rights;
i. maintain a library, collect data and disseminate information and materials on
human rights generally; and
j. receive and investigate complaints concerning violations of human rights
and make appropriate determination as may be deemed necessary in each
circumstance;
k. examine any existing legislation, administrative provisions and proposed
bills or bye-laws for the purpose of ascertaining whether such enactments or
proposed bills or bye-laws are consistent with human rights;
l. prepare and publish, in such manner s the Commission considers
appropriate, guidelines for the avoidance of acts or practices with respect to
the functions and powers of the Commission under this Act;
m. promote an understanding of public discussion of human rights issues in
Nigeria;
n. undertake research and educational programmes and such other programmes
for promoting and protecting human rights and coordinate any such
programme on behalf of the Federal, State or Local Government on its own
initiative when so requested by the Federal, State or Local Government and
report concerning the enactment of legislations on matters relating to human
rights;
o. on its own initiative or when requested by the Federal, State or Local
Government, report on actions that should be taken by the Federal, State or
Local Government to comply with the provisions of any relevant
international human rights instruments;
p. refer any matter of human rights violation requiring prosecution to the
Attorney General of the Federation or of a State, as the case may be;

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q. where it considers it appropriate to do so, act a conciliator between parties to

a complaint;
r. where it considers it appropriate, with the leave of the court hearing the
proceedings and subject to any condition imposed by the court, intervene in
any proceeding that involves human rights issue; and
s. carry out all such other functions as are necessary or expedient for the
performance of its functions under this Act.

5.0 P RA C T I C E O F T HE C OM M I S S I ON
The practice of the commission in combating human right violation is to
organized activities ranging from public enlightenment and education,
investigation of complaints, mediation and conciliation, conflict resolution,
peace building, research advocacy and training programmes on contemporary
issues in the field of human rights.284 All these were carried out by an effective
complaint treatment mechanism, regular hosting of enlightenment seminar,
workshops, rallies and continuous re-engineering of strategies.285 These
practices of the Commission has been on since the creation of the National
Human Rights Commission by the National Human Rights Commission
(NHRC) Act, 1995 as amended by the National Human Rights Commission Act,
2004286 and further by National Human Rights Commission (Amendment) Act
2010. The violation of human right increases on a daily bases even of recent
people were killed, molested maim because they protected for an end to police
brutality and end to bad governance. People have being raped even in the IDP
camps without any tangible investigation from the Commission.

6.0 C H A L L E N GE S
The pertinent question therefore is: what are the factors responsible for
ineffectiveness of the NHRC despite the promulgation of NHRC Act 2010.
There are diverse impediments that are causing ineffectiveness on the
Commission. For example, he who creates the commission is the major breaker
of fundamental human right. Governance in Nigeria is characterized by acute
disregard for, and sadistic undermining of, these basic rights and fundamental
freedoms. A country where the Government decides which Court orders to obey
and which one not to obey,287 where army is being called upon to open fire on

284
Human Right Commission web page. http://nhrc2.aicee.net/index.php/about/strategic-
objectives
285
Ibid
286
Cap. N46 Laws of the Federation of Nigeria, 2004
287
Dasuki has been granted bail several times but the government had refused to release him. In
2016, a judge at the court of the Economic Community of West African States (ECOWAS) ordered
his release, saying his detention was unlawful and arbitrary. Also Sowore, who also founded news
website Sahara Reporters, was first arrested in August. He was released on bail but he was wrestled

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peaceful protesters288 where one is imprisoned without trial,289 raped without

justice,290 even arresting judges at midnight. With these entire atrocities one can
easily conclude that the Government is the major breaker of fundamental rights
in Nigeria. Who will NHRC reports its master to, he who pays the piper dictate
the turn. Also, Government Agencies especially the Nigerian security forces are
frequently violate rights of the people by carrying out arbitrary arrests, torture,
and extrajudicial killing. These agencies suppose to ensure human rights is not
violated and collaborate with NHRC on way forward but they seconded the
Government in violating human rights.

The National Human Rights Commission is working hard to place Nigeria

before the whole world has clean of arbitrarily breaching of human right of the
people but they just stands has hear piece of the Government. What is happening
in real life is not what they profess. They are double-edged sword that
strengthens democratic institutions by widening and enhancing a nation's
democratic space, but also mere straw men of a government's administrative
machinery to scuttle international machinery.291

Corruption is a destructive and complex practice which is openly accepted in

Nigeria, yet it remains ubiquitous in the working of society and economic life.292

to the ground by security officials in court, only hours after his initial release on bail to rearrested
him. Camillus E. 2019. Nigeria releases Sowore and Dasuki after AG orders bail
Retrieved on 20th July, 2020 from https://www.reuters.com/article/us-nigeria-politics-
idUSKBN1YS14V
288
Evidence gathered from eyewitnesses, video footage and hospital reports confirm that between
6:45pm and 9:00pm on Tuesday 20 October, the Nigerian military opened fire on thousands of
people who were peacefully calling for good governance and an end to police brutality. Amnesty
International
Retrieved on 2nd June, 2020 from https://www.amnesty.org/en/latest/news/2020/10/killing-of-
endsars-protesters-by-the-military-must-be-investigated/
289
At least three-quarters of Nigeria’s total prison population are inmates serving time without
being sentenced, 51,983 inmates are awaiting trial out of the prison’s total population of 73, 726
inmates. That is about 70 per cent of the total. Only 22, 773 inmates have been convicted. Ja’afaru
Ahmed. the Nigerian Correctional Service 2020 Retrieved on 29th July, 2020 from
https://www.prison-insider.com/en/nigeria-70-of-nigerian-prisoners-held-without-trial
290
NHRC Executive Secretary, Tony Ojukwu says that investigating allegations of sexual violence
especially in a conflict situation constitutes a serious challenge which is difficult to investigate as it
will be difficult for victims to provide evidence. NHRC webpage. Retrieved on 29 th July, 2020 from
http://nhrc2.aicee.net/index.php/nhrc-media/press-release/60-nhrc-partners-women-for-
women-int-l
291
AHM Kabir 'Establishing National Human Rights Commissions in South Asia: A Critical Analysis of
the Processes and Prospects' (2001) 2 Asia-Pacific Journal of Human Rights and Law 1;
292
Leena Koni Hoffmann and Raj Navanit Pate. 2017. Collective action on corruption in Nigeria A
social Norms approach to connecting society and institutions. Chatham House Report

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The country ranked 144th in the 180 countries listed in Transparency

International’s corruption Index.293 The consequences of corruption for the
country and its people are, moreover, indisputable. Acts of diversion of federal
and state revenue, business and investment capital, and foreign aid, as well as
the personal incomes of Nigerian citizens, contribute to a hollowing out of the
country’s public institutions and the degradation of basic services.294 Corruption
is really affecting the operation of National Human Rights Commission as one
of the country’s public institution.

Threat and intimidation by Security Agency on NHRC is another ill factor.

When the NHRC is not feel secure hardly will they be able to do their legitimate
duties. On 5 March 2012, Chidi Odinkalu, Chairman of the Governing Board of
the NHRC said that the Nigeria Police Force carries out torture and more than
2,500 extrajudicial executions annually. The Police summoned him to appear
before their Criminal Investigation Department for questioning as they are
“investigating [a] complaint of damaging remarks allegedly made by the
Chairman… against the Nigeria Police Force.”295 After which the Inspector
General of Police has admitted it.296 The Security Agencies must stop
undermining the Commission’s ability to carry out its mandate, which is in line
with the enabling Act and the Nigerian Constitution.

Other challenges are insufficient of funds, inadequate amenities, and ineffective

execution of the commission’s award.

293
Ojeka S. el. 2019. Corruption perception, institutional quality and performance of listed
companies in Nigeria. Heliyon volume 5. Issue 10
294
Leena Koni Hoffmann and Raj Navanit Pate. 2017. Collective action on corruption in Nigeria A
social Norms approach to connecting society and institutions. Chatham House Report
295
Amnesty International. 2012. Retrieved on 4th, August 2020 from
https://www.amnesty.org/en/latest/news/2012/04/nigeria-end-police-intimidation-national-
human-rights commission/
296
Ibid.

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7.0 W AY F O R W A R D
Autonomy, independence and impartiality are essential principles for an
effective and credible NHRI.297 The appointment, funding, and operational
guidelines of NHRC are controlled by the executive branch of government,
which is the most dangerous human rights predator. The constituent instruments
of the Commissions should be amended to grant them full autonomy and
independence to achieve desire goals. While independent of NHRC alone is not
enough to ensure the protection and promotion of human rights in states, it can
play a significant role in assisting the long-term development of a culture of
rights.298

The Paris Principles and ICC General Observations require that a NHRI should
have sufficient funding to allow it to undertake its mandated responsibilities. The
NHRC Act requires the Government of Nigeria to provide it with funding and
allows the Institution to fund raise from other sources.299 Approximately 95% of
the NHRCs funding comes from the National Government.300 The National
Human Rights Commission must be strengthened and adequately funded. Apart
from ensuring the financial autonomy of the Commissions, government should
be charged with the responsibility of providing technical and infrastructural
support and solidarity for their work. The Commission also can take steps to
source for funding from NGOs, International Organisations, companies and
individuals.

The executive branch including the Nigerian force especially the Police has the
onerous, important, and compelling duty to ensure prompt compliance with the
orders of the Commission. Human rights should no longer be a matter of
rhetoric.301 Rather, the government must constantly and deliberately seek to
advance the cause of human rights through implementation and execution of the
order of the commission and the courts. It is the Government as a state, which is
primarily responsible for guaranteeing the implementation and enforcement of

297
2010 ANNI Report on the Performance and Establishment of National Human Rights Institutions
in Asia The Asian NGOs Network on National Human Rights Institutions (ANNI). National Human
Rights Commission of Nepal (NHRC): Flaws and Challenges Informal Sector Service Centre (INSEC)1
298
Cardenas, S. 2002. National Human Rights Commissions in Asia. Human Rights Review 30: 42-48
299
Part IV Section 12 (3) of the NHRC Act.
300
Retrieved on 23rd August 2020 from https://www.nanhri.org/wp-
content/uploads/2016/04/NIGERIA.pdf
301
Dada, J. A. 2012. Impediments to Human Rights Protection in Nigeria. Annual Survey of
International & Comparative Law. Volume 18 Issue 1 Article 6

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human rights.302 This mandate is clearly enshrined in the Charter of the United
Nations as follows:

All members pledge themselves to take joint and separate

action in cooperation with the Organization for the
achievement of ‘universal’ respect for, and observance of
human rights and fundamental freedom.303
It is imperative for government to demonstrate pragmatic political will to
promote and protect human rights by obeying orders of the commission and the
court.

One of the advantages of National human rights institutions is that they enable
states to meet their international responsibility “to take all appropriate action” to
ensure that international obligations are implemented at the national level. 304 In
a country where most of these obligations are not domesticated, NHRC will
certainly be lacking behind and will not meet the international standard.
International treaties must be domesticated before it can be enforceable in
Nigeria. There are lots of international human rights treaties which Nigeria is
signatory to but are yet to be domesticated by the appropriate authorities as
enshrined in the Constitution.305 This appears to be merely a relic of Nigeria's
colonial past and there is no justifiable reason why treaties ratified by Nigeria
should not have automatic domestic application.306 Human rights instruments in
which Nigeria is a party to should be excluded from domestication by the
National Assembly before they become binding and enforceable in Nigeria. This
means that any international human rights instrument to which Nigeria is a party
will automatically become applicable and enforceable in Nigeria. By this,
Nigeria will be bound by all human rights instruments it ratifies based on pacta
sunt servanda.307

302
HUMAN RIGHTS: INTERNATIONAL PROTECTION, MONITORING, ENFORCEMENT 257 (Janusz
Symonides ed., 2003).
303
U.N. Charter art. 56. In addition, the Vienna Declaration and Programme of Action provide that
the protection and promotion of human rights is the first responsibility of governments. World
Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action,
preamble, 1, U.N. Doc A/CONF.157/24, (July 12, 1993).
304
United Nations. 2010. National Human Rights Institutions: History, Principles, Roles and
Responsibilities. Professional Training Series. HR/P/PT/4/Rev.1. United Nations Publication. 4:20
305
Section 12 of the Nigeria 1999 Constitution as amended
306
Egede E. 2007. Bringing Human Rights Home: An Examination of the Domestication of Human
Rights Treaties in Nigeria . Journal of African Law , 2007, Vol. 51, No. 2 (2007), pp. 249-284
307
Dada, A. D. 2012 Supra

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J UDE X A N D T HE T H E O R Y O F S CA PE G OA T I S M I N N I GE RI A :
D E C O N S T R U C T I N G A N D R E NE G OT I AT I N G T HE D OCT RI NE O F
S E PA R A T I ON O F P O WE R S
BY
W A HAB E GB E W OL E , Q A S I M A. E GB E W OL E & O L ANI K E A DE L A K UN 308

A B S T RA CT
The concept of Separation of Powers as an age long doctrine
recognizes the need for each arm of government to have specialized
functions and a working symbiotic relationship with themselves in the
delivery of good governance to the citizenry. This doctrine recognizes
the imperativeness of the impossibility of a water tight governmental
arrangement and thus expects harmonious working regime of partners
and equals. The control of the purse has however created a
senior/junior partner relationship over a long period of time and the
holding of sway by the military in the Nigerian contemporary history
further compounded this clear dichotomy where the command
structure determines who gets what and who does what in the realm
of governance. The recent experience in Nigeria with regards to the
mantra of anti-corruption regime pitched the Judiciary against the
Executive on one hand and the Legislature against the Executive on the
other hand. Decisions by the courts which are against the position of
the Executive is seen as a way that the Judiciary demonstrates its
unwillingness to fight corruption and possibility of its complicit in
enthroning a corrupt regime and consequently derail the anti-
corruption drive of the present Nigerian government. This paper seeks
to properly contextualize the doctrine of separation of powers within
the existing Constitutional framework in Nigeria and demonstrate
from the empirical perspective the decisions of courts as based on the
cold facts presented before the courts and the inevitability of the
Judiciary to do otherwise in the light of the justice system that is
presently in place in Nigeria and that the Judiciary is only being isolated
as a scapegoat for the failure and inadequacies of the Executive to
present a better argument in its fight against corruption. Legislative
interventionist imperative will be proffered as the panacea for the

308
Wahab Egbewole is a professor of law, University of Ilorin.

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present state of affairs as well as the need for introspection on the part
of the Executive in re-engineering its avowed anti-corruption war
instead of scapegoating the Judiciary which can only determine cases
presented before it even if it is aware of facts contrary to the ones
presented.

Keywords: Separation of Power and Constitutional Framework

1.0 I NT RO D U C T I O N
In most democratic systems the world over, the governance arrangement is generally
shared into a tripod of Legislature, Executive and the Judiciary on the basis of the
doctrine of separation of powers. The three arms of government as usually addressed
are assigned specific powers in a way that power is not concentrated because as
argued, power corrupts absolute power corrupts absolutely.309 The legislative arm is
given the role of law making, the executive is expected to implement the laws and
the judicial arm is to interpret the laws. There cannot be a watertight separation
because it is a human community where relationships are expected to occur and to
that extent there are overlaps in terms of power relations and for an arm of
government to be a check on another. The power relations is such that the arm that
controls the purse especially in Nigeria is regarded as the main arm of government
while the other arms are treated with impunity and reckless abandon. The judiciary
is generally thus regarded as the most junior and relatively an insignificant arm.
It must be emphasised from the onset that this classification is a perception issue as
all arms of government are constitutionally created and are equal partners in terms
of constitutional power matrix.310 The judiciary however is in a more difficult
position in the power equation in the sense that it relies practically on the executive
to function in terms of finances and indeed in terms of infrastructure.311 This position
is informed by the fact that the ultimate decider of the fate of the hopeful and the

* This paper was presented at the African Bar Association Conference held in Portharcourt in
August, 2020 but revised for this publication
309
Tobi N., “Law, Judiciary and Democracy”, Ayua L. A., (ed.), Law Justice and the Nigerian Society,
(NAILS, Lagos, 1995), pp 122-139 where his lordship argued for the need for balancing in the
sharing of governmental powers.
310
See Egbewole, W. “Judicial Independence, its Origins and its Operational Dynamics” in Wahab
Egbewole (ed.) Judicial Independence in Africa (London: 2018 Wildy, Simmonds & Hill) p.3 where
the judiciary was described as the junior partner
311
It took the intervention of the President to issue Executive Order 10 of 2020 to call attention of
State governments to financial independence of the judiciary. See https://ao2law.com/judicial-
independence and https://allafrica.com/202006010324 accessed 26th June, 2020

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hopeless is the judiciary.312 This paper is to interrogate the power relations of the
three arms of government, identify the position of the Judiciary and call attention to
the current trend in Nigeria where the judiciary is made to take the blame for every
perceivable wrong in the system. In fact, the Judiciary is seen as the bane of the
Nigerian state because of the corruption perception and the slow pace of the
administration of justice in Nigeria. This perception even if wrong it can however
be seen as wrongly created by the judiciary itself in its challenge of integrity, lack
of transparency and palpable corruption of some of the judicial officers.313
2.0 C ON CE P T U A L I S A T I O N O F S E PA RAT I O N O F P OW E RS
The idea of separation of powers was developed in relation to the growth of liberal
democracies and the emergence of self-government across nations. It was argued
that there is need for a more expansive devolution of powers instead of
concentration. James Harrington who, in working out a constitution for Great
Britain, prescribed rotation in office, free choice of electors and a separation of
powers the three arms of government as they are known today as the basis “an equal
commonwealth” and that the government at all times must respect the will of the
people.314 Indeed John Locke315 classification of governmental powers into these
three compartments316 was central to the liberal democratic creed and boosted the
idea, even when doubts still existed in some quarters.317 This idea as we have it today
is however popularised by Montesquieu.318
According to Montesquieu,
Political liberty is to be found only when there is no abuse of power. But
constant experience shows us that every man invested with power is liable
to abuse it, and to carry his authority as far as it will go….To prevent this
abuse, it is

312
Egbewole, W. “Judex: Hope for the Hopeful and the Hopeless” 139 th Inaugural Lecture
delivered at the University of Ilorin on 28th November, 2013.
313
Recently, the Economic and Financial Crimes Commission arrested some judges on charges of
corruption and some of them tried and some are still standing criminal trials in various courts in
Nigeria. See https://www.dailytrust.com.ng/news/law accessed 22/7/17
314
Harrington, James. Oceana, London, 1656. S.B. Liljegren ed., Heidelberg, 1924.p. 33.See also:
George H. Sabine and Thomas L. Thorson. A History of Political Theory. 4th ed. Hinsdale, Il.: Dryden
Press, 1973p. 467
315
John Simmons describes Locke as “one of the first great liberal political philosophers”. See
Simmons’ “Introduction”, in Steven M. Cahn. (ed.) Classics of Political and Moral Philosophy. NY:
Oxford University Press, 2002. p. 457
316
Chapter XII, par. 143 of “Second Treatise of Government”, Locke: Two Treaties of Government.
ed. by Peter Laslett. Cambridge: Cambridge University Press, 1988. p. 364
317
See: Sabine, op.cit. p. 497
318
ibid. p. 515

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necessary from the nature of things that one power should be a check on
another….When the legislative and executive powers are united in the same
person or body…there can be no liberty…. Again, there is no liberty if the
judicial power is not separated from the legislature and executive….There
would be an end to everything if the same person or body, whether of the
nobles or of the people, were to exercise all these powers.319

He argued essentially for what can be regarded as a clear level of operation where
each arm of government will not in any way have anything to do with the other arm.
This is what Anise described as the “pure theory of separation of powers”320 and
means, according to Calvert, “distributing ultimate authority among different
entities, none of which is subject to control by the others within its sphere”321 all for
the ultimate sake of freedom.
The Founding Fathers of the American federation devoted a considerable
portion of their writings (Federalist Papers Nos. 47, 48 and 51) to articulation of the
doctrine, insisting that power concentration “is precisely the definition of despotic
government”,322 The doctrine has receive3d a considerable number of opposition or
criticisms from Jeremy Bentham and later by Hegel and their argument is that
watertight compartmentalisation is not practicable and generally unrealistic.323
As argued by Alabi, separation of powers is a principle against arbitrary exercise of
powers. Because power tends to corrupt and absolute power tends to corrupt
absolutely, modern constitutional theorists tend to emphasis, that powers of
government be separated among the three organs of government. In this way,
absolutist tendencies and reckless abuse of political powers could be avoided. Thus,
as a necessary corollary to the principle of separation of powers, there is the idea of
checks and balances. By checks and balances is meant that the arms of government
should check and balance their respective powers against each other. 324 Thus, the
legislature had by the seventeenth century began to acquire enormous power of
control over the executive. Royal absolutism was thereafter sought to be curbed, in
the eighteenth and the nineteenth century, by granting parliament the power to

319
Montesquieu, Baron de. L’espirit des Lois, Book XI, Chapter VI
320
Anise, Ladun. “The Theory of Separation of Powers and the 1979 Nigerian Constitution”, Ife
Social Sciences Review, Vol. 3 No. 1, March 1980. p. 15
321
Calvert, Peter. Devolution. Professional Books Ltd., 1975 p.6
322
Jefferson, Thomas. “Views on Constitutional Government”, in Peter Woll, Peter Woll. American
Government: Readings and Cases. 6th ed. Boston: Little, Brown and Co., 1978. p. 47
323
For a summary of the utilitarian critique of separation of powers, see: Sabine, p. 629-630. For
Hegel’s critique, see: Sabine, p. 601-602
324
Alabi, MOA “The Legislature and Intra-Governmental Relations in Nigeria” In Alabi, M &
Egbewole, W. (ed) Perspectives on the Legislature in Government of Nigeria (Morocco: CAFRAD
2010) p.100

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control the prerogative of the Crown. The powers of the legislature known as the
Parliament grew in leaps and bounds in Britain and almost uncontrollable.325
The powers of the judicial arm also developed in relation to the two other arms
of government. In developed democracies the judiciary especially in the United
States of America as well as Nigeria where political power arrangement was
fashioned in the same manner. The emphasis is on constitutional supremacy as
against Parliamentary supremacy. This arrangement gives the Judiciary a prime of
place in power balancing.
The principle of separation of powers is not intended to promote the goal of
efficiency in government. Although the Founding Fathers of the American
Federation identified the need for an efficient government as the basis for separating
the executive from the “fragmented and episodic” Congress,326 the prevention of
tyranny was the most prominently articulated rationale for separation of powers.327
As Nwabueze posits that the doctrine of separation of powers curbs arbitrariness and
autocratic inclinations328 and the tendency towards arbitrariness and despotism is
reduced where the executive does not fully control the legislative process. The two
goals of efficiency and devolution of powers to prevent abuse and arbitrary use are
seemingly conflicting and scholars are lined in the two positions. On constant basis,
attempts are being made at the intellectual level to ensure reduction of the diverse
positions.329
Thus, even theoretically speaking, the principle of separation of powers does
not import a water-tight compartmentalisation of governmental powers. The idea
that one branch of government should be a check on the other necessarily obviates
complete separation of powers. Thus, the question remains whether the theory of
separation of powers is really in tune with practical realities. The idea of a tripartite
arrangement of governmental powers and functions has been particularly attacked
by some scholars who put forward new schemes of classification of government
powers and functions. The contention has largely been between those who favour

325
Roskin, Michael G. Countries and Concepts: Politics, Geography, Culture. Upper Saddle River,
NJ: Prentice-Hall, 2001.p. 28
326
Madison, James “Federalist 47”, in Peter Woll, op. cit. p. 39-40.
327
Egbewole, W. Jurisprudence of Election Petitions by the Nigerian Court of Appeal (Germany:
LAP Lambert academic Publishing, 2011) pp10-16
328
Nwabueze, Ben O. “A Constitutional Democracy and a Democratic Constitution”, in Yemi
Osinbajo and Awa Kalu (eds.) Democracy and the Law. Papers Presented at the Second
Conference of the Body of Attorney General in the Federation, Held in Abuja, 9 th-12th September,
1991. Lagos: Federal Ministry of Justice, 1991. p.73
329
David P. Currie. “The Distribution of Powers after Bowsher”, (1986) Supreme Court Review, 19
– 36. cf. Peter L. “The Place of Agencies in Government: Separation of Powers and the Fourth
Branch”, (1984) 84 Colum. Law Review

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separation of powers and others who believe that the reality of governance supports
fusion (or concentration), rather than separation, of governmental powers.330 From
the latter perspective, it is argued that complete separation of powers is impossible.
Even within its own sphere of authority and competence, no one arm of government
can exercise absolute powers. To ensure harmonious workings of government,
powers are shared and overlap of a sort is allowed. As will be argued anon, judicial
powers accommodates a level of law making, executive powers provides for
delegated legislation by way of law making. A form of adjudication is performed by
the executive in the discharge of executive functions. In Nigeria, the decision in the
case of AMAECHI V. INDEPENDENT NATIONAL ELECTORAL
COMMISSION331 led to the need to amend S.141 of the Electoral Act, 2010 which
now provides for the need for anyone to be declared as Governor to have participated
in all the processes of the election.332
This overlap is more glaring in parliamentary regimes where Ministers which
belong to the executive branch are appointed from the legislative arm. In a
presidential system of government the theoretical application of the doctrine appears
more feasible. All said, the doctrine has been a veritable source of counterforce in
power dynamics such that an arm of government cannot lord it over another arm.
The operation of the doctrine in Nigeria is however more complex in the sense that
contest and contestations for power continues to be a recurring decimal between the
various arms especially between the executive and legislature.333 One area where
this disagreement is more pronounced in Nigeria recently is on budgeting.334 The
two arms always also disagree on the confirmation of the nominees of the President

330
S.N. Ray, Modern Comparative Politics: Approaches, Methods and Issues. New Delhi: Prentice-
Hall of India, 2003. p. 144 – 149 where attempt was provided to reconcile the views as
represented by differing scholars
331
2008 5 NWLR (PT.1080) 227
332
See however the decisions of the Supreme Court in CPC V. OMBAGADU (2013) ALL FWLR
(PT.706) 406 AT 444-445
333
Okebukola, E.O. “Executive Orders in Nigeria as valid Legislative Instrument” available at
https://www.ajol.info/index.php/naujilj/article/viewFile/136320/125810 accessed on 21/7/2017.
see also sundiatpost.com/2017/.../executive-legislature-face-off-okogie-slams-nigerian-leaders
accessed 21/7/2017
334
There is still an unresolved disagreement between the Minister of Power, Works and Housing,
Raji Fashola SAN and the National assembly on the budget allocation to the Ministry. See
www.premiumtimesng.com/.../234881-fashola-slams-national-assembly-for-lagos-ibadan
accessed on 21/7/17

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for executive offices as we witnessed on the nomination of Ibrahim Magu as the

Chairman of Economic and Financial Crimes Commission.335
Except for the ridiculous extent of the disagreement in terms of political
manipulations and issues that does not advance democracy and development,
disagreement between the two arms portend a form of stabilising factor to the polity.
In the same vein, the power arithmetic in Nigeria appears more to be donated by the
control of the revenue of the Federation without recourse to the constitutional power
devolution strategy. It appears the equation is generally designed to favour the arm
that has control of the purse.336 The need for harmonious working relationship
cannot be over emphasised as no arm of government can effectively discharge the
duties associated with governance and the Constitution of Nigeria clearly recognises
this by creating the three power centres. What then is the place of Judiciary in this
power equation in Nigeria?
3.0 J UD E X I N T HE N I GE R I A N G OV E R NA NC E M AT RI X
The judiciary is the basis upon which democracy grows and on which rule of law
and development is founded. This is the only organ of government that is created to
deal with the administration and dispensation of justice in any democratic nation
particularly respect for rule of law in governance and protection of fundamental
rights of citizens.337 In recognizing the role of the judiciary the Malawian
Constitution provides:
The judiciary shall have the responsibility of interpreting, protecting and
enforcing this Constitution and all laws and in accordance with this
Constitution in an independent and impartial manner with regard only to
legally relevant facts and the prescriptions of law.”338

As the bastion of hope for the hopeful and the hopeless, the judiciary has a creative
function as they are not expected to just act mechanically in following the rules

335
In fact, the Presidency has approached the Supreme Court on whether there is need for
confirmation of such position in the light of Section 171 of the 1999 Constitution. See
www.vanguard.com accessed on 21/7/2017
336
By Section 80 of the 1999 Constitution, 1999 (as altered) the Executive arm of government is
given power to control the fund of the Federation notwithstanding the fact that the spending can
only be done by presenting budget estimates to the legislature which will then pass the
Appropriation Bill into law as provided in Section 81 of the Constitution, 1999. The disagreement
today is whether or not the National Assembly can add to, subtract or do anything to the
allocation of funds in the estimate submitted by the Executive.
337
Egbewole, W.O., “Nigeria Judiciary, Globalisation and the Development of Democracy”, Taiwo
Kupolati, (ed.) Current Issues in Nigerian Jurisprudence, (Renaissance Law Publishers, Ltd, 2007), p.
278
338
Section 9 Malawi Constitution 2002

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prescribed by the Congress but must do this by relating them with human
consciousness and reconstruction of human relationship.339

To achieve development in human society, it has been argued that those who are
vested with the power to dispense justice must be guided by the principle of fairness,
equity, morality and justice. The major phenomenon in all human societies’ is
conflict. The judiciary settles disputes and interprets laws that are made by the
legislative branch or those that are made on the authority of the legislature.340 This
role is becoming more expansive as it is now being used to accommodate a form of
law making. As we argued elsewhere, this role fits the judiciary well because they
are not expected to be robots in the discharge of their judicial duties.341 This position
was criticized by Aguda,342 Aderemi,343 and Thomas344 but one has no reason to
change the position in the light of recent developments around the world. It must be
emphasised that when decisions are taken and new legal frontiers are espoused in
judgments especially by the Supreme Court, the legislature are usually left with no
choice but to amend the laws in line with such decisions.345
Appointment into the Judiciary is constitutionally guaranteed346 with respect to the
superior courts and the crucial role of the National Judicial Council (NJC) under the
leadership of the Chief Justice of Nigeria.347 The judiciary plays fundamental role
in the governance of Nigeria and this has been so acknowledged by scholars.
Oyebode posited that:
It is almost axiomatic that the judiciary plays a pre-eminent role in any
democratic dispensation. Indeed a political system can be considered as
democratic on the basis of the extent to which the judicial arm is permitted
to hold the scales of justice over and above the other arms of government.

339
Bhagwati, P.N. “The Judiciary and Constitutionalism in a Democratic Society” The Judiciary in a
Globalised World CJIL Year Book January 1999
340
Emmanuel O. O., “The Military and Democratic Transition in Nigeria: An Indebt Analysis of
General Babangida Transition Programme” (1985-1993), (2000) 28(1) JPMS, pp. 1-20
341
Egbewole, W. ‘Judex: Hope for the Hopeful and the Hopeless” 139 th Inaugural Lecture,
University of Ilorin delivered on 28th November, 2017 p.6
342
Aguda, T.A. The Judiciary in the Government of Nigeria (New Horn Press Ltd, Ibadan:1983) pp16
and 61
343
Obi V. INEC (2009) 18 NWLR (Pt.1172) 215
344
Thomas C. Speech to Eagle Forum, 9 November, 1996 and reproduced in Foskett, K. Judging
Thomas: Life and Times of Clarence Thomas Harper Collins Publishers, New York:2004 p.279
345
Amaechi V. INEC (2007) 18 NWLR (Pt.1065) 79, 91, 170 and 504 which was the basis for the
provision of Section 89(7) of the Electoral Act, 2010 (as amended)
346
See generally Chapter VII of the 1999 Constitution
347
Section 153 (1) and Part I Third Schedule of the Constitution 1999 clearly provides for the
membership of the NJC

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The source of authority of the judiciary for exercising this critical function
is, of course, the Constitution which in fact, captures, in a rather poignant
fashion, the interplay of the judiciary, constitutionalism and democracy. For,
if good governance has become a modern day desideratum, human ingenuity
is yet to devise a better means of preventing arbitrariness and ensuring social
well-being than that of separation of powers, due process of law and
independence of the judiciary which, taken together, constitute the hall-
marks of a well-functioning democratic setting.”348
It must be emphasised that in the trajectory of the Nigerian State and in all its
developmental stages during colonial, military and democratic dispensation, the
judiciary has demonstrated its unique qualities of forthrightness, consistency and
reliability.349 Under the colonial regime, the Nigerian judiciary determined the case
of ESHUGBAYI ELEKO V. GOVERNMENT OF NIGERIA350 and extreme
courage was demonstrated and displayed as a fearless institution. Under military
regime, the institution also decided the celebrated case of LAKANMI V. A.G.
(WEST)351 and it was established that the judiciary does not fear the gun but will
decide cases as it sees it. The position of the Nigerian judiciary and its role as an
arm of government was underscored by Honourable Justice Thompson in OYEBISI
V. C.O.P. WESTERN STATE when his lordship held:
Its the duty of the judiciary as an organ or agent of the state to act
as the pillar of equilibrium between the traditional tyrannies of the
legislature and the traditional excesses of the executive; but where
as in this the legislature and the executive become united in the
same body of person the task of the judiciary as the defender of the
rights of the citizen becomes more important and requires of the
courts not only the ability to read, understand and interpret
legislations but also the courage and sincerity to tell the executive
where to stop.352

In the Second Republic the judiciary continued this stride of courage in the
determination of the case of AWOLOWO V. SHAGARI. 353 This judgment was
widely criticized but the judiciary interpreted the law the way it saw it and in spite
348
Paper presented at the National Conference on Changes to Democracy in the New Era, held
under the auspices of the Institute of Human Rights and Humanitarian Law, Port-Harcourt, August
27-28, 1999.
349
Egbewole, W. Jurisprudence of Election Petitions by the Nigerian Court of Appeal (Germany:
LAP Lambert Academic Publishing 2011) pp. 38-78
350
(1931) AC 670; (1931) ALL ER (REPRINT) 44
351
(1971) U.I.L.R. 201. See also ADEGBENRO V. AKINTOLA (1962) ALL NLR (PTII) 462
352
Unreported Case No. M/34/74 delivered on 25 November, 1974
353
(1979) 6-9 (REPRINT)SC 37

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of the seemingly unpopular position especially with the media, it stood its
ground.354

The advent of the amputated Third Republic and the emergence of Fourth Republic
in Nigeria depicted an entirely different picture of the judiciary as it is today in
Nigeria. It is now regarded as an institution that is perceived as corrupt, unreliable
and generally lazy. It must be stressed that these characterizations are a function of
a number of factors. The situation was likened to the race between flies and the
cobweb355 Olatoke opined that:
The great flies herein are the ones who circumvent the law and
manipulate the judicial system to escape Justice. It is more pathetic
when the judiciary described as the last hope of the common man
in the protection of the rights of the common man assume
unfamiliar role of deriding same in the discharge of its duties in the
name of all that is injudicial and injudicious.We are in an age where
the members of the Judiciary do not act rightly; committing acts
despicable of their oaths of office. What excuse would a judge who
is found with huge sums of money above his income in 10 years,
have?”356

It is our view that in spite of the fact that this perception may not be a total reflection
of the judiciary, it must be emphasized that the characterization is pervasive and the
judiciary is not helping matters. As at today a number of judicial officers are
standing trial for corruption charges before various courts in Nigeria.357 The
challenge faced by the Judiciary in Nigeria today is essentially a development over
a period of time. The first major factor responsible in our view is the skewed
appointment process as against the hirtherto position of seeking out people who
possesses the qualities of a good judge, such will people will be approached and
attracted to the bench. The situation today is that of who you know and not what
you know. As we argued elsewhere358 “It is imperative to emphasise that the
legitimacy of the judicial function rests on judgments and decisions rendered thus,
ensuring integrity requires appointing persons who are of right professional
354
See also the decision of the Supreme Court in AG BENDEL V. AG FEDERATION (1983) 3 NCLR 1
355
Francis Bacon, Baron Verulam of Verulam and Viscount of St Albans, 1561-1626, in the
Apothegms, Book of Quotations, Geddes & Grosset, 2009 cited in Olatoke, K. “Judicial Sector
Reforms in Nigeria: Constraints and Prospects” delivered at the National Conference on Law and
Socio-Economic Change in Nigeria: Issues, Contexts and Perspectives held at the Faculty of Law,
Obafemi Awolowo University, Ile-Ife 18-21 July, 2017
356
Olatoke, K. ibid at p.5
357
See www.pulse.ng/local/judges-arrest-inside-the-very-corrupt-world-of-Nigeria’s –Judiciary
accessed 22/7/17 ; https://politics.naij.com/402850 accessed 22/7/17
358
Egbewole, W. “Judicial Integrity and Administration of Justice in Nigeria” in file with the author.

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character and competence as judges.” Judicial integrity thus requires persons of

integrity, who will do all they reasonably can to achieve wholeness of principles
drawn from their role and judicial actions consistent with those principles.359
Constitutionally, any legal practitioner who has been so qualified for at least ten
years360 are appointed to the superior courts. It has been discovered that lawyers
working in banks, oil and gas industry, communication sector or such other
institutions are appointed on the attainment of the magical ten years. Whilst it is not
our argument that anybody working outside of private legal practice or in the
Ministry of justice or in the judiciary are the only ones entitled to be appointed, it is
important that requisite experience may be an imperative to the discharge of the
onerous duties of a Judge. The appointing authority which is the National Judicial
Council361 also needs to be overhauled in terms of how they get to the Council. It is
our view that the body be restructured by way of downsizing the body as a policy
making organ and the powers of the Chief Justice of Nigeria in constituting the
membership of the Council need to be revisited.362
Equally important is the training that the Judges undergo. As at today, the training
given to the Judges are essentially on how to become a legal practitioner as no part
of the curriculum is devoted to any form of preparation on the art of judging. It may
be argued that the nature of training for judicial officers has not changed from what
it was when the Judiciary was performing very well but it must be understood that
the people appointed then are specially identified and not as presently approached
by way of lobby and family ties. In order to improve the service delivery of the
Judiciary in Nigeria, it may be apposite to introduce technology to the operations of
the bench. The present situation in which determination of cases are delayed unduly
is not in the interest of the democratic advancement of Nigeria and the ultimate
losers are the Nigerian citizens. A scenario was painted on the delay in determination
of cases by Adegboruwa that:
I just got a judgment in the Supreme Court on Friday, 23rd of June;
the case started in the high court in 1984, that’s 33 years ago; by the
time the judgment was delivered it was 33 years, all the litigants
had died. Fred Agbaje did everything possible to have the appeal
heard before he died, but we were told every time we filed an
application for accelerated hearing that they were only treating 2003
appeals. And do (sic), it got to our turn this time because they were

359
Jonathan S., “Is Judicial Integrity a Norm? An inquiry into the concept of judicial integrity in
England and the Netherlands”, (2007) 3 Utrecht Law Review
360
See Sections 250, 256, 261 and 266 of the 1999 Constitution of Nigeria (as altered)
361
Section 153 of the 1999 Constitution creates the National Judicial Council
362
Egbewole, W. “Hope for the Hopeful and the Hopeless op cit. p.56

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now treating 2006 appeals. So, by next year, they will be treating
2007.”363
There has been various tales told by different people on the effect of delays in cases.
In an earlier study, this is the conclusion that was reached that “the result of our
study as shown in Table 1 and Figures 1-7 above, there is a palpable concern for
delay in determination of cases by our courts.”364 This matter of delay has acquired
a lot of scholarly attention365 but it appears there is no end in sight as a number of
cases were examined by Udombana366 apart from the statistics provided in the table
and figures earlier referred to and it is obvious the Judiciary must take concerted
steps to address this albatross. The challenge is further elucidated upon by the
Nigerian Institute of Advanced Legal Studies in the research carried out in the
various states of the Federation which depicts a very gloomy picture and calls for
urgent attention.367
4.0 S CA PE G O A T I N G T HE J U D I CI AR Y I N N I GE RI A
The major challenge faced by the Judiciary in Nigeria today is that of corruption and
this is put at the doorstep of this institution especially on the issue of delay in
administration of criminal justice especially as it affects the politically exposed
persons, double standard in terms of decisions taken, inconsistency and uncertainty
in terms of judicial precedents, issues of socio-economic rights and incompetence to
mention a few, The Nigerian citizens usually heap the blame of the discharge and
acquittal of accused persons on the judiciary especially where the said accused is a
political office holder or a former political office holder. Reference is made to the
acquittal of the Senate President, Dr. Bukola Saraki by the Code of Conduct Tribunal
which the Presidency appealed against.368 Mention is also made of the trial and
acquittal of the former Governor of Delta State, James Ibori who was then jailed 13

363
The Punch Newspaper, Thursday July 6, 2017 page 37
364
Egbewole, W. “ Judex: Hope for the Hopeful and the Hopeless” op cit. pp.30-31
365
Abdullahi, S. I & Abdulqadri, I.A. “Curbing Delaying Justice on the Ground of Jurisdiction in the
Nigerian Courts: Lessons from the Islamic Law” in Abdulqadri, I.A. & Abdullahi, S. I. (eds) Nigerian
Judiciary: Contemporary Issues in Administration p.124; Peters, D. “Minimizing Delay in the
Administration of Civil Justice in Nigeria” in Yusuf, F.A.O. (ed) Issues in Justice Administration in
Nigeria-Essays in Honour of Ho. Justice S.M.A. Belgore (VDG International Limited, Lagos:2008)
p.p.449-461; Chijioke, J. “The Role of the Judiciary in the Crusade against Corrupt and Unethical
Practices in the Public Service in Yusuf F.A.O. ibid p.324
366
Udombana, N.J. “Speedy Administration of Justice in Nigeria: Which Way Forward?” in
Abdulqadri, I.A. & Abdullahi, S.I. (eds) Nigerian Judiciary: Contemporary Issues in Administration of
Justice pp.79-107
367
Nigerian’s Judicial Performance Evaluation 2008-2011 in www.nials-nigeria.org/text/estore.aspx
assessed 26th October, 2013
368
See www.premiumtimesng.com/topnews accessed on 22/7/17

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years by a court in United Kingdom.369 Reference is also made to the acquittal of

Honourable Justice Ademola accused of corruptly enriching himself on cases
assigned to him. His lordship was charged with his wife and a Senior Advocate of
Nigeria but were all discharged and acquitted.370
The conviction or acquittal of any accused person is not determined by the court as
there are critical stakeholders or key players in the criminal justice sector. The
prosecution of any case is a function of the prosecution, the defence and the court.
It is therefore our submission that where the prosecution failed to discharge its
obligations appropriately either by not filing a proper charge, not calling appropriate
credible witness, or where the accused is able to dislodge the case against him or
her, the court will be left with no option than to discharge an accused person. What
we have come to realise is that in most occasions, the prosecution are found wanting
but because the resultant effect of the incompetence or haphazard prosecution is
pronounced by the court, it is the court that is scapegoated. It is indeed a function of
negative profiling. This position is not to exonerate the judiciary from any blame but
it is indeed the theory of a white sheet with a black dot in the middle. What is
generally seen is the black dot in spite of the dominance of the white sheet.
Our position was espoused recently that:
“It must thus be emphasized that before cases are filed in court,
proper and due investigation must be conducted. It must be
appreciated that no crime is committed without traces. All that the
prosecution needs to do is to identify those traces and ensure that a
near perfect case is presented. We must not be understood to be
arguing that investigations are not done. Far from it, our position is
that instead of rushing to court with haphazard investigated cases,
they need to be more thorough, to be more painstaking and to be
more organized in the presentation of cases. The more we avoid
media at the point of investigation the better. In other jurisdictions,
investigations may be on for three or five years and nobody will
know of it until the prosecution is ready to move against the
defendant.371 It is not that cases will not be lost, it is not that
defendants will not be acquitted but all the stakeholders will be fully
satisfied that the best has been done in the circumstances of each

369
See www.premiumtimesng.com/news/468 accessed 22/7/17
370
See https://www.dailytrust.com.ng/news/law accessed 22/7/17. His lordship was set free on
5th April, 2017.
371
It took UK security agents a reasonable length of time to garner evidence against James Ibori
money laundering case, and eventually he was convicted.

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case. The present disposition of EFCC of quickly rushing to the

media at every point of the case leaves so much to be desired.”372
Cases are generally lost not because the courts are corrupt but because the
prosecution is usually take improperly investigated to courts and engage more in
media trials instead of a thorough investigation of the cases before proceeding to
court. It must be stressed that what happens in advanced democracies is that a
considerable time, energy and resources are devoted to the preventive and
investigative aspect of crime such that by the time cases are presented in court, it
will be obvious to the accused person. A case in point was that of James Ibori373 and
Mrs Allison-Madueke.374 While the Nigerian cases and the culprits were already
convicted by the Nigerian media and the agencies responsible for prosecution, the
United Kingdom and United States of American counterpart said nothing and took
their time to conduct a thorough investigation which now led to a case that will be
difficult for the accused persons to surmount. The lessons in our view is that there
is need for a concerted effort on the part of investigative agencies and the
prosecution to be more pragmatic and realistic in respect of their preparations before
cases are rushed to court and then end up making the court the scapegoat of their
negligence, recklessness and total lack of preparation.
It may also be argued by the two critical stakeholders that they do not have the
required capacity, resources and infrastructure that are available to the agencies in
advanced democracies. This may well be so but the fact is that how judiciously have
they utilized the available resources? There is also the challenge of corruption on
the part of these two critical key actors in the administration of criminal justice
architecture. Allegations are rife that the officials in charge of investigation and
prosecution are also complicit in ensuring that the prosecution and investigative
officials are compromised on some occasions. This allegation is at the doorstep of
the executive and if the judiciary is seen as the problem, how will the executive be
free of blame?
There is also another arm of the government that is equally culpable. The laws being
interpreted by the judiciary are made by the Legislature and there is therefore the

372
See generally, Egbewole, W. “Administration of Criminal Justice in Nigeria: What is Right and
What is Wrong” delivered at the 55th Anniversary National Conference of the Faculty of Law,
Obafemi Awolowo University, Ile-Ife 18-21 July, 2017.
373
The Nigerian court already discharged James Ibori for more than six months before the court in
United Kingdom launched its own case virtually “cast in iron” and Ibori ended up with a 13 year
jail term
374
The former Petroleum Minister, Mrs Diezani Allison-Madueke left office in May, 2015, it was
not until July, 2017 that the Houston, Texas District Court was approached for the first time when
it was obvious that the former Minister is already in the net. The details of her confession and
deals were reproduced in www.premiumtimesng.com/news accessed 22/7/17

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need to tinker with the laws. We have argued elsewhere that law is actually not our
problem in the administration of justice sector as we have more than enough laws to
take care of our concerns and that the challenge is purely attitudinal as it is in all
sectors in Nigeria.375 In spite this established position there is however the need to
for a fundamental surgical operation to our legal regime especially where corruption
or economic related crimes are concerned. The philosophy of presumption of
innocence as prescribed in the constitution need to be reviewed, re-assessed and re-
crafted in a way to provide exception in respect of these offences. Where it is
established that the person concerned is a civil or public servant all his adult working
life with calculable salary for the period and properties or money worth more than
the salary is traceable to him/her, it should be his/her burden to explain how such
property or money is acquired.376 There is however a great challenge in attaining
this feat and that is the crop of people that are now in the National Assembly who
are themselves alleged to be complicit in corruption related cases and economic
crimes. The bulk however stops with the citizens of Nigeria to ensure that only
credible, reliable, transparent and honest individuals are elected into offices.
So far in this paper, it is clear that our separation of powers operations is skewed in
favour of the executive in Nigeria and the Nigerian citizen rightly or wrongly
believed it is only the executive that is desirous of exterminating corruption from
the body polity and that the legislative and judicial arms are actually fueling
corruption especially under the present dispensation of President Buhari. While the
two arms have not done enough to disabuse the minds of Nigerians in demonstrating
otherwise, it must be emphasised that corruption is indeed a creation of all the arms
of government and all the arms of government are actually sustaining the corruption
challenge to Nigeria.
It is therefore imperative that all the arms of government must create a synergy with
which the cankerworm can be exterminated instead of the present blame game,
profiling of the judiciary and making the judiciary the scapegoat for all the atrocities
in Nigeria.
The judiciary has been its own enemy by allowing the political class to fetter its
independence and operational models. The recent example with regards to the
primaries of the governorship in Edo State as it affects the two main political parties
in Nigeria, Peoples Democratic Party (PDP) and All Progressives Congress (APC)
is rather sad. The courts at the Federal Capital Territory, Rivers State and Edo State
were “contesting relevance” by giving contradictory and mutually exclusive ex-

375
Egbewole, W. “Administration of Criminal Justice in Nigeria: What is Right and What is Wrong”
op. cit.
376
See Egbewole, W. ibid and Olatoke, K. op cit.

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parte orders of interim injunction on the same subject matter.377 It is clear from the
conflicting orders that the independence of the judiciary which is theoretically
guaranteed is endangered. The legal profession must as a united body rise up and
come up with practical, pragmatic and workable models to ensure that the judiciary
is truly independent in Nigeria as well as protect the judiciary from being used as
scapegoat of all the evils.
5.0 W A Y F OR W A R D
The Nigerian project is too big to fail and therefore there is need for all the arms of
government and the citizens to come together with a single voice to make the project
work. The way out of the present state of underdevelopment, extermination of
corruption and sustainability of the Nigerian State in our view are:
a. Stop the present blame game and all arms of government to work in synergy
to ensure that good governance is delivered to the Nigerian citizens;
b. The scapegoatism of the Judiciary has gone for too long especially in respect
of criminal prosecution and thus all the critical stakeholders in the justice
sector must discharge their obligations as constitutionally assigned and
blames to be shared appropriately in order to identify which segment of the
sector is not doing well;
c. In order to improve the criminal justice system in Nigeria and ensure that the
Judiciary is not presented as the scapegoat of all the woes in that sector, there
must be thorough investigation of criminal cases, the prosecution must be
more up and doing while the court must bend over backwards to ensure
speedy dispensation of justice in spite of the enormous challenges that it is
facing;
d. Corruption in the judiciary must be tackled more frontally as it is responsible
for the present wrong profiling and scapegoatism of the judiciary in the
power matrix in Nigeria;
e. Appointment of judicial officers need to be critically reviewed by going back
to the old regime of identifying capable and willing hands to be attracted to
the Judiciary. Individuals seeking judicial offices need be more scrutinized
to ensure that they possess the requisite qualities for the exalted office in
terms of comportment, competence and above all integrity. It is high time
the idea of family ties, filial relationship or political patronage is jettisoned
in appointing people to judicial office;

377
See https://www.bbc.com/pidgin https://www.vanguardngr.com
https://www.premiumtimesng.co all accessed 26th June, 2020

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f. Training and re-training modalities be put in place for the judicial officers.
While it acknowledged that the National Judicial Institute (NJI) is doing a
yeoman’s job within its mandate, there is need to fundamentally restructure
and review the present curriculum of law training in Nigeria in a way to
accommodate training for future judicial officers instead of the “crash
programme” that NJI is made to provide for the newly appointed judicial
officers. A reasonable number of newly appointed judicial officers are
having contact with the art of judging on their appointment. This need be
changed so that a re-orientation is established paving way for an entirely
brand-new orientation in the emergence of new crop of judicial officers in
Nigeria;
g. There is need for the deployment of technology in the discharge of the duties
of judicial office. In the present 21st Century it is obvious that a 19th Century
equipment is inadequate. All the courts must be equipped with modern
technology on which both the judicial officers and the supporting staff must
be properly trained to use effectively;
h. In order to ensure a renewed, re-engineered and service driven judiciary, true
independence of the judicial arm must be allowed to flourish in terms of
absolute financial autonomy, a non-teleguided appointment process,
independence of decision making and availability of such other facilities that
will make the judiciary a distinct arm of government that will give credence
to the doctrine of separation of powers instead of the present ‘fusion’ of
powers operated as separation of powers in Nigeria.
6.0 C ON CL U D I N G R E M A R K S
The relationship between the three arms of government in Nigeria is theoretically
guided by the avowed doctrine of separation of powers as espoused and popularised
by Montesquieu but in practical and operational terms it is not a game of three equals
but that of junior and senior partners with the judiciary seen as the most junior
partner. The necessary wherewithal that will make the arm truly independent and
function on the same pedestal are not made available for it.
The paper sought to deconstruct this state of affairs by calling attention to this
skewed regime of power separation and power relations as well as the need to
jettison the present negative profiling and scapegoatism of the judiciary. While it is
recognised that there are a few bad eggs in the judicial arm of government as in other
arms of government, this is not enough for the present rather hasty generalisation of
the judiciary as a corrupt institution. It is better to identify the few bad individual
judicial officers and deal with them appropriately in the same way the other arms
must be treated. The judiciary must take the bull by the horn by way of self-
introspection to identify these bad few and deal with them decisively instead of the

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present perceived kid gloves treatment of “go and sin no more” which unwittingly
create the impression and perception of a cult system that seek to protect its own.
The present regime in Nigeria of all animals are equal but some are more equal than
others must give way to operationalisation of a true separation of powers as adroitly
espoused by its proponents.

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F RE E D OM O F A S S OC I A T I ON A N D T HE R I G HT T O F RE E L Y P R O T E S T
G O V E R N M E N T P OL I C Y I N N I GE RI A R E VI S I T E D . 378
BY
Oladiran Akinsola Ayodele (LLD) &
Heme Awar (Miss)

A B S T RA CT
Freedom of Association and Peaceful Assembly are two
Fundamental Human Rights concepts engrained in the
constitutional law provision in Nigeria. They are entrenched and
guaranteed under Nigerian Law; the Constitution, various statutes
and judicial precedents. The international laws governing this right
also give us a broad perspective of the application of laws governing
and/or upholding it. These rights are civil and political rights, that is,
justiciable in the Courts, indigenous and otherwise. It is similarly
contained in the International Covenant on Economic, Social and
Cultural Rights (ICESCR) which means it is understood to be an
economic, social and cultural right by the United Nations
Community. They are essentially pervasive. The government should
protect and provide an enabling environment to ventilate these
rights, but paradoxically government through its agencies tramples
upon these rights in the name of public order and security. Various
laws in the statute books are at times employed as tools in
undermining the very things these laws seek to protect. This paper
reviews the activities of the Nigerian government in recent times in
terms of protecting citizens’ rights to freedom of association and the
right to freely protest unfavourable government policy. To do this,
the paper employs qualitative research method which is library-
based.

1.0 I NT RO D U C T I O N
Civilization only gained its clear path and consistency because there was a
centralization of what is understood as a normal life following the exercise of the
rights to life, liberty, expression and not excluding the right of association- to the
extent of people being able to make discoveries, inventions and so on through its

378
Oladiran Akinsola AYODELE, LL.D (North-West University, South Africa) LL.M, LL.B, DPA (Ife), BL,
B.Ed. (Ibadan), a lecturer in the College of Law, Osun State University, Ifetedo campus and Heme
Awar (Miss), LL.B, (Ife), BL of Diran Ayodele and Co., Opposite Habeeb Petrol Filling Station, Odi-
Olowo Road, Osogbo, Osun State.

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ordinary enjoyment. The human race could not have and cannot go further in its
development without a critical consciousness that has only grown over centuries and
decades into what are now contained in the laws. These freedom of association and
speech as they stand permeate all sectors of the Nigerian society. Its violations
and/or misuse of however, permeate stronger.

2.0 S T AT E M E N T O F T HE P R OB L E M
If humans have been programmed for the free exercise of their right whilst not
impugning others’, and have been denied, this will keep causing a loophole in the
systematic structure of societies and an understated malfunction of duties and
functions of the purpose of which the enjoyment of this freedom of association will
have led to. Though a relatively young country, the Nigerian system in respect of
the interpretation and application of laws has found it difficult to conduct a proper
usage in wide variance to the various factors that guide and undercut the freedom of
association. If it is not the oppressive forces that seem to spring up at pivotal points
in the history of Nigeria as we know it, it’s a disabuse by state actors in their
whittling and disabuse of the laws and statutes; corruption and the very cloud of
authoritarianism bearing down on the demands of democracy; the repressive
security agencies and a general dissatisfaction of the masses directly linked and
culminating into a strict and narrow application by the criminal justice system whilst
failing to meet the international standard of the rule of law.

3.0 T HE O B J E C T I V E S O F T HE S T UD Y
The objectives are quite clear from the foregoing. Understanding the needs of the
people as it relates to the functioning and non- disturbance of this right which will
lead to an effective check mate of government policies and strategies; A stop to the
use of the various statutes as tools in undermining the very things these laws seek to
protect, through a proper structure implemented in the judicial system that puts in
place a holistic mechanism especially as it pertains to the strict application of laws
if they are first made to be weighed and simmered using this mechanism; and this
will also disallow the possibility of abuse in the system of government as we have
it. Perhaps most importantly is a preparation for the wider knowledge and usage in
the society for future essence- predictably using this model for what’s to be expected
in a timely fashion. This is important if we are to move from developing nation into
a developed one and break the cycle of repetition.
4.0 S I G NI FI C A N C E O F T HE S T U D Y
As a relatively young country- products of colonialism, our fragmented past cannot
be understated nor can it be overstated. It was only natural that we face the current
political, social and economic challenges now. But it is also only natural that the
situation of things be brought to the fore; analysed, proffered on and understood. It

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is important for future reasons. It is also important for to gain an historical

perspective. It is by this we move forward.

It will always be trite the role of exercising our rights in the given way and manner
that is peculiar to us. The abuse, flagrant violations and non- use can only serve as
an impediment to the growth of our nation as we found it. The freedom of
Association is that right needed to think, reason and develop. We agree so we can
disagree and vice-versa. To try to break the natural order of things is not just, save
for lack of productivity, it also makes for an anarchical world.

5.0 B RI E F H I S T O R Y O F T HE F U ND AM E NT AL H UM AN R I G HT S S YS T E M
Humans were formed with the similitude of rights entrenched deeply in their bio-
systems. As a matter of fact, human survival has always depended on this. In biblical
creation story, God gave “man” dominion over the earth and all therein; this can be
understood to mean the power God would have normally exercised as “His” right of
ownership being delegated to the first “man” and his descendants in its entirety.379
The term “right” can therefore be defined to mean an entitlement to a given thing.380
It is such an innate part of man that, its purpose can clearly be understood in relation
to other human concepts as in walking, talking, eating or even breathing. The
Freedom of Association is one of the rights that biblical Adam enjoyed; first with
all the animals and later with the creation of his family.381 It is one of the Natural
Rights of man and the reasons for the existence of these rights cannot be totally
divorced from the existence of human beings themselves. James Wilson, a
Philosopher posited on the subject of Natural Rights that:

Nature has endowed man with intellectual and with active powers:
she has furnished him with a natural impulse to exercise his powers
for his own happiness and the happiness of those for whom he
entertains such tender affections. If all these be true, the undeniable
consequence is that he has a right to exert those powers for the
accomplishment of those purposes in such a manner and upon such
object as his inclination and judgment shall direct; provided he does
no injury to others and provided some public interests do not demand
his labours. This right is natural liberty.382

1 The Holy Bible, Genesis 1:28.

380
PC Myers, From Natural Rights to Human Rights—And Beyond {SPECIAL REPORT, No. 197 }
December 20, 2017) <http://report.heritage.org/sr197> accessed November 26, 2019.No. 197 |
December 20, 2017
381
The Holy Bible, Genesis 1:26, 2:21.
382
James Wilson, ‘Lectures on Law,’ in Collected Works of James Wilson, {Indianapolis: Liberty Fund
2007 Vol. 2} 1055–1056.<https://oll. libertyfund.org/titles/2074> accessed November 26, 2019.

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History has shown periods of acceptance to and for these natural rights. There have
however, also been periods where forms of injury and/or suppression of the weaker
population and smaller communities as are seen in the age old culture of slavery,
racial discrimination and more succinctly a suppression of women and minorities’
rights; these have caused a dearth in the evolution of the world and hindered as it
were, the growth of contemporary communities and caused destruction of entire
groups and ancient civilizations.383
Some rights have been recognized and upheld to be Fundamental as far back as
539BC in ancient Persia where Cyrus the great conquered Babylon. He thereafter
freed slaves, declared that all people had the rights to choose their religion and
established racial equality. This is known as the Cyrus Cylinder.384 Natural rights
have however had to pass stages and processes; theorized, argued on by philosophers
and political scientists before these would finally come to a place where they were
recognized as basic human rights. It is really only of recent technologies, that there
has been a wide exposition and continual widespread recognition of Rights in
nations across the world.
For a very long time from the middle ages and thereafter, the principles of Human
Rights were seen as States’ business up and until the end of World War II with the
establishment of United Nations in 1945 and the adoption of the United Nations
Declaration of Human Rights by the General Assembly in 1948 which was ratified
by the member states therein.385 It was at this point that there began by the
International Community a full globalizing concept and development of the
entrenchment of Fundamental Human Rights in its member states.
As a Colonial state, Nigeria inherited its system of Government from the British
powers, and the reason, according to some analysts behind Nigeria’s checkered
political history is that it inherited a broken society from the British at the time of its
independence.386 The British rule was established in Nigeria in 1861 with the

383
Anneberg Foundation, Why Do Civilizations Fall (2016) < https://www.learner.org //exhibits
collapse/> accessed November 26, 2019.
384
United for Human Rights. A brief history of human rights-The Cyrus Cylinder (539 BC)(2019)
<https://www.humanrights.com/what-are-human-rights/brief history> accessed November 26,
2019.
385
H Hannum, ‘The Status of the Universal Declaration of Human Rights in National and
International Law’, 25 Georgia Journal of International and Comparative Law, 25 (1 and 2) (1995–
6), 287–396.
386
Sunny Nwachukwu, et al ‘An Account of Human Right Violations in Nigeria (Pre-British, British
and Post Independence)’ European Scientific Journal September 2014 /SPECIAL/ edition Vol.2
ISSN: 1857 – 7881 (Print) e - ISSN 1857- 7431, 231-233.

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proclamation of Lagos as a British colony.387 The British, however, desired to

expand their political and commercial influence in the region. Due to the religious,
ethnic and regional divisions created by the British, Nigeria emerged “a state without
a nation” after independence. The Constitution also adopted a federal structure with
the intent to

provide representation to each region but very soon split emerged between the
regional parties.388 The inevitable outcome was power struggle. State-sponsored
violence targeted mainly against opposite factions became widespread resulting in
the violation of the Constitution and hence the violation of people’s rights.

As at the beginning of Nigeria’s independence, the fundamental Human Rights have

always been entrenched in the Constitution; the grundnorm of our state vis a viz, the
1960, 1963, 1979 and lastly the current 1999 Constitution operating as the supreme
law of Nigeria. It started with the divergent areas of the West African metropolis
being amalgamated and resulting in different cultures being formed into a diverse
and complicated country; and then there was blatant and flagrant violation of human
rights during the colonial era and thereafter. Perhaps though, as a result of the
instability of the democratic system of government; the takeover from the colonial
masters not being proper enough of a foundation as to make for good nation building
exemplars and the subsequent forceful takeover by Military regimes at various
points in the history of Nigeria, there is an obvious disconnect in what the law states
and what is practiced by all relevant agencies of the state.

To critically analyse the Military Regimes as systems which might have provided
an environment needed for the Fundamental Human Rights to thrive and grow would
be an unfair and untruthful exercise. To be fair, the whole of the African Continent
as a whole has not exactly succeeded in keeping the mandate of the rule of law since
it is trite that Human Rights are the bedrock of democracy especially of modern
society.389 In October 21, 1986, the African Charter on Human and Peoples Rights
entered into force by a simple majority of members of Organization of African
Unity. It is very key to note that at this period in time, Human Rights violations were
so rife in a lot of member states of the Charter. The African Commission along with
the court were established later to try and checkmate some of these abuses. As it was
however later seen by South African Apartheid till the 90’s, Rwandan Genocide in

387
The Commonwealth, Nigeria: History (commonwealth secretariat 2019)
<https://thecommonwealth.org/our- member-countries/nigeria/history> accessed November
28, 2019.
388
T Falola and MM Heaton, A History of Nigeria (Cambridge University Press, 2008), 159.
389
Robert Mcnara, ‘What is democracy’ Abraham Lincoln’s Gettysburg Address (2017),
www.thought.com.abrahamlincoln’s > accessed November 26, 2019.

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the mid 90’s and so on, these abuses went on for a very long time. It thus bothered
on hypothetical mockery that some of the governments of these violators were the
same that came together to form agencies based on the African Charter.390
Notwithstanding the hypocritical stance probably stemmed by pressures from the
global scene, the development and progress of the African Union formerly the
Organisation of African Unity has been felt in its standing with its International

peers and continents all over the world.391 Aside from the African Charter, various
international instruments and indigenous laws guide the governance and/or binding
nature of the Fundamental Human Rights in every sector of society. These issues
are hereunder discussed.

6.0 I NT E R N A T I O N A L A N D I N D I GE N OU S L A WS G O VE R NI NG T HE R I G HT
O F F RE E D OM O F A S S OC I A T I O N
Over the centuries, the functions of the delineable rights of man continue to be seen
in the progress of a known society. To associate with someone or people means to
relate with them, to have a family, to work in an organisation and or with people, to
take public transportation and interact with the people therein; there is virtually
nothing one can do in this societal framework that the concept of association is not
inherent as it is commonly said that no man is an island.392 The Freedom of
Association as a Fundamental Human Right is that right needed to think, to reason,
to develop and to do a host of whole other things without suppression for society to
truly function as society and also without which all its broad parts can hardly be
made into a complete working and understandable sentence or concept.

In its first thematic report to the Human Rights Council, the UN Special Rapporteur
on the rights of peaceful association clarified that “an association refers to any
groups of individuals or any legal entities brought together in order to collectively
act, express, promote, pursue or defend a group of common interest.” 393 These
associations according to the UN include but are not limited Organisations, Clubs,

390
Makau wa Mutua, ‘The African Human Rights System in a Comparative Perspective’ (1993) 3 Rev.
Afr. Comm. Hum. & Peoples' Rts. 5, 7.
391
The African Charter on Human and Peoples’ Rights (African Charter or ACHPR) 1981, OAU Doc.
CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982). The Organization of African Unity was replaced by the
African Union (AU) in 2001. See Article 28 of the Constitutive Act of the African Union, which
came into force on May 26, 2001.
392
Oxford Essential Quotations John Donne(1572-1631)Devotions upon Emergent Occasions(1624)
Meditation XII (4.ed)… (Oxford University Press, 1923).
393
UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May
2012, para. 51.

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Co-operatives, NGO’s, Religious Associations, Political Parties, Trade Unions,

foundations and online association.394

Article 20 of the Universal Declaration on Human Rights provides for the Freedom
of Peaceful Assembly and Association, Articles 21 and 22 of International Covenant
on Civil and Political Rights, Article 8 of International Covenant on Economic,
Social and Cultural Rights, International Labour Organisation (ILO) Convention
No. 87 on Freedom of Association and Protection of the Right to organize, Articles
10 & 11 of the African Charter on Human and People’s Rights, Article 5 of the
Declaration on Human Rights Defenders (Declaration on the Rights and
Responsibility of individuals, Groups, Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms) amongst
others. All of which have been ratified in Nigeria and by the Nigerian government.
This is not to posit its automatic application in the Nigerian system and its laws.
There is however a level of persuasion it holds. When there are areas where it is
unclear what the law or its purport or intention is, resort is then made to the English
Common Laws, or international laws that have not been adopted or domesticated
into the Nigerian Laws.
Section 12 of the Constitution which provides that: “No treaty between the
federation and any other country shall have force of law except to the extent to which
any such treaty has been enacted into law by the National Assembly”. For instance,
on the 17th of April, 2012, the African Union’s Kampala Convention for the
Protection and Assistance of the IDPs was signed and ratified by Nigeria 395. It has
however not been domesticated. What this means essentially is that it cannot be
enforced like a Statute enacted in Nigeria or have the binding force of the law of the
land.396 S.40 of the 1999 Constitution (as amended) of the Federal Constitution of
Nigeria provides that:
every person shall be entitled to assemble freely and associate with
other persons and in particular he may form or may not belong to any
political party, trade union or any other association for the protection
of his interests…

394
UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May
2012, para. 52.
395
African Union, African Union Convention for the Protection and Assistance of Internally Displaced
Persons in Africa(“Kampala Convention”) October 23, 2009,
https://www.refworld.org/docid/4ae572d82.html accessed November 27, 2019.
396
JA Dada, ‘Human Rights under the Nigerian Constitution: Issues and Problems’ (2012)
International Journal of Humanities and Social Science Vol. 2 No. 12, 38-39.

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7.0 T HE V A R I OU S S E T B A C K S (L E G AL A ND OT HE R WI S E ) F A CE D I N
A P PL YI N G T H I S R I G HT
Closely linked to the Freedom of Association is the right to freely protest. This right
does not belong in a vacuum and in itself is not a Fundamental Human Right as
entrenched in the Constitution but is taken as a broader expression of the Freedom
to associate, to peacefully assemble and even to express oneself in thought and
opinion which are all Fundamental Human Rights as contained in the Nigerian
Constitution.397 In other words, as natural as it is for human beings to associate with
others, so it is with having an opinion and airing it. The individuality of human
beings sometimes leads to dissent and we can be similar as we are diverse in culture,
religion, opinions and very definitely political views. The Polaris of every modern
democratic society is the presence of opposition in ideological beliefs whether
political or otherwise. It is the way this society thrives, it is how it develops by
diversity of socio-economic views and policies being explored and being made to
grow society faster.398 In simple terms, political dissent of views is expected and
should be encouraged. Sometimes governments do not thrive as they should or
policies that are unfavourable to the general public are put into place; other times it
might just be a particular organization or academic institution in which there is an
unrest or deep dissatisfaction in the average – in cases of national governments for
instance Nigeria, where absolute power does not rest with the Executive arm of
government but there exist alongside the judiciary and legislature arms to checkmate
these powers; political parties, groups or even a single individual can be a strong
voice of dissent. In some cases, people as in the examples aforementioned can take
to the streets to air these demands.

Preceding most protests are assemblies whether organized or not. The UN Special
Rapporteur defined assembly as: “an intentional and temporary gathering in a
private or public space for a specific purpose. They are therefore demonstrations
inside meetings, strikes, processions, rallies or even sit-ins.”399 As much as a right
as it is however, there have been legal mechanisms put in place to checkmate the
easy turning of the enjoyment of these rights into something else and as it is shown
in all laws governing the entitlement of this right, there are restrictions given by the

397
Sections 38, 39 and 40 of the Constitution of the Federal Republic of Nigeria 1999 CAP. C23 LFN,
2004.
398
Second Administrative Reforms Commission, Introduction Public Order, National Security,
Economic Development and Social Harmony, (Fifth report, 2007)1-6.
399
UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May
2012, para. 24; AComHPR, Report of the Study Group on Freedom of Association and Assembly in
Africa, 2014, p. 25, para. 18. See AComHPR, Guidelines on Freedom of Assembly and Association
in Africa, para 3.

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Constitution of the Federal Republic of Nigeria. As with every right, rule, duty or
principle- there are exceptions to these, as with every right contained in the Nigeria.
S.45(1) of the constitution states that nothing in Sections 37, 38, 39,
40 and 41 of the Constitution shall invalidate any law that is
reasonably justifiable in a democratic society;
a. In the interest of defence, public safety, public order, public
morality or public health; or
b. For the purpose of protecting the rights and freedom of the
persons.
For clarity, the African Charter also states that freedom of association: “shall be
subject only to necessary restrictions provided for by law, in particular those enacted
in the interest of national security, the safety, health, ethics and rights and freedoms
of others.”400 Other international Instruments contain similar provisions. For
instance Article 22 (2) of the ICCPR provides for the delimitations of Freedom of
Association and of Article 8 (c) of the ICESCR provides that the right of trade unions
to function freely subject to no limitations other than those prescribed by the law
and which are necessary in a democratic society in the interest of national security
or public order or for the protection of the rights and freedoms of others and
subsection (2) of the aforementioned state article shall not prevent the imposition of
lawful restrictions of these rights by members of the armed forces or of the police
or of the administration of the state

As a general matter, any restrictions imposed on freedom of association by the State

must be lawful, necessary and proportionate to a legitimate aim. General Comments
34 of the Human Rights Committee has provided clarification on the core notions to
describe legitimate aims: “Public Order refers to the sum of rules ensuring the
peaceful and effective functioning of society…”401 Public order implies the absence
of disturbance, riot, revolt, unruliness and lawlessness. In Nigeria, there are laws
penalizing criminal actions. Irrespective of the nature of a political system –
democratic or autocratic, federal or unitary– maintenance of public order is
universally recognized as the prime function of the State. 402

The UN Human Rights Committee has explained that, to meet the requirement that
a restriction be “’prescribed by law,’ a restriction must be “formulated with
400
ACHPR, Art. 11.
401
UN Human Rights Committee, General Comment 34: Article 19 (Freedom of opinion and
expression), UN Doc. CCPR/C/GC/34 (2011), para. 33.
402
Second Administrative Reforms Commission Government of India, Public Order- A General
Perspective (FIFTH REPORT) JUNE 2007.

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sufficient precision to enable an individual to regulate his or her own conduct

accordingly and it must be made accessible to the public.”403

In order to meet this principle of legality, the law should not use vague, imprecise
or broad definitions of legitimate motives for restricting the right. Also, a law cannot
allow for unfettered discretion upon those charged with its execution. This is
especially true in connection with the Security agencies charged with the weight of
guarding these laws. Although these exceptions are as necessary as they are valid
in any democratic society, which are seen in all the international instruments ratified
by Nigeria, it is however of utmost importance to understand the practice and
functionality of the rights in relation of its limits of laws governing criminal behavior
that may arise. For instance, with the enactment of the Public Order Act Cap 382,
Laws of the Federation 1990, there arose, problems and the question of whether the
very thing it was seeking to restrict was the Fundamental Right of Association and/or
Peaceful Assembly. By virtue of S.1 (1) of the Public Order Act, the governor of
each state is for the purposes of proper and peaceful conduct of public assemblies,
meetings and processions and subject to S.11 of the Public Order Act empowered to
direct the conduct of assemblies, meetings and processions on the public roads or
places of public resort in the state and prescribe the route by which and the times
which any procession may pass.

The veracity of the Public Order Act came under scrutiny in the cases of Inspector-
General of Police v All Nigeria Peoples Party (ANPP) & Others404 and Dr Lewis
Chukwuma and 2 Others v Commissioner of Police.405 In Lewis’s case, the
appellants, a socio-cultural association of all Igbo-speaking people in Northern
Nigeria, were scheduled to host a meeting of its members at a hotel in Ilorin, Kwara
State. On the day scheduled for the meeting, the officers, men and agents of the
respondents (the Nigerian police) came to the venue and forcefully dispersed the
appellants and their members and sealed off the venue. Being aggrieved by the
action of the respondents, the appellants instituted an action at the Federal High
Court, seeking a declaration that the action of the respondents was a violation of
their constitutional right of association, freedom of movement and assembly and
therefore claimed damages against them. The trial court dismissed the action on the
ground that the actions of the police were justified. The appellants appealed to the
Court of Appeal which also affirmed the Federal High Court’s decision. However
in the ANPP case, dismissing the appeal against the IGP, it was held:

403
UN Human Rights Committee, General Comment 34: Article 19 (Freedom of opinion and
expression), UN Doc. CCPR/C/GC/34 (2011), para. 25.
404
(2007) 18 NWLR (Pt 1066).
405
(2006) ALL FWLR (PT. 335) 177CA.

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[T]he Constitution should be interpreted in such a manner as to

satisfy the yearnings of the Nigerian society. The 1999 Constitution
is superior to other legislation in the country and any legislation
which is inconsistent with the Constitution would be rendered
inoperative to the extent of such inconsistency. Section 1(2), (3), (4),
(5) and (6) and sections 2, 3 and 4 of the POA are inconsistent with
the constitution – they are null and void to the extent of their
inconsistency.406

The Court further emphasised that:

[t]he power given to the governor of a state to issue a permit under
the POA cannot be used to attain the unconstitutional result of the
deprivation of the right to freedom of speech and freedom of
assembly. The constitutional power given to the legislature to make
laws cannot be used by way of a condition to attain unconstitutional
result.407

Although in recent times the Act has not been referred to, it has also not been
repealed by the National Assembly. Also Security agencies in the country continue
to require and impose on associations the various permits and rules, sometimes
disallowing processions in respect. On 6 September 2016, police prevented
protesters from the Bring Back Our Girls campaign marching to the Presidential
Villa in Abuja. The campaign was formed to demand the release of school girls
abducted by terrorist group Boko Haram. The Inspector General of Police further
said that Bring Back Our Girls could not hold the protest until they presented an
official permission approving the action, even though they had approval letters408.

It is understood that this Law came into force when the Military Regime governed
the Nigerian state, it is however a grave mistake and continually so that this Law is
not repealed as it contains a loophole where there should be a full understanding of
the rights as entrenched not only in the laws but in the Nigerian society at large. This
has also caused a lot of confusion as legally there is not a foundation to stand on for
the imposition of this law but also seem to be a gateway for oppression to stand
whereby the existence and presence of this Law gives force to a system that has
seemingly found it impossible to understand the concept of Basic Human Rights in
the first place.

406
Ibid (n 26) Per Adekeye JCA 499-500 paras F-G.
407
499 paras B-C.
408
‘Nigeria: Police, Pro-Buhari Group Stop ‘Bring Back Our Girls’ March’, All Africa, September 7,
2016, <http://allafrica.com/stories/201609070966.html>.accessed at November, 29, 2019.

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To put simply, by virtue of the 1999 provision and the subsequent interpretation
given to it by the aforementioned, it is against the Law to bar anyone through the
indirect use of permits, conditions, and so on to regulate the free use said
fundamental right. Because some of the acts committed seem to have a covering for
the enjoyment of the Fundamental Human Rights whereas suppressing others’ or in
other cases, the acts are not criminal in nature but they are still able to hamper on
the rights of a majority in the vicinity or place where these particular rights are being
enjoyed, the necessity of these restrictions was rationalized. Although, the
government of the Federation has the governing charge of the people and is in the
position of the determining the extent of a law governing the rights of the people,
the extent and in what situations such rights can be curtailed- sometimes for the
greater good, this is to be done within the democratic framework which carries the
ideals of fairness, justice and equity.

Generally, Public Order or Disorder is a fluid concept. Varying degrees of which

may be seen in a different light from the other. For instance, an autocratic leader
may decide any expression of dissent as public disorder. Even within the democratic
society, what might count as public disorder to one might not count as such to
another. For example, if a dominant section of society indulges in degrading forms
of exploitation of the underprivileged sections, the resultant protests by the latter are
often perceived by law enforcement agencies as public disorder, but for the exploited
sections, the injustice is a breach of their human rights against which they have
vented their dissatisfaction.409

8.0 T HE C A S E O F I B R A HI M E L Z AK Z AK Y
The issue of Public Order or Disorder as it relates with the right of association is
particularly notable especially in the case of the Shiites: In December 2015, the
Nigerian Army (hereinafter referred to as NA) killed 347 members of the Shia
Islamic Movement of Nigeria (hereinafter referred to as IMN), a religious sect, after
the group staged a road blockade in the city of Zaria. Hundreds of IMN members
remain in custody, including the leader, Ibrahim El Zakzaky, and his wife, despite a
court ordering the government to release the couple within 45 days, pay them
approximately US$170 million in damages, and provide them with a secure
residence. This has also caused a wave of other violent clashes with the IMN
especially. A ban was imposed on the IMN by the Kaduna State government in
October 2016, it triggered a wave of other bans against Shia groups in four northern
states. Since then, Shia religious activities have been met with mob and police

409
IT Sampson, ‘The right to demonstrate in a democracy: An evaluation of public order policing in
Nigeria’ (2010) African Human Rights Law Journal AHRLJ, 2.

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violence, leading to the death of scores of IMN members410. In 2016 the government
of Kaduna made public the Kaduna State Judicial Commission’s nonbinding report,
which found that the NA used “excessive and disproportionate” force during the
2015 altercations in which 347 IMN members and one soldier died411. The
Commission recommended that the Federal Government conduct an independent
investigation and prosecute anyone found to have acted unlawfully. It also called for
the proscription of the IMN and the monitoring of its members and their activities.
In 2016 the government of Kaduna State published a white paper that included
acceptance of the commission’s recommendation to investigate and prosecute
allegations of excessive and disproportionate use of force by the NA412. The
Nigerian Courts have often held (as will be discussed below) on what constitutes
unlawful gathering or a violent one and precedents on the common intention to
prosecute a lawful purpose are rife but it is unclear as to whether this would apply
to a public gathering since it has been seen that protesters are often arrested and
brought under these provisions.

9.0 U NL A W F U L P R O C E S S I ON , C OM M ON I NT E NT I ON A N D T HE
P R OB L E M S T HE Y P O S E
In S.69 and S.100 of the Criminal Code Act and Penal Code respectively define what
constitutes an Unlawful Assembly:
When three or more persons, with intent to carry out some common
purpose, assemble in such a manner or, being assembled, conduct
themselves in such a manner as to cause persons in the
neighbourhood to fear on reasonable grounds that the persons so
assembled will tumultuously disturb the peace, or will by such
assembly needlessly and without any reasonable occasion provoke
other persons tumultuously to disturb the peace, they are an unlawful
assembly.

S.69 of the Criminal Code Act goes further to say: “It is immaterial that the
original assembling was lawful if, being assembled; they conduct themselves
with a common purpose in such a manner as aforesaid” S.105 of the Penal
Code gives a similar provision.

410
‘Nigeria: Events of 2016’, Human Rights Watch World Report 2017,
<https://www.hrw.org/world- report/2017/country-chapters/nigeria>. Accessed on December
4, 2019
411
Report of the Judicial Commission of Inquiry into the Clashes between the Islamic Movement in
Nigeria (IMN) and the Nigerian Army (NA) in Zaria, Kaduna State between Saturday 12th and
Monday 14th December 2015. July, 2016 "top secret”.
412
Nigeria 2018 Human Rights Report Country Reports on Human Rights Practices for 2018 United
States Department of State, Bureau of Democracy, Human Rights and Labour.

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In Oyakhire v State413, it was held that the common presumption court will arrive at
in determining common intent, the common intention to prosecute an unlawful
purpose, it was held that the probable presumption court would arrive at once it is
firmly established that 2 or more persons formed the necessary common intention to
prosecute an unlawful purpose and in the prosecution of such purpose, an offence
of such nature that its commission was a probable consequence of the prosecution
of such purposes is committed, each of them is deemed to have committed the
offence. In such circumstances, the courts once there is execution would be right in
asserting that it does not matter on such facts which of the accused did what.
In trying to understand how common intent is gauged, a quick look at the case of
Alao v State414, it was held by the Supreme Court that: “It is difficult if not
impossible to prove common intention. Intention can be inferred from the
surrounding circumstances disclosed in a given case”.
Similarly, In Nwakoala v State415, it was further held on joint liability in common
intention to prosecute an unlawful purpose that: “In practical terms, Common
intention is incapable of positive proof; its existence can only be inferred from the
circumstances disclosed…”
The provisions of S. 88 (1) of the Criminal Code Act are apt in describing what an
unlawful procession is, and it goes thus:
“Any persons who assemble together to the number of three or more
under the following circumstances-
a. Bearing or wearing or having amongst them any firearms,
bows and arrows, spear, sword, knife or other offensive
weapon; or
b. Publicly exhibiting any banner, emblem, flag, or symbol,
the displaying of which is calculated to promote
animosity between persons of different religious faiths or
different factions, or
c. an offence….
Being accompanied by any music, beating of drums, or other noise
calculated to promote such animosity and being assembled, join in
any parade or procession for the purpose of celebrating or

413
(2007) ALLFWLR {PT.344} 1 S.C.
414
LER (2015) S.C. 237/2011.
415
(2006)14 NWLR (Pt. 1000) 663 S.C.

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commemorating any festival, anniversary or event, relating to or

connected with any religious or other distinction or difference
between persons residing in Nigeria or of demonstrating any
religious or other distinction or difference are guilty of…”
The statute definitions of the offences given are one thing, the interpretation given
by courts of it are another, but whether these were formulated and/or decided with
the grey areas of unintentional and nonperson liability in respect of offences that are
committed in the exercise of a right is something that has not been tackled enough
by the Judicial system. It is also obvious from the foregoing that common intention
is a physiological concept that can only be gauged from the surrounding
circumstances but there are situations where common intention cannot be weighed,
calculated or evaluated from the circumstances. In Ogenyi v I.G.P,416 it was held
that;
If a casual crowd starts a fight, it is merely a sudden affray; that does
not make them an unlawful assembly or a riotous assembly for the
reason that when they gathered, they did not do so with the intent to
carry out some common purpose. There is a good deal of confusion
of thought owing to the provision that though the original assembling
was unlawful, the assembly may become an unlawful assembly later
if they conduct themselves with a common purpose in a such a
manner as is described in the section…
In a situation where an individual exercises his right to peaceful assembly while
another’s tendency to violence walks alongside, the question to be considered is
whether that should automatically impugn on the formers’ right of the action of
peaceful assembly417 because of judicial principles that are somewhat stilted in their
meaning and application; and not very cognizant of the wide girth given under the
law governing our Fundamental Human Rights.418 Under International Law, an
individual whose intentions and actions are peaceful does not lose the right to

416
(1957)N.L.N.L.R 140
417
UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April
2013, para. 70; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful
Assembly, 2nd edn, 2010, Explanatory Notes, para. 46; AComHPR, Guidelines on Freedom of
Assembly and Association in Africa, para 76 and 94; AComHPR, Report of the Study Group on
Freedom of Association and Assembly in Africa, 2014, 26, para. 24.
418
Tosin Osasona. ‘Time to reform Nigeria’s Criminal Justice System’ (2015) Journal of Law and
Criminal Justice. 3.10.15640/jlcj.v3n2a7 <www.researchgate.net/publication/315562221 Time to
reform Nigeria’s Criminal Justice System/citation/download> accessed December 6, 2019.

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assemble when others turn violent.419 In addition, association members should not
be penalized even when a member of an association has committed an offense, if
they themselves were not involved in the offense in question.

The case of International PEN, et al. v. Nigeria420 arose after a set of murders that
followed a rally of the Movement for the Survival of the Ogoni Peoples (MOSOP)
for the protection of those who lived in oil-producing areas of Ogoni land. Certain
association members were detained for murder on the basis they had incited
members of MOSOP to murder four rival Ogoni leaders. They were eventually
sentenced to death and executed, before their case was submitted to the African
Court on Human and Peoples’ Rights (ACtHPR) by non-governmental
organizations. (ACtHPR) found that Article 10 of the African Charter had been
violated as they were essentially found guilty by the Nigerian court on the basis that
they were part of an association, rather than for their individual behaviour.

This case is important from the perspective of trying to determine a person’s

fundamental right to association as opposed to the narrow criminal offence and their
applications when they are juxtaposed. It is also interesting to note that the Criminal
law principles stealthily undermining the rights as guaranteed under the constitution
are the same principles being used today to convict accused persons of Criminal
offences today421. The African Commission on Human and Peoples’ Rights
(AComHPR) guidelines confirm this basic principle of law with regard to the
freedom of association:
Offenses committed by particular members of associations shall not
be taken as grounds to penalize the association itself, where the
official decision-making structure of the association was not
employed to pursue those offenses. Similarly, offenses committed by
an association, i.e. through its officers, shall not be imputed to
members of the association who did not take part in the offenses in
question.422

419
UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or
arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February
2016, para. 61.
420
International PEN, et al. v. Nigeria Communication No. 137/94, Merits Decision, 24th Ordinary
Session (1998), para. 103.
421
PN Nwokolo, ‘The Nigerian Press and The Law of Sedition: A Progressive Interpretation’ Review
of Education Institute of Education Journal, University of Nigeria Nsukka. Vol. 23. No.1. 210-224.
422
AComHPR, Guidelines on Freedom of Association and Assembly in Africa, 2017, para. 57. See also
AComHPR, Draft Guidelines on Freedom of Association and Assembly in Africa, 22 September
2016, para 51.1.

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10.0 S E C U R I T Y A G E N C I E S A N D T HE N E CE S S AR Y R E S P O NS E TO
E XE R CI S E O F T HE R I G HT T O A S S O CI AT E AN D / OR I T S E XCE S S

If the wording of S.40 of the Constitution is to be properly adhered to, Laws enacted
have to entertain the positional edge of this understanding for anytime there is a
public gathering. The UN Human Rights Council has stated that if the organizers of
an assembly have peaceful intentions, they are exercising the right to peaceful
assembly.423 This does not change if, despite these intentions, violent acts are
committed by others.

In respect of the exceptions to this right i.e public safety and public order, the police
are crucial to the deployment of facilities necessary for the above concepts to be
enjoyed. One can argue that the police are organised to protect and secure the
interests of the state and its regime in consonance with the traditional security
conception, while the security of society is put at cross-purposes with state or regime
security. In reality, however, the police’s mandate in contemporary society is for
protection for the state and the socio-political and economic interest of the dominant
class or even the legal order424. The communal mandates and prospects of security
– for which the police play a dominant role – have burgeoned beyond the state and
the polity. The community has an ample stake in characterizing its security needs,
which includes the protection of human rights and fundamental freedoms.
Unfortunately, any demand for these real security needs by members of society is
often viewed as a challenge to the established order, and, therefore, repressed by the
police. Federal and state authorities have focused efforts on recruiting police,
deploying soldiers to quell civil unrests, importing sophisticated guns for the
security agencies and reintroducing ad hoc security taskforces, such as the Rapid
Response Squad and Operation Fire -for- Fire and recently SARS.425

The International Court has repeatedly condemned the deployment of forceful

means (including the use of pepper spray, tear gas or truncheons) to disperse
“unlawful” but peaceful assemblies that pose no threat other than possibly disrupting
traffic. The joint report on the proper management of assemblies’ states:

423
UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May
2012, para. 25; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful
Assembly, 2nd edn, 2010, Guideline 1.3.
424
Ibid (n. 45).
425
CI Nwagboso, ‘The Nature of Internal Security Problems in African States: The Nigerian
Experience’ (2016) International Journal of Academic Research in Business and Social Sciences,
vol 6, No 4 ISSN: 2222-6990.

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Before countenancing dispersal, law enforcement agencies should

seek to identify and isolate any violent individuals separately from
the main assembly and differentiate between violent individuals in
an assembly and others. This may allow the assembly to continue.426

The joint report on the proper management of assemblies urges a high level of
restraint in resorting to dispersal:
Dispersing an assembly carries the risk of violating the rights to
freedom of expression and to peaceful assembly as well as the right
to bodily integrity. Dispersing an assembly also risks escalating
tensions between participants and law enforcement. For these
reasons, it must be resorted to only when strictly427.

For the AComHPR, dispersal should be “a measure of last resort.”428 In line with
the necessity and proportionality principle, force should only be used if there is no
alternative, and should be limited to the minimum needed. The UN Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials state: “the dispersal
of assemblies that are unlawful but non-violent, law enforcement officials shall
avoid the use of force or, where that is not practicable, shall restrict such force to the
minimum extent necessary”429.

The circumstances and degree to which force may be used during an assembly must
be regulated by law and administrative rules (such as standard operating procedures
and rules of engagement), limiting the discretion of law enforcement personnel; this
is confirmed by many authorities. In Nigeria, it is obvious that the attitude of Law
enforcement to civil protests and demonstrations is unseemly. A large part of it is
because of the lack of training prescribed by the Human Right Laws in respect of
Fundamental Human Rights but also one cannot ignore the political components of
the interests of the government which more than not determines the relationship of
an agent acting on behalf of its principal.430

426
Ibid (n 45).
427
Ibid.
428
AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, March
4, 2017, para. 22.1; AComHPR, Guidelines on Freedom of Assembly and Association in Africa, para.
94; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014,
65, para. 39.
429
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the
Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 13.
430
Nwano and Bamidele ‘Defining the Agency of the Police: Conflicting Legal Approaches’ (2018)
NAUJILJ 9 (2).

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The UN Special Rapporteur found that massive deployment of force increases

tension and aggression begets aggression431. In equipping law enforcement
personnel, regard should also be had to the impression their visual appearance will
make on participants, to avoid any provocative or intimidating effect.

The AComHPR similarly states: In the deployment of officials to an assembly, law

enforcement agencies must take into account the potential adverse influence that the
visible appearance of law enforcement officials, deployment tactics and equipping
of officials at an assembly can have on the way in which an assembly develops.
Force may only be used when the alternatives have been exhausted432.

The use of firearms for law enforcement during assemblies is subject to specific
rules. A core principle is that firearms may never be used simply to control or
disperse an assembly433.
The UN Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials state:
Law enforcement officials, in carrying out their duty, shall, as far as
possible, apply non-violent means before resorting to the use of force
and firearms. They may use force and firearms only if other means
remain ineffective or without any promise of achieving the intended
result434.

The UN Human Rights Council holds that “lethal force may only be used to protect
against an imminent threat to life,” and never in an indiscriminate manner against a
crowd435”. The UN Human Rights Council has urged States to: “investigate any
death or injury committed during protests, including those resulting from the
discharge of firearms or the use of non-lethal weapons by law enforcement

431
UN Human Rights Council, Report of the UNSR on his mission to the Republic of Korea,
A/HRC/32/36/ Add.2, para 31.
432
AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4
March 2017, para. 14.2.
433
UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or
arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February
2016, para. 60; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials
in Africa, 4 March 2017, para. 22.6; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A,
para. 82.
434
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the
Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 4.
435
UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in
the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, para. 10.

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officials”436. The legal obligation to investigate deaths, injuries and inhuman or

degrading treatment occurring in connection with assemblies is confirmed by the
jurisprudence of a range of international courts and mechanisms. An investigation
is only adequate if it results in those responsible for any unlawful killings, torture or
ill-treatment being punished, to a degree sufficient to ensure a deterrent effect.
Criminal sanctions should not only be applied to those enforcement officials using
unlawful force, but also to any superior officer who failed to take measures within
his or her power to prevent, suppress or report such use.

There is increasing concern globally about the criminalization of persons who

exercise the right to assemble; a concern expressed by, among others, the UN
Special Rapporteur. “Criminalization” refers to administrative or criminal measures
taken to sanction participants or organizers of assemblies437. A number of
international courts and mechanisms have made it clear that the application of
criminal or administrative sanctions to organizers of or participants in peaceful
assemblies warrants particular scrutiny; in principle there should be no threat of
sanctions for participation in assemblies. This is true all the more of the imposition
of prison sentences438.

11.0 T H E C A S E O F O M OY E L E S OW O RE AN D N NAM DI K AN U
A Human rights activist and owner of a news media outlet in Nigeria, Omoyele
Sowore was arrested a couple of months ago for distributing leaflets to the populace
in order to join in protest titled #Revolution Now. He was arrested on charges
amounting to treason and under S. 24(1) of the Cyber Crime Act for the use of the
word “revolution”. This Law states that: Any person who knowingly or intentionally
sends a message or other matter by means of Computer systems or network that:

(a) is grossly offensive, pornographic or of an indecent, obscene or

menacing character or causes any such message or matter to be so
sent; or

436
UN Human Rights Council, The promotion and protection of human rights in the context of
peaceful protests, UN Doc. A/HRC/RES/22/10, adopted on 9 April 2013, para. 9.
437
UN Special Rapporteur and Human Rights Centre of the University of Ghent, Third Party
Intervention before the European Court of Human Rights in Mahammad Majidli v. Azerbaijan (no.
3) and three other applications, November 2015, para. 14; see also IACHR, Report on the
Criminalization of the Work of Human Rights Defenders, OEA/Ser.L/V/II, Doc.49/15, 31 December
2015, para. 12.
438
Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para.
146 (references omitted); see also Akgöl and Göl v. Turkey, ECtHR, Judgment of 17 May 2011,
para. 43; Pekaslan and Others v. Turkey, ECtHR, Judgment of 20 March 2012, para. 81; Yılmaz
Yıldız and Others v. Turkey, ECtHR, Judgment of 14 October 2014, para. 46.

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(b) he knows to be false, for the purpose of causing annoyance,

inconvenience danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred, ill will or needless anxiety to another or
causes such a message to be sent: commits an offence under this Act
and shall be liable on conviction to a fine of not more than N7,
000,000.00 or imprisonment for a term of not more than 3 years or to
both such fine and imprisonment.

In understanding the offences Sowore was charged with and their relation to
controversial terms understood in light of the above mentioned law and Terrorism
Act, the following concepts will be analysed: revolution, treason, hate speech

12.0 W HA T N A T I ON A L S E C U R I T Y U ND E RS CO RE S
Revolution has been defined by the Cambridge dictionary to mean a change in the
way a country is governed, usually to a different political system and often using
violence and war439. It was also defined by the same dictionary as a very important
change in the way people do things. Revolutions are usually great turning points in
history, though usually marred by a violent synthesis. They vary in their aims and
motives. Sometimes, it seeks to change a current political order, other times; it seeks
economic and social change440. Because of the fluid use and meaning of the word
revolution, there have been offered several interpretations, causes and meanings.
Some have likened it to a negative event while others have posited its necessity in
the progress, development and advancement of society. This understanding is
crucial as we take a look at the first definition given of revolution in the Merriam-
Webster dictionary. It states: “the action by a celestial body of going round in an
orbit or elliptical course. It also states in a different definition as a sudden radical or
complete change.” Reflecting introspectively, it is seen clearly that every individual,
thing, sector or society goes through revolution of some sort. This only goes to show
the broad nature of such a word and concept.

Treason for the purposes of this study is defined by Merriam-Webster dictionary as:
the offence of attempting by overt acts to overthrow the government
of the state to which the offender owes allegiance or to kill or
personally injure the sovereign or the sovereign’s family. According

439
Cambridge University ©CAMBRIDGE UNIVERSITY PRESS
2019<https://dictionary.cambrigde.org> accessed on December 02, 2019.
440
Laura Neitzel What is Revolution? <www.docslides.com/conchitamarotz/what-is-revolution--
Laura-neitzel-579> accessed on December 02, 2019.

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to the Cambridge dictionary, it is the crime of helping your country’s

enemies or attempting to illegally remove its government.441
Treason is a Criminal offence which states in S. 37(1) of the Criminal Code that any
person who levies/wages against the state in order to intimidate or overawe the
president or governor of a state is guilty of the offence of treason and liable to
punishment by death.
A foremost realist scholar, Thomas Hobbes (1588 – 1679) described security as the
“protection of lives and property, the entire law and order through the political
sovereignty and monopoly of violence which the state or government provides.”
Similarly, national security has been described by Aja to include:
Overall total security of life and property; security of the economy
and the economic resource sectors of the country; security of food
and raw material resources of the people as well as their general
health; the environment; national integrity and preservation of all that
a society considers to be dear, important and valuable.442
On the strength of the above definition I will discuss the issue of Nnamdi Kanu.
Nnamdi Kanu is the founder of Indigenous People of Biafra, which was founded in
2014. The movement wants a group of states in South east Nigeria made up mainly
of people from the igbo ethnic group to break away and form the independent nation
of Biafra, before then he established a radio station called Radio Biafra, which also
called for an independent state for the igbo people and broadcast to Nigeria from
London443. In his addresses, he often allegedly urged Biafrans to take up arms444.
Sometime in October, 2015, he was arrested and charged with criminal Conspiracy,
intimidation and membership of an illegal organization. He was however never tried
for the said charges. After he was granted bail in April, 2017, he seemingly flouted
his bail conditions which included a ban on political speech, media interviews and

441
Merriam-Webster SINCE 1828 <https://www.Merriam-webster.com/dictionary/treason>
accessed at December 02, 2019.
442
AA Aja, ‘Policy and strategic studies, unchartered waters of war and peace in international
relations’ (2009) Rev Edition. Abakaliki: Willy Rose & Appleseed.
443
Gideon Nwafor, Blessing Omoevah(2019). Analysis of Radio Biafra Effectiveness on the Renewed
Agitation for the Restoration of Biafra Republic among Listeners in Onitsha Metropolis
https://www.researchgate.net/publication/333263153_Analysis of Radio Biafra Effectiveness on
the Renewed Agitation for the Restoration of Biafra Republic among Listeners in Onitsha
Metropolis> accessed on December 4, 2019.
444
BBC NEWS Biafran Leader Nnamdi Kanu: The man behind Nigeria’s
seperatists<www.google.com/amp/s/www.bbc.com/news/amp/world-africa-3979318>
accessed at December 4, 2019.

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speeches before crowds of more than 10 people445. In September of that same year,
his home was allegedly raided by the military. He was heard on a broadcast on Radio
Biafra explaining that:
I ran away because Jubril (President Muhammdu Buhari) sent the military to
my house to come and kill me and they expected me to stay and confront
them. I’m unarmed just as IPOB members are unarmed group.446
Indeed, Amnesty International has investigated the reported death of IPOB
members. As a matter of fact, in November 2016, there was documentation of the
alleged killing of more than 150 pro- Biafra activists447.

13.0 H AT E S P E E C H - A N I M PE D I M E NT T O F R E E D OM O F S PE E C H ?
The Cybercrime (Prohibition & Prevention) Act 2015 provides a comprehensive
legal and regulatory framework “for the prohibition, prevention, detection,
prosecution and punishment of cybercrimes” in Nigeria. It seeks to address the
country’s notorious cybercrime epidemic. However, in the past year, Section 24 of
the Act on preventing cyber stalking has been used to arrest bloggers for publishing
content critical of the government. There are various provisions in the Nigerian
Broadcasting Commission Act dealing with violations which have become known
as hate speech with sanctions.448

According to Neisser, hate speech refers to:

all communications (whether verbal, written, symbolic) that insults a

racial, ethnic and political group, whether by suggesting that they are

445
Eromo Egbejule Their Leader is Missing, but Nigerria’s Biafran Separatists Aren’t Backing Down.
Tuesday, March 6, 2018
<https://www.google.com/amp/www.worldpoliticsreview.com/amp/articles/24303/their-
Leader-is-Missing,-but-Nigerria-s-biafran-Separatist- aren’t –backing-down> accessed at
December 5, 2019
446
Ebuka Onyeji ‘Why I ran away from Nigeria’ Nnamdi Kanu February 3,2019
<https://www.premiumtimesng.com accessed at December 5, 2019.
447
Amnesty International, Nigeria ‘Bullets Were Raining Everywhere’ Deadly Repression Of Pro-
Biafra Activists (Index: Ain 411/002/2016 November 2016)
https://www.amnesty.org/en/documents/afr44/5211/2016/en accessed at December 5, 2019.
448
BM Beli, ‘Challenging the Challenges of Broadcast Regulation in Nigera: A Study of the National
Broadcasting Commission’ (NBC) www.Academia.Edu/9179619 accessed on December 6, 2019

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inferior in some respect or by indicating that they are despised or not

welcome for any other reasons449.

United Nations Committee on the Elimination of Racial Discrimination noted that

hate speech include:
(a) all dissemination of ideas based on racial or ethnic superiority or
hatred, by whatever means;
(b) incitement to hatred, contempt or discrimination against members
of a group on grounds of their race, colour, descent, or national or
ethnic origin;
(c) threats or incitement to violence against persons or groups on the
grounds in (b) above;
(d) expression of insults, ridicule or slander of persons or groups or
justification of hatred, contempt or discrimination on the grounds in
(b) above, when it clearly amounts to incitement to hatred or
discrimination;
(e) participation in organizations and activities which promote and
incite racial discrimination450.

Hate speech has been given a special kind of attention from public figures in recent
times, and understandably so because of politically motivated comments, statements
from public figures and the likes wherewith the determination of the causative
factors have been linked to some of the security issues in the country451. Some
activists have however posited that this is a way for the government to temper with
the rights of Freedom of expression as guaranteed under S.39 of the Nigerian
Constitution. The use of counter-terrorism efforts to restrict freedom of association
has increasingly arisen as part of discussions of national security and public safety.
While recognizing that combating terrorism is a legitimate aim, international legal
experts have emphasized that the goal has also been misused as a pretext for
illegitimately limiting the right to freedom of association452. The Special Rapporteur
on the rights to freedom of peaceful assembly and association has noted that while
States have a responsibility to address terrorism:

449
E. Neisser ‘Hate Speech in the New South Africa: Constitutional consideration for a land
recovering from decades of rational repression and violence’ (1994) South African Journal of
Human Rights 10: 33-356.
450
United Nations Committee on the Elimination of Racial Discrimination (2013) General
recommendation on combating racist hate speech”, CERD/C/GC/35.
451
National Human Rights Commission of Nigeria (2015) A pre-election report and advisory on
violence in Nigeria‟s 2015 general elections, February 13.
452
UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May
2012, para. 21.

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This should never be used as a justification to undermine the

credibility of the concerned association, nor to unduly impede its
legitimate work. In order to ensure that associations are not abused
by terrorist organizations, States should use alternative mechanisms
to mitigate the risk, such as thorough banking laws and criminal laws
that prohibit acts of terrorism. In this context, all United Nations
agencies, notably those focusing on actions countering terrorism,
have a key role to play and bear the moral responsibility to ensure
that human rights in general, and freedom of association in particular,
are not impaired by counter-terrorism453.

As further noted by the UN Special Rapporteur on the promotion and protection of

the right to freedom of opinion and expression:

The Internet has not only made it easier for citizens to express
themselves freely and openly, but has also provided ideal conditions
for innovation and the exercise of other fundamental rights such as
the right to education and free association454.

According to Amnesty International, “Journalists, bloggers and the people that stand
up for human rights in Nigeria are constantly being arrested, harassed and
intimidated by the authorities. Trumped up charges is one tactic the government uses
to jail people who are speaking out against the government”455. The Terrorism Act
also poses the same kind of problem; According to the International Service for
Human Rights, some aspects of the Act are a “criminalization of dissent456”

UN Special Rapporteur on the rights to freedom of peaceful assembly and of

association equally stresses the positive obligation of the State to create an enabling
environment free from threats and intimidation, for all associations:

It is crucial that individuals exercising this right are able to operate

freely without fear that they may be subjected to any threats, acts of

453
Ibid (n 74), para 70.
454
UN General Assembly, Report of the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, Frank La Rue, UN Doc. A/66/290, 10 August 2011,
para. 61.
455
Amnesty International, Keep Abiri Jones out of prison <https://www.amnesty.org/en/get-
involved/take-action/free-abiri-jones.
456
ISHR, Nigeria/Secure an enabling environment for defenders12.03.2019
<https://www.ishr.ch/news/nigeria-secure-enabling-environment-defender> accessed on
December 5, 2019.

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intimidation or violence, including summary or arbitrary executions,

enforced or involuntary disappearances, arbitrary arrest or detention,
torture or cruel, inhuman or degrading treatment or punishment, a
media smear campaign, travel ban or arbitrary dismissal457.

In its general comment No. 34 (2011), the Human Rights Committee notes that
States will be in violation of their obligations under Article 19 (3) if they do not
ensure that treason or sedition laws are narrowly applied. In paragraph 30 of the
general comment, the Committee states:

It is not compatible with paragraph 3, for instance, to invoke such

laws to suppress or withhold from the public information of
legitimate public interest that does not harm national security or to
prosecute journalists, researchers, environmental activists, human
rights defenders, or others, for having disseminated such
information.458

Freedom of peaceful assembly is sometimes difficult to separate from freedom of

expression. Authors of communications to the Human Rights Committee that relate
to protests often invoke both freedom of expression and of assembly, and the Human
Rights Committee is willing to apply both rights. The provision as highlighted under
the 1999 constitution goes thus:
1. Every Person shall be entitled to freedom of expression,
including freedom to hold opinions and to receive and impart
ideas and information without interference.
2. Without prejudice to the generality of Subsection 1 of this
section, every person shall be entitled to own, establish and
operate any medium for the dissemination of information, ideas
and opinions459
Article 9 and Article 19 of the African Charter on Human and Peoples rights and the
Universal Declaration of human Rights respectively also provide for the Freedom of
expression.

457
UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May
2012, para. 64.
458
UN Human Rights Committee (HRC), General Comment no.34, Article 19, Freedoms of opinion
and expression, 12 September, 2011,
CCPR/C/GC/34.<https://www.refworld.org/docid/4ed34b562.html > accessed at December 5,
2019
459
Ibid, (n 80).

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There is a general lack of awareness of the concept of ‘human rights defender’, the
international framework for their protection, the defenders’ entitlement to specific
protection measures in relation to their particular exposure inherent to human rights
work and the corresponding State’s obligations to protect defenders and ensure a
favourable environment. As a result, many defenders in Nigeria work on the
assumption that certain risks are inherent to human rights work, rather than being
violations of their rights as human rights defenders460. Authorities are often
intolerant of journalists who are critical of the Government, especially when they
report on issues of corruption, State violence, and lack of good governance. It has
been noted that journalists critical of the Government are facing heightened risk, and
media outlets and reporters are being pressured to give up their sources461.
Human rights defenders in Nigeria face high levels of risk in their work, including
violent attacks, arbitrary arrest and detention, judicial harassment and
criminalisation462. Defenders operating in conflict zones, and those critical of the
Government experience heightened risk from State and non-State actors

S.41(C) of the Criminal Code Act is a very interesting provision, especially as it

pertains to the intent and mindset of lawmakers as at the time of making this law. It
states
any person who forms the intention to levy war against Nigeria in
order by force or constraint to compel the president to change his
measures or counsel, or in order to put any force or constraint upon,
or in order to intimidate or overawe any House of the National
Assembly or any other Legislature or Legislative authority…
The questions pertinent here are, how do we differentiate between a demand for
change by a group of persons, stakeholders or just the ordinary citizens of a state
from “constraint” “or “compulsion” if the measures or counsel of a president is
either corrupt or unfavourable to the working or living conditions of a state? Doesn’t
this pre ordain a society where the ordinary laws of the land can be interpreted and
used at leisure or the whims of the ruling power or class? Or are the ordinary laws

460
The Observatory - Front Line Frontline Protection of Human Rights Defenders, NIGERIA:
Defending Human Rights: Not Everywhere Not Every Right (International Fact-Finding Mission
Report) April 2010, P. 7
461
Submission by CIVICUS: World Alliance for Citizen Participation, NGO in General Consultative
Status with ECOSOC and Nigeria Network of NGOs: Federal Republic of Nigeria Joint Submission
to the UN Universal Periodic Review 31th Session of the UPR Working Group submitted March
29, 2018.
462
Criminal Code Act (2004), Nigeria Law < http://www.nigeria-law.org/Criminal%20Code%20Act-
PartI-II.htm#Chapter%207>. accessed on December 6, 2019

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of the land strong enough to sustain the democratic system with which everyone can
be protected? These questions will be answered in the subsequent paragraphs.

14.0 C ON C L U S I O N
There’s no gainsaying the fact that the indigenous laws of the land have to be
mollified to fit in the democratic framework that sensitizes the Rule of law. Perhaps
more importantly however is correct application by all sectors of the societies but
most especially the various government agencies. It is trite that international
instruments, though ratified with clauses for enforcement by its member states, have
no binding force in Nigeria. However the whole point of persuasion is to be able to
look at the ones who have gone before and learn from their errors and/or their
examples. It does not impugn on the sovereignty of the Land. What’s more is that
narrow application of Criminal laws does not succinctly reduce crime, it can
confuse, it can deny and it can make for a hostile environment that’s susceptible to
corruption which breeds violations but it certainly does not curb crime. As it is, the
human rights record of the Federal government of Nigeria is not good considering
its handling of the cases of Ibrahim El Zakzaky, Omoyele Sowore and Nnamdi Kanu.
However, there is room for improvement by ensuring an unreserved and prompt compliance
with rulings and judgments of court.

References
1. ARTICLE 19, The Global Campaign for Free Expression. Freedom of
Association And Assembly. Unions, NGOs and Political Freedom in Sub-
Saharan Africa. March 2001.
2. Chukwuebuka Ezeibe Christian HATE SPEECH AND ELECTORAL
VIOLENCE IN NIGERIA. July 2015
https://www.researchgate.net/publication/325258444 Accessed on Dec 16,
2019
3. Civic Space, Open Government Partnership Global Report DEMOCRACY
BEYOND THE BALLOT BOX. FIRST EDITION.
4. Dr. Alka Jauhari, Colonial and Post-Colonial Human Rights Violations in
Nigeria International Journal of Humanities and Social Science Vol. 1 No. 5;
May 2011
5. FAMOUS, Izobo Emerging Challenges In The Prosecution Of Terrorism
Offences In Nigeria. International Journal of Innovative Legal & Political
Studies 7(1):40-52, Jan.-Mar., 2019.

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6. Isaac Terwase Sampson* The right to demonstrate in a democracy: An

evaluation of public order policing in Nigeria (2010) 10 AFRICAN HUMAN
RIGHTS LAW JOURNAL.
7. Kolawole Olaniyan The African Union Convention on Preventing and
Combating Corruption: A critical appraisa l(2004)AFRICAN HUMAN
RIGHTS LAW JOURNAL.
8. Maina Kiai, The right to freedom of association by United Nations Special
Rapporteur on the rights to freedom of bpeaceful assembly and of association.
Published in April 2017 FOAA ONLINE
9. Makau Mutua THE AFRICAN HUMAN RIGHTS SYSTEM A Critical
Evaluation
10. MASHOOD A. BADERIN, MANISULI SSENYONJO Development of
International Human Rights Law Before and After the UDHR SOAS School
of Law Legal Studies Research Paper Series. November 2010
https://www.researchgate.net/publication/228220713 accessed on Dec 16, 2019

11. Mr. Michel Forst WORLD REPORT ON THE SITUATION OF HUMAN

RIGHTS DEFENDERS. United Nations Special Rapporteur on the Situation of
Human Rights Defenders. December, 2018.
12. Peter C. Meyers, Rights From Natural Rights to Human Rights and Beyond
No. 197 | December 20, 2017.
13. Submission by CIVICUS: World Alliance for Citizen Participation, NGO in
General Consultative Status with ECOSOC And Nigeria Network of NGOs.
Submitted 29 March 2018.
14. The International Council on Human Rights Policy. Crime, Public Order and
Human Rights. https://ichrp@international- council.org Accessed on Dec 16,
2019
15. The Observatory- Frontline NIGERIA: Defending Human Rights: Not
Everywhere Not Every Right April 2010 International Fact-Finding Mission
Report.
16. UNITED FOR HUMAN RIGHTS. A BRIEF HISTORY OF HUMAN
RIGHTS. The Cyrus Cylinder (539 BC)(2019).
<https://www.humanrights.com/what-are-human-rights/brief history> accessed
26th of November, 2019

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C O M P A R I S M O F F U N D A M E NT A L R I G HT S (E NF O RCE M E NT
P R OC E D U R E ) (F R E P ) R U L E S , 1979 A N D 2009, A N D T HE L E G AL
D I S S A B I L I T Y O F (F R E P R UL E S , 2009) I N C O VE RI N G A L L
V I OL A T I O N S O F R I G HT S I N N I GE RI A

BY:

DAUD FAZAZY SEGUN, Esq.**

A B S T RA CT

The current Fundamental Rights (Enforcement Procedure) Rules,

(FREP) Rules, 2009 are novel, courageous and encouraging in
many respects compare to FREP Rules, 1979. Without doubt, the
new Rules exhibited the great and commendable attempt by the
judiciary in ensuring that human rights are truly protected in
Nigeria. For the first time in this country, the Judiciary has
introduced a true way of enforcing right through the FREP Rules
with a preamble that is actually meant to advance human rights
enforcement and to further protect the interest of all classes of
litigants especially the poor, the illiterate, the uninformed and
the vulnerable .However, the FREP Rules, 2009 do not cover all
instances of violation of rights especially the area not specifically
mentioned by the Constitution under Chapter IV and African
Charter; these rights are to be enforced through ordinary rules of
practice of the High Court of a State or Federal High Court. The
FREP Rules, 2009, also provide that where in the course of any
Human Rights proceedings, any situation arises for which there
is or appears to be no adequate provision in these Rules, the Civil
Procedure Rules of the court for the time being in force shall
apply. The general principle is that the Civil Procedure Rules of
the court will be used to commence an action where the
substantive claim or relief is not based on abuse of human rights
specified by Chapter IV of the 1999 Constitution. Apart from the
above, there are many instances where the alleged fundamental
right infraction falls under chapter IV of the Constitution or
African Charter on Human and People’s Rights, but the Applicant
fails to comply with the clear provisions of the Rules, same will
also be a ground to defeat the action under the Rules.

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Consequently, this paper will look at the inadequacies or

loopholes of the FREP Rules, 2009 vis-à-vis the necessary
suggestion for future amendment.

Keywords: FREP Rules, 2009 – Fundamental Rights

(Enforcement Procedure) Rules, 2009

1.0 I NT R O D U C T I O N

As laudable as the provisions of FREP Rules, 2009, there are inadequacies in the
Rules, which affect the intention of the legislature in ensuring that these Rules cover
all violations of rights. The topic of this paper encapsulates those concepts, which
are not free from ambiguities or likely to be misinterpreted. It is therefore pertinent
to begin with the identification and definition of those concepts in the context of our
discourse

1.1. Fundamental Rights

Fundamental Right means any of the rights provided for in chapter IV of the
constitution, and includes any of the rights stipulated in the African Charter on
Human and People’s Rights (Ratification and Enforcement) Act.463

Fundamental Human Rights are not ordinary rights. They are elevated rights. Some
of them have their origin in the international conventions or treaties. They are special
class of rights and no person shall be deprived of the enjoyment of any of such rights
except by the proper observance of the due process of law.464 It is regarded as those
aspects of human rights that have been entrenched and legally recognized by the
constitution of a country purposely to enhance human dignity and liberty in a
modern society.465 These human rights remain the same whether it is called
“fundamental human rights” “human rights” or “fundamental rights” within the
municipal confines or international bills of rights like the Universal Declaration of
Human Rights, the international Covenant on Economic, Social and Cultural Rights
and the International Covenant on Civil and Political Rights.466

463
Order 1, Fundamental Rights (Enforcement Procedure) Rules, 2009.
464
Per Gumel JCA, Abdulkareem v. L.S.G. (2016) ALL FWLR (PT. 850) 1101 @ 1175, PAR. D – E.
465
Femi Falana, ‘Fundamental Rights Enforcement’, 1st Edition, Legal Text Publishing Co. Ltd, 2004,
P. 4.
466
O. N. Ogbu, ‘Human Rights and Practice in Nigeria; an Introduction,’ CIDJAP Press, Enugu, 1999,
P. 31

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Specifically, the Nigerian Constitution have provided for “fundamental rights”467

consequent upon which our courts have drawn a line of difference between “human
rights” and “fundamental rights”. Per Nasir P.C.A in Ozoukwu & Ors v. Ozeonu
II &Ors468 put the issue in a proper context when he said:

“Due to the development of Constitutional Law in this field distinct

difference has emerged between ‘Fundamental Rights’ and ‘Human
Rights’. It may be recalled that human rights were derived from and
out of wider concept of natural rights. They are which every civilized
society must accept belonging to each person as a human being.
These were termed human rights. When the United Nations made its
declaration it was in respect of ‘Human Rights’ as it was envisaged
that certain rights belonging to all human beings irrespective of
citizenship, race, religion and so on. This has now form part of
International Law. Fundamental right remains in the realm of
domestic law. They are fundamental because they have been
guaranteed by the fundamental law of the country; that is by the
constitution”

These inalienable rights cannot be taken away from any person without going
through the due process of law as envisaged by the Constitution469. In examine the
nature of fundamental rights under the Nigerian Constitution; Eso J.S.C in the case
of Chief (Mrs.) Olufunmilayo Ransome-Kuti & Ors v. Attorney General of
Federation470 made the following remark:

“This is no doubt a right guaranteed to everyone including the

appellants by the Constitution. But what is the nature of fundamental
rights? It is a right, which stands above the ordinary laws of the land
and which in fact antecedent to the political society itself. It is a
467
Chapter IV, 1999 Constitution of the Federal Republic of Nigeria.
468
(1991) 6 NWLR (Pt. 200) 708 @761.
469
In N.U.E.E v. B.P.E.(2010) ALL FWLR (Pt. 525) 201, the Supreme Court was to consider Section 45,
315 and 316 of the Constitution of the Federal Republic of Nigeria, 1999, and the held that in
putting their case in the matter, the defendants/appellants appear not to have given due
recognizance to the provision of section 45 of the constitution of the Federal Republic of Nigeria,
1999 which more less restricts and derogates from such right given under section 40 however
liberally construed. The fundamental right under section 40 as well as other rights, i.e. under
section 37, 38, 39 and 41 has to be read subject to what is reasonable within a democratic society.
That is to say that the defendants / appellants’ rights under section among other fundamental
rights under the constitution of the Federal republic of Nigeria, 1999, are not absolute. They have
to be exercised to the limits of the ambit of the section 45 of the Constitution of the Federal
Republic of Nigeria, 1999.
470
(1985) 6 SC 245 @ 276 – 277.

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primary condition to the civilized existence and what has been done
by our constitution, since independent starting with independent
constitution, that is, the Nigerian (Constitution) Order in Council,
1960, up to the present Constitution, …is to have these rights
enshrined in the Constitutions so that the rights could be ‘immutable’
to the extent of the non- immutability of the Constitution itself.”

The appellate Court in the case Ahuruonye v. Ikonne471 has emphasized the need
for the Nigerian Courts to stress every nerve to enforce the fundamental rights of
citizens, to be proactive and if necessary, to show their impetuous readiness to
suppress any abuse of these rights especially, the rights to personal liberty under
section 35(1) of the Constitution. The Court states as follows:

“The Fundamental Rights guaranteed in the Constitution are rights

to which every person (Citizens of Nigeria), is entitled when not
subject to the disabilities enshrined in that Constitution by virtue of
being human beings. The rights are said to be so basic and
fundamental that they are entrenched in Chapter IV of the
Constitution. One of such rights is right to personal liberty as
enshrined in section 35(1) thereof. There is need for the Courts to
stress every nerve to enforce the fundamental rights of citizens, to be
proactive and if necessary, to show their impetuous readiness to
complement or surpass the efforts of the executive by an inspiring
approach to the definition or recognition of circumstances of human
rights where appropriate or feasible.”472

Besides being proactive, the appellate Court has also made it mandatory that all
matters involving the fundamental rights of any person(s), especially the liberty of
the individual, should be given priority over all other matters and heard immediately
they are filed in court. Courts should, where possible, ignore procedural formalities
when considering such matters and assume all activist role by ruling immediately
after hearing arguments, or very soon thereafter. On no account should any person
be kept in custody for a day longer than is necessary. The Liberty of an individual
must at all times be paramount. The Judiciary must assume a more robust role in
affairs of the fundamental rights of all individuals. 473

1.2. Fundamental Human Rights in Nigeria

471
[2015] ALL FWLR (PART 811) PAGE 1233 @ 1244 – 1245 (PARAS 5, 6 & 8)
472
See also Odogwu v. Attorney General of the Federation (1996) Vol. 40/41 LRCN 1454; Nemi v.
Attorney General, Lagos State (1996) 6 NWLR (Pt. 452) 42
473
Benson V. C.O.P. [2016] ALL FWLR [Pt. 840] P. 1255 @ 1258

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The Fundamental Human Rights are rights guaranteed under in the Nigerian
Constitution, which are enforceable against the government and private persons.
They are rights to which every person (Citizens of Nigeria) is entitled as enshrined
in the Constitution by virtue of being human beings. It is the foundation of
democracy.474The rights are said to be so basic and fundamental that they are
entrenched in Chapter IV of the Constitution, one of such rights is right to personal
liberty as enshrined in section 35(1) thereof.

There is need for the Courts to stress every nerve to enforce the fundamental rights
of citizens, to be proactive and if necessary, to show their impetuous readiness to
complement or surpass the efforts of the executive by an inspiring approach to the
definition or recognition of circumstances of human rights where appropriate or
feasible.475

Some Nigerians are confused as to what rights they are entitled to as citizens and
often confuse what their fundamental rights really are.

In Nigeria, citizens enjoy many rights but the inalienable fundamental rights of
citizens are statutorily protected by the Constitution of the Federal Republic of
Nigeria. Chapter IV of the Constitution lists out the basic Fundamental Human
Rights enjoyed by citizens of the country.

The Fundamental Rights of Nigerians under Chapter IV of the Constitution476 are as

follows:

(a) The Right to Life477

474
Ese Malami, ‘The Nigerian Constitutional Law with Fundamental Rights (Enforcement Procedure)
Rules 2009’ , 3rd Edition, Princeton Publishing Co. P. 151

475
Ahuruonye v. Ikonne(2015) ALL FWLR (Pt. 811) PAGE 1233 @ 1244 – 1245,Odogwu v. Attorney
General of the Federation (1996) Vol. 40/41 LRCN 1454; Nemi v. Attorney General, Lagos State
(1996) 6 NWLR (Pt. 452) 42

476
Section 33 – 46 of the 1999 Constitution of the Federal Republic of Nigeria.

477
Section 33 of the 1999 Constitution of the Federal Republic of Nigeria, Musa v. State (1993) 2
NWLR (Pt. 277), P.550 CA, Bello v. AG Oyo State (1986) 5, NWLR (Pt. 45) 828 SC, Adeniji v. State
(2000) 2 NWLR (Pt. 645) 354 CA, Okonko v. State (1998) 4 NWLR (Pt. 544) 142 CA, Kalu v. State
(1998) 13 NWLR (Pt. 583) 531 SC.

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Under the Constitution, every person has a right to life and no one shall be
intentionally deprived of his life. The Constitution, however, provides exceptions
where violation of this Right is acceptable:

Where the taking of the life is in execution of a sentence of a court in respect of a

criminal offence in which the person has been found guilty in Nigeria.478

Where the loss of life is as a result of the use of such force as is reasonably necessary
and in such circumstances as permitted by law.

(b) The Right to Dignity of Human Person479

Every person is entitled to the respect of his/her dignity of human person and no
person shall be subjected to torture or inhuman treatment, be held in slavery or
servitude or be required to perform forced or compulsory labour.480

In Joshua v. State481, the appellant argued before the Court of Appeal that the
mandatory death sentence imposed by the trial judge upon him is unconstitutional,
as it amounts amount arbitrary deprivation of life, inhuman and degrading
punishment contrary to section 33 and 34 of the Constitution of the Federal Republic
of Nigeria, 1999, respectively.

The Court held that there has been no specific pronouncement by our superior court
in respect of the death sentence being abolished as it is in other jurisdictions. The
position in Nigeria is that death sentence is a reality.

(c) Right to Personal Liberty482

Under the 1999 Constitution, every person shall be entitled to his personal liberty
and no person shall be deprived of such liberty except in special circumstances and
in accordance with a procedure permitted by law.483

478
Offence which attract death under Nigerian Criminal Laws include murder, treason and armed
robbery. See Bello v. AG Oyo State.
479
Section 34 of the 1999 Constitution of the Federal Republic of Nigeria, Musa v. State (1993) 2
NWLR (Pt. 277), P.550 CA
480
Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) 713CA
481
(2009) ALL FWLR (Pt. 475) 1626.
482
Section 35 of the 1999 Constitution of the Federal Republic of Nigeria, Muhammed v. Olawunmi
(1990) 2 NWLR (Pt. 133) 458 SC, COP v. Ogbolo (1989) 5 NWLR (Pt. 120) 130 CA, Bamaiyi v. State
(2001) 8 NWLR (Pt. 715) 270 SC
483
Section 35 (1) (a), (b), (c), (d), (e) and (f) of the constitution of the Federal Republic of Nigeria

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However, a person who is charged with an offence or who is detained in a lawful

custody awaiting trial shall not continue to be kept in such detention for a period
longer than the maximum period of imprisonment prescribed for the offence.484

In addition, such an accused can be granted bail pending the final determination of
the alleged offence. It is the right not to be subjected to imprisonment, arrest and
other physical coercion in any manner that does not have legal justification. Parts of
the rights statutorily protected under this section, are the rights to remain silent based
on any arrest or detention and avoid answering any question until after consultation
with a legal practitioner or any other person of his/her choice.485Right to be informed
in writing within twenty-four hours of the facts and grounds of arrest486 and the right
to be taken before a court of law within a reasonable time.487

(d) Right to Fair Hearing488

The Constitution of the Federal Republic of Nigeria guarantees a person the right to
fair hearing within a reasonable time by a court or other tribunal established by law
in determination of his/her civil rights and obligations including a question or
determination by or against any government or authority. The Constitution also
provides that the court or tribunal shall be constituted in a manner as to secure its
independence and impartiality in determining the said civil rights and obligations.
The Right to Fair Hearing is the cornerstone of justice.

(e) Right to Private and Family Life489

This guarantees and protects the right to the privacy of citizens, their homes,
correspondence, telephone conversations and telegraphic communications. This
right has been described as recognition of the saying that “a man’s home is his
castle”.

However, there have been instances of violation of this right, particularly cases of
police entering people’s homes in the course of arrest of a suspected criminal or
investigation of criminal matters without obtaining the proper search warrants.

(f) Right to Freedom of Thought, Conscience and Religion490

The Constitution provides for secularity in Nigeria, guaranteeing the peoples
entitlement to religious freedom including freedom to change religion or belief and
484
See the proviso to section 35(1)of the 1999 Constitution of the Federal Republic of Nigeria.
485
Section 35 (2) of 1999 Constitution
486
Section 35 (3) of 1999 Constitution
487
Section 35 (4) of 1999 Constitution
488
Section 36 of the 1999 Constitution
489
Section 37 of the 1999 Constitution
490
Section 38 of the 1999 Constitution

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manifest and propagate ones religion or belief in worship, teaching, practice and
observance.491

(g) Right to Freedom of Expression and the Press492

Every person shall be entitled to freedom of expression including freedom to hold
opinions and to receive and impart ideas and information without interference. The
fundamental Rights enshrined under section 39 of the 1999 constitution is not
absolute as it cannot validate any law that is reasonably justifiable in democratic
society “ in the interest of defence, public safety, public order, public morality or
public health.493

(h) Right to Peaceful Assembly and Association494

Every person shall be entitled to assemble freely and associate with other persons
and form or belong to any political party, trade union or any other association for
the protection of his interest.

Disruption of peaceful anti-government rallies by police is a violation of this right

to peaceful assembly as exhibited in the recent ENDSARS protest in Nigeria.

Section 40 of the Constitution of the Federal Republic of Nigeria, 1999, which

guarantees the right to freedom of association, is not absolute. Thus, the provisions
of sections 3 and 5 of the Trade Unions Act, Cap 437, Laws of the Federation of
Nigeria, 1990 are not inconsistence with the provision of the said section 40 of the
1999 Constitution”.495

(i) Right to Freedom of Movement496

Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside
in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused
entry or exit. In Minister of International Affairs v. Shugaba,497 the Court
considered the provisions of section 38 of the 1979 constitution (now section 41 of
1999 constitution as amended), and the Court held that the deportation order of 1980
is ultra vires and void and that the same constitute a violation of the applicant’s
fundamental right to personal liberty, privacy and freedom to move freely
throughout Nigeria.

491
Section 38 (1) of the 1999 Constitution
492
Section 39 of the 1999Constitution
493
Ukpabio v. N.E.V.C.R. (2008) 9 NWLR (Pt. 1092) 219.
494
Section 40 of the 1999 Constitution.
495
R.T.N.A.C.H.P.N. v. M & H.W.U.N [2008] 2 NWLR (PT. 1072) 575
496
Section 41 of 1999 Constitution
497
[1982] 3 NCLR 915

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(j) Right to Freedom from Discrimination498

Every citizen shall not be subjected to any form of discrimination, disability or
deprivation by reason of to his/her community, ethnic group, place of origin,
circumstances of birth, sex, religion or political opinion. In Asika v. Atuanya,499
the Court held that the provisions of section 42 and 43 of 1999 Constitution prohibits
against discrimination women in whatever dimension and it is a grundnorm that
could not be subjected to any custom especially where same is being vehemently
resisted as in this case by the appellants who are co-beneficiaries with the respondent
and another under the will of their late father.

(k) Right to Acquire and Own Immovable Property anywhere in Nigeria500and

Compulsory Acquisition of Property501
Every citizen of Nigeria shall have the right to acquire and own immovable property
anywhere in Nigeria.502 No moveable property or any interest in an immoveable
property shall be taken possession of compulsorily and no right over or interest in
any such property shall be acquired compulsorily in Nigeria except in the manner
and for the purposes prescribed by law. In ELF PET (Nig) Ltd v. Umah503 the
Court held that to acquire moveable or interest in any immovable property, prompt
payment of compensation must be made and that person claiming such
compensation as unlimited access to the Court of Law or Tribunal or body having
jurisdiction in that part of Nigeria.

(l) Restriction on and Derogation from Fundamental Rights

Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any
law that is reasonably justifiable in a democratic society:

(i) In the interest of defence, public safety, public order, public morality or
public health.

(ii) For the purpose of protecting the rights of and freedom of other persons.

498
Section 42 of 1999 Constitution
499
[2008] 17 NWLR (PT. 1117] 484
500
Section 43 of 1999 Constitution
501
Section 44 of 1999 Constitution
502
Asika v. Atuanya [2008] 17 NWLR (PT. 1117] 484
503
[2007] 1 NWLR (PT. 1014) 44

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2.0. T HE S C OPE A N D T HE P OW E R O F T H E C H I E F J US T I CE O F N I GE RI A
T O M A K E R U L E S O N F U N D AM E NT AL R I G HT (E N F OR CE M E NT
P R OC E D U R E ) R U L E S , 2009
As a result of the urgent needs to protect human rights, the constitution (both
the 1979 and the 1999) conferred power on Chief Justice of Nigeria to make
rules with respect to the practice and procedure of High Court for the purpose
of enforcement of fundamental rights. Under Section 46 (3) of the 1999
Constitution,504 it provides thus:

“The Chief Justice of Nigeria may make rules with respect to the
practice and procedure of High Court for the purpose of this
section.”

Based on the emergence of the FREP Rules 2009, fundamental rights

procedure Rules, is expected to be expeditious and “treated as an
emergency”505

2.1. O B J E C T I V E S A N D E M E R GE N CY N A T U RE O F F U ND AM E N T AL
R I G HT (E N F OR C E M E N T P R OCE DU RE ) R UL E S , 2009.

The FREP Rules, 2009 provide for the procedure to be followed by the applicant in
court in attaining the objectives through an emergency nature of securing the
enforcement of Fundamental Rights under chapter IV of the 1999 Constitution and
the African Charter on Human and People’s Right (Ratification and Enforcement)
Act.

The overriding objectives of the Rules at every stage of human rights action,
especially whenever the Court exercise any power given to it by the Rules, are
clearly spelt out by the Rules. The overriding objectives are captured in Sani V.
President, F. R. N506, by the Court of Appeal, especially with respect to section 3
(e) and (i-v) as follows:

“Section 3(e) (i-v) of the preamble to the Fundamental Right Enforcement

Procedure Rules, 2009, provides that the Court shall encourage and
welcome public interest litigations in the human rights field and no human
rights case may be dismissed or struck out for want of locus standi. In
particular, human rights activities, advocates or groups as well as any
nongovernmental organizations, may institute human rights application on

504
See similar provision under section 42(3) of 1979 Constitution
505
See Paragraph ‘G’ of the Preamble of FREP Rules, 2009.
506
[2016] All FWLR [Part 860] Page 1172 @ 1188

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behalf of any potential applicant. In human rights litigation, the applicants

may include any of the following:

(i) Anyone acting in his own interest

(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.
(v) Association acting in the interest of its members or other
individuals or groups.

Before the enactment of the new rules, the concept of locus standi had been
broadened to promote public interest litigation (PIL).”507

Furthermore, Judges hearing applications for securing the enforcement of

fundamental rights are duty bound to treat them with dispatch. It is particularly
important to note that the FREP Rules have made special provisions for a more
speedy enforcement of the right to personal liberty in order to ensure that no person
is put in any form of custody or detention without due process. Application seeking
to secure the liberty of any person restrained ought to take precedence over other
cases pending in court and same should be treated as an emergency.508

The judges are not only duty bound to treat fundamental actions as an emergency
alone, they can as well, where no specific amount is claimed; determine the amount
that will be justified for the victim of the breach. This is the view of Court of Appeal
fundamental rules along with section 35(6) of the 1999 Constitution. In his own
words, Per Agube JCA brilliantly stated as follows:

“By the provision of section 35(6) of the constitution of the Federal

Republic of Nigeria, 1999, if an applicant for enforcement of his
fundamental rights proves that he has unlawful arrested and
detained, he will be entitled to compensation and apology, where no
specific amount is claimed. Where a specific amount is claimed, it is
for the court to consider the claim and determine the amount that will
be justified for the victim of the breach.”509

507
See also Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189; Fawehinmi v. the President (2008) WRN
65; Nwankwo v. Ononeze – Madu (2009) All FWLR (Pt. 461) 995, (2009) 1 NWLR (Pt. 1123) 671
508
Section 3(g) of the Preamble to the FREP Rules, 2009.
509
Duruaku v. Nwoke (2016) ALL FWLR (PT. 815) 351 @ 403, PARA F – G.

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However, based on the current practice and delay by both counsels and the courts,
it is arguable that the scope, purpose and emergency principle of this FREP Rules,
2009, has been defeated.

3.0. C O M P A R I S M O F T HE L E G AL S T A T U S O F F UN DA M E NT AL R I G H T
(E N F OR CE M E N T P R OC E D U R E ) R UL E S , 1979 A N D F U ND AM E NT AL
R I G HT (E N F OR C E M E N T P R OC E DU RE ) R UL E S , 2009.

Just like the 1979 FREP Rules, the 2009 FREP Rules, have the same force as the
Constitution itself, it is submitted that the FREP Rules are higher than other laws in
the hierarchy of superiority of laws. In case of any inconsistency between the FREP
Rules and any other law, the former will prevail to the extent of such
inconsistency.510

To start with, the FREP Rules of 1979 has no more legal status as the FREP Rules,
2009 abrogated FREP Rules, 1979. Order 15(1) of FREP Rules, 2009 provides as
follows:

“The Fundamental Rights (Enforcement Procedure) Rules 1979 are hereby

abrogated”

However, pending Human Right suits commenced under the FREP Rules, 1979 will
not be defeated or struck out or dismissed for failure to comply with the FREP Rules,
2009 provided there is substantial compliance with the FREP Rules, 2009.

To appreciate the improvement on the enforcement of fundamental Rights in

Nigeria, there is need to compare the legal status of both the old Rules (FREP Rules,
1979) and the new Rules (FREP Rules, 2009) which are highlighted as follows:

3. 1. Public Interest Litigation and Locus Standi

Under the FREP Rules, 1979, it is the person whose fundamental has been, is being,
or likely to be violated that can challenge such violation. Order 1(2) of the FREP
Rules, 1979 provided thus:

“Any person who alleges that any of the fundamental rights provided for in
the constitution and to which is entitled, has been, is being, or likely to be

510
Abia State University, Uturu v. Chima Anyaibe(1996) 1 NWLR (Pt. 439) 646 at 660 – 661,
Babarinde v. Ogun State University (2001) I CHR 156, Samuel Adeyemi Adelakun v. Attorney-
General of Ogun State & 2 Ors NPILR 864 at 890-891, The Federal Republic of Nigeria v. Ifegwu
(2003) 45 WRN 27 at 69

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infringed may apply to the High Court in the State where the infringement
occurred or likely to occur for redress”

In other word, to invoke the jurisdiction of the High Court in a state for the protection
of any fundamental right guaranteed under chapter IV of the constitution the
applicant must be the actual person whose right has been breached.511

The FREP Rules, 2009 however stated clearly in the Preamble, the objectives and
the priority of Human Rights action especially in the area of public interest litigation
and no human right case shall be dismissed or struck out for want of locus standi.
Human rights activities, advocates or groups as well as any non-governmental
organizations, may institute human rights application on behalf of any potential
applicant. In human rights litigation, the applicants may include any of the
following:

i. Anyone acting in his own interest

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.
v. Association acting in the interest of its members or other individuals or
groups.

The public interest litigation in the human right field and the relevant applicants
were clearly spelt out under the overriding objectives of the FREP Rules, 2009,512
which was recently interpreted in the case of Sani v. President, F. R. N513,

3. 2. Commencement without Leave of Court

Under the 1979 FREP Rules, an applicant seeking to enforce a fundamental right is
mandated to first seek the leave of the High Court of the State where the
infringement as taken place or threatened.514 Failure to seek and obtain leave under

511
Olusola Oyegbemi v. Attorney General of the Federation (1982) 3 NCLR 895; Alhaji Shugaba
Abdulraham Darman v. Minister of Internal Affairs (1981) 2 NCLR 459, University of Ilorin v.
Oluwadare (2003) 3 NWLR (PT 806) 557, Governor of Ebonyi State v. Isuama (2003) 8 WRN 123;
(2002) 19 WRN 42.
512
See section 3 of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009
513
[2016] All FWLR [Part 860] Page 1172 @ 1188
514
WAEC v Akinkunmi (2002) 7 NWLR (Pt 766)

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the 1979 FREP Rules before commencing an action will automatically render the
action incompetent.515

Order 1 Rules 2(2) of the FREP Rules 1979 provided as follows:

“No application for an order enforcing or securing the enforcement within

that State of any such rights shall be made unless leave therefore as been
granted in accordance with this Rules”

Application for leave under the FREP Rules, 1979 is made Ex-Parte and the
Applicant was to establish a Prima facie case before the leave can be granted. The
said leave is usually granted at the discretion of the Court based on the circumstances
of each case.516 The Court has the power to set aside the leave already granted where
it is discovered that the leave was granted in error or without jurisdiction.517

However, going by the delay and all other legal antics been demonstrated by the
Respondent in frustrating the process of enforcing fundamental right not minding
the urgent nature of the issue involved, the FREP Rules, 2009 as clearly made
provision for commencement of an application for the enforcement of fundamental
right without the leave of the court.

Order 2 Rule 2 of the FREP Rules, 2009 provides as follows:

“An application for the enforcement of the Fundamental Right may be made
by any Originating Process accepted by the Court which shall, subject to the
provisions of the Rules, lie without leave of Court”.

Based on the above provision, the applicant does not need to go through the stress
of seeking and obtaining leave before the enforcement of his fundamental right. This
also breaches the unnecessary gap of the delay and challenges being faced before
obtaining the leave to commence a fundamental right suit.

3.3. Introduction of Written Addresses and Time limit for filing responses in
Fundamental Right Proceedings
The FREP Rules, 1979 did not provide for written addresses which are the succinct
argument in support of the grounds of the application518, rather the court listen to
515
Registered Trustees of the Faith Tabernacle Congregation Church of Nigeria & Ors v Abel Uche
Ikwechegh (2000) 1 WRN 134 at 140; (2000) 13 NWLR (PT 683) 1 at 8; (2001) CHR 423 at 432 it
was held:
516
Mudashiru Kokoro-Owo v. Lagos State Government (1998) 1 HRLRA 322 at 329
517
Anatogu v. Iweka 11 (1995) 6 NWLR (Pt. 399) 35
518
Order XII Rule (1) & (4) of the FREP Rules 2009.

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oral arguments519 which takes the time of the court and may likely cause unnecessary
delay and possible adjournment based on long submission of counsels.
In addition, there is no limitation as to time of filing response (Counter Affidavit
and Further Affidavit) to the Originating Application under the TREP Rules, 1979.
In practice, Counsels to Respondents have cultivated the habit of delaying the
response of delaying the proceedings deliberately. Even up to the period where the
Court was to deliver judgment, the respondents may choose not to appear or file
response despite the proof of service. At the point of rendering judgment, the
respondent may appear and sought for an adjournment within which to respond and
which may be difficult for the applicant to object since there is no provision in the
FREP Rules, 1979.

To correct these anomalies therefore, the FREP Rules, 2009, have made necessary
provisions to guide the proceedings for the enforcement of fundamental right. Order
2 Rule (5) (6) & (7) provide as follows:

“5. Every application shall be accompanied by a Written Address which shall be a

succinct argument in support of the grounds of the application.
6. 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.
7. The applicant may on being served with the Respondent’s Written Address.
File and serve an address on point of law within 5 days of being served, and
may accompany it with a further affidavit”.

In addition, while the FREP Rules, 1979, provided for 14 days for the hearing of the
motion or summons after the leave has been granted, Order 4 (1) of the FREP Rules,
2009, set out clearly that the application for enforcement shall be fixed for hearing
within 7 days from the date of filing (subject to the convenience of the court and
proof of service).

3.4. Service of court processes generally in Fundamental Right Proceedings

Although, under the FREP Rules, 1979, service of Court processes were provided
for520 but not in detail especially substituted service. In Dr. Beko Ransom Kuti v.
State Security service & Ors521 it was held:

519
Oral argument is also provided for in Order XII Rule (2) of the FREP Rules but same is restricted
to twenty minutes.
520
Order 2 Rule 2 (3) of the FREP Rules 1979.
521
(1995) FHCLR 397 @ 402

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“Thus, I seem to agree with Mr. Jacobs that the rule does not prescribe the
mode or manner of service of motion or originating summons on all the
persons directly affected. That being so, it is my considered opinion that the
rule does not exclude substituted service which may take different forms e.g.
by pasting at the last known address or working place of the person affected
or by posting to his last known address, by advertisement, by courier service
or even by delivery to some other person through whom the court thinks the
person affected can receive it .”

To clear the regular argument being raised by the respondents on issue of personal
service, the FREP Rules 2009 provide for other various mode or manner of service
of the originating Application. More importantly, service on the respondent’s agent
will amount to personal service on the respondent. The Rules provide as follows:

“The application must be served on all parties directly, so long as a service

duly affected on the respondent’s agent will amount to personal service on
the respondent.”522

Likewise, service of court order for the production of the applicant restrained by the
respondent(s)523, will also amount to personal service on the respondent(s), once the
said order is served on an officer in his office.524 Specifically, the Rules provide that
any other officer working with the Nigerian police, Nigerian Prison Authority, or
any public officer, can accept service on behalf of the named officer, superintendent,
or public officer to whom the order is directed.525 Such order of the court shall be a
sufficient warrant to the Officer in charge of a police station or any constable in
charge of the applicant or any other person responsible for the applicant’s detention,
for the production of the applicant in their custody.

Furthermore, where a party to be served is in service of any Ministry or Extra

Ministerial Department of Government or of a Local Government, the Court may
transmit the document to be served and a copy thereof to any senior officer of the
Department of Government in the Judicial Division or place where the party to the
served works or resides or of the local government in whose service the party to be
served is, and such senior officer or Local Government shall cause the same to be
served on proper party accordingly.526

522
Order V Rule 2 of FREP Rules 2009.
523
Order V Rule 4 of FREP Rules 2009
524
Order V Rule 3 of FREP Rules 2009
525
Order V Rule 5 of FREP Rules 2009
526
Order V Rule 8 of FREP Rules 2009

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However, where it appears to the court that personal service of the court’s process
will not be affected even without any attempt by the bailiff, the court may order
substituted service to be effected either527 -

a. By delivery of the document to an adult person at the usual or last known

place of the abode or business of the party to be served.528
b. By delivery of the document to some person being an agent of the party to
be served or to any other person, on it being prove that the document would
come to the knowledge of the party to be served through the agent or any
other person.529
c. By delivery of the document to any senior officer of any government agency
that has office both in the state where the breach occurred and head office
either in the Federal Capital Territory or elsewhere; will be considered as
sufficient service.530
d. By advertisement in the Federal Government Official Gazette or in some
newspaper circulating within the jurisdiction.531
e. By notice put up at the principal courthouse or some other place of public
resort in the judicial division where the proceeding in respect of which the
service is made or at the usual or last known place of abode or business of
the party to be served.532

To further show the distinct nature of the FREP Rules 2009, the Rules provide
that service of the application and other processes, notices, summons, Order and
documents or whatever document to be effected shall be done between the hours
of six in the morning and six in evening (6 a.m – 6p.m)533

To cap it all, the FREP Rules 2009, restrain the bailiff, sheriff or any other
officers of the court or person thereof from effecting service of the court process
on Sunday or Public holiday.534

3.5.Procedure for Raising an Objection in Fundamental Right Proceedings

Apart from locus standi, the respondent under the FREP Rules 1979, used to
raise series of objection challenging the jurisdiction of the Court purposely to
delay or frustrate the fundamental right proceedings. This objection could be the

527
Order V Rule 7 of FREP Rules 2009
528
Order V Rule 7(a) of FREP Rules 2009
529
Order V Rule 7(b) of FREP Rules 2009
530
Order V Rule 7(c ) of FREP Rules 2009
531
Order V Rule 7(d) of FREP Rules 2009
532
Order V Rule 7(e) of FREP Rules 2009
533
Order V Rule 10 of FREP Rules 2009
534
Order V Rule 11 of FREP Rules 2009

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basis of appeal to the Supreme Court leaving the substantive application

unattended to. To put an end to antics, the FREP Rules 2009 provide thus:

1. Where the Respondent is challenging the Court’s jurisdiction to hear

the application, he may apply to the Court for an order striking out
the suit or setting aside the proceedings.535
2. The respondent’s Notice of Preliminary Objection must be filed
along with the Counter Affidavit to the main application.536
3. Where the Respondent elects, not to file a counter affidavit to the
main application, the Court shall presume that the Respondent has
accepted the facts as presented by the Applicant.537
4. On the date of hearing, the preliminary objection shall be heard
along with the substantive application.538
5. The Court after hearing the application may make any of the
following orders:
a. Striking out the application for want of jurisdiction; or
b. Setting aside the service of the originating application.539
6. Where the Court does not decline jurisdiction, the Court shall go
ahead to give its Ruling on the substantive application.540

4.0 T HE L E G A L D I S S A B I L I T Y O F (F RE P R UL E S , 2009) I N C OV E RI N G
A L L V I OL A T I O N S O F R I G HT S I N N I GE R I A .

Having identified the most critical benefits of the FREP Rules, 2009, there is also
an urgent need to look at the disadvantages of the Rules for future amendment and
betterment of Human Rights enforcement in Nigeria.

The FREP Rules, 2009, also acknowledge that there may likely be situations for
which there is or appears to be no adequate provision in the Rules to cover all
instances of violation of human rights among which are as follows:

4.1. Constitutional Restrictions and derogation from the Fundamental

Rights in the interest of the State.
Going by the Common Law doctrine of necessity, the fundamental rights of a person
may be restricted, and or derogated from, in compelling circumstances and the

535
Order VIII Rule (1) of FREP Rules 2009
536
Order VIII Rule (2) of FREP Rules 2009
537
Order VIII Rule (3) of FREP Rules 2009
538
Order VIII Rule (4) of FREP Rules 2009
539
Order VIII Rule (5) of FREP Rules 2009
540
Order VIII Rule (6) of FREP Rules 2009

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interest of the state preferred for the greater good of society541 or for the necessity
of avoiding chaos in the State. Globally today, it is generally accepted that the
fundamental rights of a person can only be restricted under the due process of law
whether in term of peace or war, except as provided by the constitution.542
Therefore, the fundamental rights of a person may be restricted on the grounds
clearly provided by section 33(2), 34(2), 35(1) (a – f ) and (7), 36 (2) and (4), 39 (3),
40, 41(2), 44(2) and 6(6)(d), 143, 158, 188, 307, 308, 45 and 305.

4.2. Statutory Restrictions and the power of the court to remand in prison
custody without considering the person’s human rights.
Under various statutes, both Federal and the States, especially the administration of
Criminal Justice System, the law enforcement agencies are allowed to bring an
application on capital offences before a Magistrate for the remand of a person in
prison custody upon a reasonable suspicion or probable cause, pending the DPP’s
legal advice from the office of the Attorney General of the Federation or the State.543
Painfully is the fact that the Act or the Laws allow the Police to bring this application
for remand “ex-parte”544 and in Ogun State for instant, the magistrate has the power
to remand the suspect for sixty (60) days545 in the first instant, and where the advice
is yet to be rendered, the magistrate has the power to extend the remand order for
another 14 days twice546 before discharging the suspect.

4.3. Enforcement of Fundamental Rights by joint applicants.

In an application for the enforcement of fundamental rights, the applicants are as

follows547

Anyone acting in his own interest;

Anyone acting on behalf of another person;
Anyone acting as a member of, or in the interest of a group or class of persons;
Anyone acting in the public interest; and

541
Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) P. 1 SC.
542
Ese Malami, ‘The Nigerian Constitutional Law with Fundamental Rights (Enforcement
Procedure) Rules 2009’, 2015, 3rd Edition, Princeton Publishing Co. P. 520
543
See section 293 – 299 of the Administration of Criminal Justice Act, 2015, Section 264 - 267 of
the Administration of Criminal Justice Law of Lagos state, 2011, Section 306 – 312 of the
Administration of Criminal Justice Law of Ogun State, 2017.
544
See section 293 (2) of the Administration of Criminal Justice Act, 2015, Section 306(2) of the
Administration of Criminal Justice Law of Ogun State, 2017.
545
See section 309(1) of the Administration of Criminal Justice Law of Ogun State, 2017.
546
See Section 309 (5) and (6) of the Administration of Criminal Justice Law of Ogun State, 2017.
547
Order II Rule 3 FREP Rules 2009

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Association acting in the interest of his members or other individuals or groups.

Notwithstanding the above clear provisions on groups, it is trite law that a

fundamental right application cannot be jointly brought by two or more persons.
Those rights are personal in nature according to the appellate court.548

4.4. Failure on the part of the Courts to expeditiously treat fundamental

rights as an emergency and strictly follow the time limit in FREP Rules,
2009.
The FREP Rules, 2009, provide for time in the course of Fundamental rights
proceedings purposely to regulate the conduct of the parties and the court in other to
achieve the set out goal through an emergency nature of securing the enforcement
of Fundamental Rights under chapter IV of the 1999 Constitution and the African
Charter on Human and People’s Right (Ratification and Enforcement) Act.
However, the courts have allowed the parties to introduce all forms of technicalities
in frustrating the proceedings without any regard to the timing as stated in the FREP
Rules. Besides the parties, our courts have continued to threat fundamental rights
application as regular suits in terms of adjournment. I have personally witnessed an
adjournment of 4 months in fundamental right application even where the applicant
was still in the police detention.

4.5. Non compliance with the provision of FREP Rules, 2009, in initiating
fundamental rights proceedings

The general principle is that the Civil Procedure Rules of the court will be used to
commence an action where the substantive claim or relief is not based on abuse of
human rights recognized by chapter IV of the Constitution or African Charter on
Human and People’s Rights as indicated in the FREP Rules, 2009549 thus:

“Where in the course of any Human Rights proceedings, any situation arises
for which there is or appears to be no adequate provision in these Rules, the
Civil Procedure Rules of the court for the time being in force shall apply.”

Apart from the above provision, there are many instances where the alleged
fundamental right infraction falls under chapter IV of the Constitution or African
Charter on Human and People’s Rights, but the Applicant fails to comply with the
provisions of the Rules, same will be a ground to defeat the action under the Rules.

548
Udo v. Robson & Ors (2018) LPELR-45183 (CA)

549
Order XV Rule 4, Fundamental Rights (Enforcement Procedure) Rules, 2009.

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In D. S. Ltd v. Leo Oleka & Son Ltd,550 the Appellant raised a preliminary
objection to the competency of the appeal for being statute - barred. The trial court
dismissed the objection and granted the reliefs sought. Dissatisfied, the Appellant
appealed to the court of Appeal contending that the trial court erred by not striking
out respondent’s action, which was improperly commenced through Fundamental
Rights Enforcement Procedure and statute – barred. In resolving this issue, the court
brilliant submits as follows:

“The second part of issue 1 is whether the action was time barred. The
learned trial judge in his judgment at page 78 on whether or not the suit was
statute barred within Order 1, rule 3 (1) said the law is that non-compliance
with any provision of the Fundamental Rights (Enforcement Procedure)
Rules cannot defeat an application under the Rules. He relied on the case of
Federal Republic of Nigeria v. Ifeagbu (2003) FWLR (Pt. 167) 703, (2003)
15 NWLR (Pt. 842) 113 at 179.

It is obvious that the above passage is concerned with method of commencing

a fundamental rights action. It is a misconception for the learned trial judge
to interpret the case to mean non-compliance with any provision of
Fundamental Rights (Enforcement Procedure) Rules, cannot defeat an
action under the Rules. Of what use are the provisions then. There is a long
line of authorities where suits have been thrown out for failure to comply
with the Rules.

In addition, there are instances where the applicant’s rights fall under chapter IV of
the Constitution or African Charter on Human and People’s Rights, but the applicant
chooses or elects to enforce his rights via ordinary rules of practice of the High
Court, at the expense of the FREP Rules, such procedure is allowed in law provided
the applicant is restricted to the procedure he had chosen to bring the action. He
cannot have both, nor will the matter be considered under both the ordinary Writ of
Summons and the FREP Rules.

In the case of Ogor v. Emereonyeokwe 551 the respondent was the claimant in the
High Court of Rivers State where he took out a writ of summons, claiming that the
appellants on the instruction of the 1st appellant tortured, dehumanized and falsely
imprisoned him contrary to his rights guaranteed by African Charted on Human and
peoples’ Rights. He prayed the Court for declaratory reliefs that the appellants’ act
was unconstitutional, unlawful and amount to gross abuse of 1st appellant’s office,
order directing medical treatment of respondent, special and general damages. The

550
(2016) ALL FWLR (Pt. 814) 180
551
(2016) ALL FWLR (Pt. 841) 1540

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appellants filed a preliminary objection praying respondent’s action to be struck out

for want of competence and/or jurisdiction. The trial court dismissed the objection.
Dissatisfied, the appellants appealed to the court of appeal challenging the trial
court’s ruling. In dismissing the appeal552, the court of Appeal summarized the
principle as follows:

“This takes me to yet another level. That is, whether the plaintiff, whose
fundamental rights have been violated, can elect to enforce the said
rights only via the FREP Rules, or by via ordinary rules of practice of the
High Court? Ngwata JCA (as he then was) answers this question in the
Nigerian Union of Teachers v. Conference of Secondary School Teachers
(2006) 5 NWLR (Pt. 974) 590 in favour of election. In the judgment
(unanimously concurred by Amaizu JCA and Abba-Aji JCA) it was held
that the suit in which the plaintiff brings this action using the ordinary
writ of summons can not be defeated merely because the plaintiff has
elected to proceed under the ordinary writ of summons, and not under
rules. The action, in that case as in this case, was for remedy for a
tortuous act, which also was an infraction of Plaintiff’s fundamental
right. As the unanimous judgment held; where the alleged infraction of
the Plaintiff’s fundamental right is also a tortuous act or omission, the
Plaintiff may elect to proceed either under the FREP Rules, or proceed
under the procedure prescribed in the rules of the relevant High Court,
to seek his redress. This position is in my view, very reasonable. The
Plaintiff who has elected to proceed, either via the procedure of the
ordinary writ of summons prescribed by the relevant High Court (Civil
Procedure) Rules, or the FREP Rules, is restricted to the procedure he
had chosen to bring the action. He cannot have both, nor will the matter
be considered under both the ordinary Writ of Summons and the FREP
Rules. See N.U.T v. C.S.S.T. His suit will only be adjudged in accordance
with procedure he has elected to take. Thus as, St. Paul in the Bible,
would say: he who does not acknowledge the law shall be adjudged
without it. A Plaintiff who does not seek redress under FREP Rules
should therefore not have his suit adjudged under the FREP Rules.

The procedure under FREP Rules is more expeditious. The reason for this
is, as stated by Idigbe JSC, in Chike A. Akunnia v. Attorney-General,
Anambra State (1977) 5 SC 161 is:

552
Per EKO JCA @ Pp. 1556 – 1558, Paras G – H.

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‘There is no doubt that in cases of this nature relating to the

Fundamental Right of the citizens, it is very desirable that the matter
be dealt with expeditiously and, where possible, procedures which by
their nature are cumbersome and prone to delay should be avoided.
This is the raison d’etre for the special treatment given to the subject
of fundamental rights and enforcement thereof in the Constitution (see
Aoko v. Fagbemi and Anor (1961) 1 All NLR 400 at 403)”

This, however, is not to say that where the alleged fundamental right
infraction is also a tort at common law, the victim cannot elect to
proceed for redress using the more cumbersome procedure or ordinary
writ of summons under the State High Court (Civil Procedure) Rules,
where the relevant High Court has jurisdiction by virtue of section 272
of the Constitution.”

4.6. Legal disability of economic rights recognized by FREP Rules and

African Charter.
Clearly, Order II Rule 1 FREP Rules, recognizes the enforcement of African Charter
which provides as follows:

“Any person who alleges that any of the Fundamental Rights provided for in
the Constitution or African Charter on Human and Peoples Rights
(Ratification and Enforcement) Act and to which he is entitled, has been, is
being, or is likely to be infringed, may apply to Court in the State where the
infringement occurs or is likely to occur, for redress:
Provided that where the infringement occurs in a State which has no Division
of the Federal High Court, the Division of the Federal High Court
administratively responsible for the State shall have jurisdiction.”

However, despite the above provision, Nigerian Courts do not have the legal
will to Implement economic right and other rights recognized by the charter based
on justiciability principle under chapter II of the 1999 Constitution.

It must be noted that the Nigerian Government has ratified the African
Charter on Human and Peoples Rights, and also enacted the treaty into the municipal
law. Thus, by virtue of the African Charter on Human and Peoples Rights553, the
provisions of the Charter have force of law in Nigeria. Specifically, section 1 of the
Act provides as follows:

553
(Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 2004

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“As from the commencement of this Act, the provisions of the African
Charter on Human and Peoples’ Right which are set out in the schedule to
this act shall, subject as hereunder provided, have force of law in Nigeria
and shall be given full recognition and effect and be applied by all
authorities and exercising legislative, executive and judicial powers in
Nigeria”.

On the superiority of the African Charter in the hierarchy of superiority of

laws in Nigeria Musdapha J.C.A (as he then was) held in Chief Fawehinmi v.
General Abacha554 that:

”The member countries – parties to the protocol – recognized that the

fundamental human rights stem from the attributes of human beings which
justify their international protection and accordingly, by the promulgation
of Cap 10, the Nigerian State attempted to fulfill its obligation to which the
nation voluntarily entered and agreed to be bound. The arrest and detention
of the appellant on the facts adduced clearly breached the provisions of the
Charter and can be enforced under the provisions of the Charter. The
contracting States are bound to establish some machinery for the effective
protection of the terms of the Charter and when the local procedure is
exhausted or when delay will be occasioned, the matter will be taken to the
International Commission. All these indicate that the provisions of the
Charter are in a class of their own and do not fall within the classification
of the hierarchy of laws in Nigeria in order of superiority as enunciated in
Labiyi v. Anretiola (1992) 8 NWLR (PT 258) 139. See Equal Opportunity
Commission and Anor. V. Sec. for State for Emplo. (1994) 1 All ER 910. See
also Ogugu and Oshevire cases (supra)”.

The lack of legal will by our courts have made activists or civil rights
Organization like Socio-Economic Rights and Accountability Project (SERAP) to
approach ECOWAS Court for the enforcement of these rights. One significant case,
which affects the Nigerian Government, is the case of right to education decided by
the ECOWAS Court initiated by Socio-Economic Rights and Accountability Project
(SERAP).

In SERAP v. Nigeria555, the ECOWAS Court considered whether it had the

jurisdiction to adjudicate a claim involving the right to education under the African
Charter, even if such a right was arguably non-justiciable in domestic constitutional

554
(1996) 4 NWLR (PT 475) 710
555
Suit No. ECW/CCJ/APP/0808

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or statutory law. The complainant initiated the case due to lack of adequate
implementation of Nigeria's Basic Education Act and Child's Rights Act of 2004.
The ruling dealt in detail with the issue of substantive jurisdiction, which involves
the issue of justiciability, and the issue of whether the complainant has the legal right
to initiate a lawsuit. On these issues, Nigeria argued that the Court lacked
jurisdiction to hear the case because it dealt with domestic laws and policy, which
are not within the subject matter jurisdiction of the Court. Nigeria also argued that
the educational objective in the Constitution of Nigeria is non-justiciable and that
SERAP lacked standing since these laws did not directly affect it. The Court
dismissed all of these arguments.
On the issue of justiciable rights and substantive jurisdiction, the Court noted
that a violation of the right to education under Article 17 of the ACHPR was alleged
by the claimants and that, relying on Article 9(4) of the Supplementary Protocol to
the treaty establishing the Court and Article 4(g) of the Revised Treaty of ECOWAS,
"it is well established that the rights guaranteed by the African Charter are justiciable
before this Court." Article 9(4) of the Supplementary Protocol grants the Court
jurisdiction to determine cases of violations of human rights in Member States of
ECOWAS while Article 4(g) of the Revised Treaty of ECOWAS incorporated the
African Charter on Human and Peoples' Rights into that treaty. In coming to its
ruling, the Court dismissed the Government's contention that education is "a mere
directive policy of the government and not a legal entitlement of the citizens,"
concluding that "the contention of the Government that the right to education is not
justiciable as it falls within the directive principles of state policy cannot hold." The
Court noted a distinction between the recognition of education within the domestic
legal framework of Nigeria and the human right to education in the ACHPR to which
Nigeria is a State Party. It went on to say that it "clearly has jurisdiction to adjudicate
on applications concerning the violation of human rights that occur in Member
States of ECOWAS" and that it "has jurisdiction over human rights enshrined in the
African Charter and the fact that these rights are domesticated in the municipal law
of Nigeria cannot oust the jurisdiction of the Court."
In holding that SERAP did indeed have standing, the Court cited the doctrine
of action popularis that allows any person or entity to challenge a violation of a
public right. Finally, the Court, in part relying on comparative jurisprudence from
Bangladesh, India, Ireland, Pakistan, the United Kingdom, the United States, and
elsewhere, added that "public international law in general, which is by and large in
favour of promoting human rights and limiting the impediments against such a
promotion, lends credence to the view that in public interest litigation, the plaintiff
need not show that he has suffered any personal injury or has a special interest that
needs to be protected to have standing." Rather, the Court stated, the "plaintiff must
establish that there is a public right which is worthy of protection which has been
allegedly breached and that the matter in question is justiciable.

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On the consideration of the substantive rights, the Court sees merit in the
complainant's arguments on the right to education protected by the African Charter.

5.0. C O N C L U S I ON A N D R E C OM M E N DA T I ON

It is apparent from the above discussion that the FREP Rules, 2009, are novel,
courageous and encouraging in many respects. Without doubt, the new Rules
exhibited the great and commendable attempt by the judiciary in ensuring that
human rights are truly protected in Nigeria. However, there are novel technical
challenges, which still hinder the objectives of the FREP Rules, and these may
necessitate continuous amendment of the provisions of the Rules that militated
against access to justice by victims of fundamental right abuses.

Besides, mere amendment is not sufficient to ensure maximum protection of

Fundamental rights: the Judiciary, the Executive and the citizenry must be held
accountable and be custodian of rights as enshrined in the Constitution. The
judiciary through the bar, the bench and advocacy groups are key to this constant
struggle for protection and enforcement of inalienable human rights.556

Not minding the novel provisions as observe above, lawyers, human rights activists
and advocates as well as the bench are urged to appreciate the fundamental
objectives Rules and be committed to them to avoid "a situation where an applicant
will not have any Court of law to seek redress for the violation of his fundamental
right which is definitely cannot be the intendment of the law makers in view of the
common law principle that where there is a wrong there must be a remedy."557

In addition, our courts are enjoined to continue to give liberal interpretation to the
FREP Rules in area of objections on the enforcement of Fundamental Human Rights
in court especially on joint or group applications purposely to free Nigerian society
from aggressive Human Rights abuse.

Furthermore, the Rules in its Preamble enjoin the courts to respect the provisions of
chapter IV of the 1999 Constitution, the African Charter and all international

556
Challenges In Enforcement Of Fundamental Rights In Nigeria by PUNUKA Attorneys & Solicitors,
accessed on line, on 9th Nov. 2020.

557
See, Iheme v. Chief Of Defence Staff & Ors (2000) NWLR (pt.660) p.247

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conventions and treaties, notwithstanding the requirement of domestication in

section 12(2) of the 1999 Constitution.

In achieving access to justice on violation of rights, the legislature must also rise up
in amending provisions of the constitution and relevant Act of parliament, which
undermine the rights of the citizens including strange Ex-parte that allows court to
remand for two-three months on holding charge.

To also achieve the objectives of the FREP Rules, as stated in the Preamble,
including the socio-economic rights which are the aspirations of the majority of the
people in Nigeria, there is a practical need for constitutional reform, including the
amendment of the provisions of sections 6(6)(c) which oust the judicial power in
Nigeria to the enforcement of the provisions of Fundamental Objectives and
Directive Principles of State Policy set out in chapter II of the Constitution, since
the constitution is supreme and FREP Rules cannot supersede the constitution.
Nigerians must rather restructure their constitutional framework in such a way that
it will not only promote, but give real effect to the truly enforcement of Fundamental
rights.

Apart from justiciability of the socio-economic rights, the government must design
a functional social security system to take care of the poor, the illiterate, the
uninformed, the vulnerable, the incarcerated and the unrepresented.

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L E G A L A N A L Y S I S O F T HE C OR RE C T I ON A L S E RV I CE S A CT I N
N I GE RI A
BY

S. A. Basiru*

A B S T RA CT
This paper is an exposition on the Correctional Services Act, (CSA) 2019
which regulates the administration of Correctional Centres (formerly
known as prisons Services) in Nigeria. The paper analyses the
theoretical and/or jurisprudential foundation for nature of custodial
and non-custodial services introduced under the Act. The paper makes
important and far-reaching observations on the imperatives of having
standard custodial centres that support and empower the inmates as
well as facilitate the speedy disposal of cases of awaiting trial
prisoners. It further examines non-custodial services such as
community service, parole, probation, restorative justice viz-a-viz
other legislations. The paper identifies the possible challenges of
implementation and concludes that if the CSA is properly
implemented, the administration of criminal justice system in Nigeria
will be better enhanced.

Key Words: Awaiting trial prisoner (ATP); Correctional Services; Community

Service, Custodial Centres, Inmates, Parole, Probation, Restorative Justice.

*LL.B. LL.M, Ph.D, (University of Lagos). He is a distinguished legal scholar and a Senator of the
Federal Republic of Nigeria. Mobile number +2348034753343.Email; ajibolabasiru@hotmail.com.
Key research area- Secured Finance Transaction, Property Law, Companies securities and General
Corporate Practice.

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1.0 I NT R O D U C T I O N
The Correctional Services Act, 2019 (CSA) is the law regulating the administration
of prisons, now referred to as Correction Centres in Nigeria. Prior to the enactment
of the CSA, the administration of Correction Centres was regulated by the Prisons
Act,558 which among others basically provided for ‘the administration of prisons and
other matters ancillary thereto.’ As part of a broader national initiative of prison
reform aimed at overcoming the problems of over congestion, inadequate funding,
inadequacy of correctional and rehabilitative facilities in the Nigerian Prisons
amongst others. The CSA was enacted in 2019 as the legal framework to address the
challenges being experienced with the implementation of the then Prisons Act. The
CSA repealed the Prisons Acts, changed the name from Nigeria Prisons Service to
Nigerian Correctional Service and made provisions for the administration of both
the Custodial Correctional Centres and other Non-Custodial Measures.
This paper will therefore examine the provisions of the CSA, highlighting areas of
reform and improvement over the repealed legislation (Prisons Act). The paper will
also look at the possible challenges in the implementation of the new Act and then
make recommendations for reforms.

2.0 MEANING AND C ON C E PT S OF C O RRE CT I O NAL S E R VI CE S IN

N I GE R I A
A prison basically is a facility in which people are legally held as a punishment for
crimes committed559 or while awaiting trial for a crime accused of committing.560
Black’s Law Dictionary defined prison as “a state or federal facility of confinement

558
CAP P29 Laws of the Federation of Nigeria 2004.

559
For instance, in Adesina v. The People of Lagos State [2019] 8 NWLR (Pt. 1673) 125 S.C, the
accused person was charged with the offence of manslaughter contrary to Section 317 of
the Criminal Code Law, Cap. 17 Laws of Lagos State, 2003, similar to Section 317 of the
Criminal Code Act was convicted and sentenced to 14 years’ imprisonment.

560
According to Encyclopædia Britannica (Available online at:
https://www.britannica.com/topic/prison [last assessed on 30/08/2019], ‘the holding of
accused persons awaiting trial remains an important function of contemporary prisons, and
in some countries such persons constitute the majority of the prison population.’ For
instance, a Chief Magistrates’ Court in Ebute Metta, Lagos State, ordered four policemen
who killed two suspected robbers in Iba axis of the state be remanded in prison pending legal
advice. See: https://punchng.com/court-remands-four-sars-operatives-for-allegedly-killing-
phone-thieves/; [last assessed on 30/08/2019].

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for convicted criminals.”561 The repealed Prisons Act on the establishment and
classification of prisons provided:
(1) The Minister may by order in the Federal Gazette, declare any
building or place in Nigeria to be a prison and by the same or a
subsequent order specify the area for which the prison is established.
(2) Every prison shall include-
(a) the grounds and buildings within the prison enclosure and
(b) any lock-up house for the temporary detention or custody of
prisoners newly apprehended or under remand which is declared by
the Minister by order in the Federal Gazette to be part of the prison.
(3) Subject to subsection (4) of this section, every prison shall be a
prison for the imprisonment of prisoners of every description.
(4) The Minister may for effecting the separation of classes of
prisoners or for the training of any class of prisoner or for any other
purpose, by order in the Federal Gazette appropriate any prison or
part of a prison to particular classes of prisoners; and any prisoner
of the class to which any prison or part of a prison has been
appropriated may lawfully be conveyed thereto and imprisoned
therein, whether or not the warrant or order for his imprisonment
has been issued by a court having jurisdiction in the place where the
prison is situated.562
No doubt, prisons in Nigeria forms part of the administration of criminal justice
system as it is responsible for taking into “lawful custody all those certified to be so
kept by courts of competent jurisdiction.”563 It is also responsible for producing
suspects in courts as and when due; identify the causes of their anti-social
dispositions; set in motion mechanisms for their treatment and training for eventual
reintegration into society as normal law abiding citizens on discharge; and
administer Prisons Farms and Industries for this purpose and in the process generate
revenue for the government.564
However, the emphasis of the Prisons Service unlike Correctional Service, was on
custodial - where convicts are confined to cells and forced to live as a punishment
for crimes committed rather than on correctional, rehabilitation and reintegration

561
A. G., Bryan (ed.), Black’s Law Dictionary (9th edn, West Group, St. Paul, Minn., 2004) p. 1314.

562
s.2.
563
https://www.prisons.gov.ng/mission_vision [last assessed on 30/08/2019].

564
Ibid.

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with no provision for non-custodial service. Pursuant to the CSA, the Nigerian
Correctional Service is now comprised of two branches - custodial (custody and
control of persons imprisoned in safe, secure and good conditions as well as
conveying of inmates in motorised formation565 to and from courts) and non-
custodial service (management of non-custodial measures such community service,
probation, parole, etc.). 566
3.0 C US T O D I A L S E R V I C E
Custodial Service is the aspect of the Nigerian Correctional Service that administers
or supervises individuals or persons remanded in a correctional centre. A
correctional centre is a “prison or any centre that serves as a place for detention,
imprisonment or incarceration aimed at promoting a reformation, rehabilitation and
reintegration of inmates.”567 By section 9(1) of the CSA, the Minister568 may, by
order in a Federal Government Gazette
(a) declare any public building, with requisite facilities in an
appropriate location within Nigeria, to be a Custodial Centre; and
(b) specify the area. And the landmass for which the Centre is
established.
Provided that every building so declared as a Custodial Centre,
sleeping accommodation shall meet. All requirements of health, with
consideration given, among other things, to adequate floor space,
water and sanitation amenities, lighting and ventilation.
The CSA further provides that corrections shall be the primary goal of the Nigerian
Correctional Service569 and stipulate the function of the Custodial Service as
follows:
(a) taking custody of all persons legally interned;
(b) providing safe, secure and humane custody for inmates;
(c) conveying remand persons to and from courts in motorised formations;
(d) identifying the existence and causes of anti-social behaviours of inmates;
(e) conducting risk and needs assessment aimed at developing appropriate
correctional treatment methods for reformation, rehabilitation and
reintegration;

565
Motorized formation is defined to include vehicles to convey inmates, escort officers, armed
squad personnel and back-up vehicles. See s.46.
566
See s.1 of CSA makes provision for the establishment of the Nigerian Correctional Service
which provides custodial and non-custodial services.
567
See s.46 of CSA.
568
Refers to the Minister responsible for the Nigerian Correctional Service. See s.46 of CSA.
569
s.10. of CSA.

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(f) implementing reformation and rehabilitation programmes to enhance the

reintegration of inmates back into the society;
(g) initiating behaviour modification in inmates through the provision of medical,
psychological, spiritual and counselling services for all offenders including
violent extremists;
(h) empowering inmates through the deployment of educational and vocational
skills training programmes, and facilitating incentives and income generation
through Custodial Centre farms and industries;
(i) administering borstal and related institution;
(j) providing support to facilitate the speedy disposal of cases of person awaiting
trial; and
(k) performing other functions as may be required to further the general goals and
functions of the service.
3.1. Analysis of the Custodial Service of the Correctional Service
3.1.1 Provision of Standard Custodial Centres
A Custodial Centre is a place where “individuals sentenced by the court requiring
imprisonment are kept or those remanded in custody by the order of the court are
kept.”570 A novel provision of the CSA is that which imposes a duty on the
Correctional Service to provide safe, safe and humane condition for inmates with
requisite health facilities.571 This is targeted at eliminating the challenges of
overcrowding572 and poor hygienic conditions of the Custodial Centres. To give
effect to this provision, the CSA requires a State Controller (officer in charge of a
State Command of the Correctional Service) in the event that a Custodial Centre has
exceeded it capacity to notify within a period not exceeding one week, the Chief
Judge, Attorney-General, Prerogative of Mercy Committee, State Criminal Justice
Committee and other relevant bodies in the state.573 On receipt of the notification,

570
See s.46 of CSA. By the wordings of the Act, it may be used interchangeably with ‘custodial
facility’ or ‘Correctional Centre’.
571
By requisite health facilities, the CSA refers to sanitary installations adequate to enable every
inmate to comply with the needs of nature when necessary and in a clean and decent
manner, adequate bathing and shower installations shall be provided so that every inmate
maybe enabled and required to bath or shower as frequently as necessary for health and
cleanliness, and drinking water shall be available to every inmate whenever the. Inmate
needs it. See s.46.
572
For instance, the March 2019 edition of the Lagos State Criminal Information System
revealed that though the five prisons in Lagos State have a combined holding capacity of
4,087, they were holding 9,044 inmates as of March this year. See:
https://punchng.com/praises-concerns-for-new-prison-law/ [last assessed on 31/08/2019].
573
s.12(4) of CSA. In respect of the Federal Capital Territory, the Controller shall also notify the
Attorney-General of the Federation and the Chief Judge of the Federal Capital Territory.

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the aforementioned bodies must within three months take necessary steps to rectify
the overcrowding.574
The CSA goes further to provide that without prejudice to the notification, a State
Controller in conjunction with the Correctional Centre Superintendent575 shall have
the powers to reject intake of inmates where it is apparent that the Correctional
Centre in question is filled to capacity.576 To ensure total compliance, Custodial
Centre Superintendent who fails to notify the necessary bodies of that the centre has
exceeded it capacity or continues to accept inmates is liable to be sanctioned.577
In guaranteeing the physical safety of inmates and their wellbeing, the CSA provides
that the Correctional Service shall take adequate steps to ensure the prevention of
torture; prevention of inhuman and degrading treatment against inmates; prevention
of sexual and non-sexual violence and bullying; and effective procedure for the
prevention, identification and early warning signs, early detection of occurrence,
punishment of perpetrators and protection and treatment of affected victims.578 In
addition, no inmates shall be held in slavery or servitude (such as forced labour,
bondage imposed, or the involuntary subjection of one to another or others579), and
labour carried out by inmates shall neither be of an afflictive nature (that is
circumstance which causes grievous physical or mental suffering, pain or distress580)
nor for the personal or private benefit of any correctional officer.581
For security of the Custodial Centres, monitoring devices to protect, control and
safeguard correctional activities, including observatory towers, double perimeter
walls, close circuit television, body scanner, e-monitoring devises, electrically
activated alarm systems and instrument of restraint shall be provided.582 In addition,
the Correctional Service shall establish and maintain a fully equipped armed squads’
unit, intelligence and investigation unit to enhance security, surveillance,
monitoring, intelligence gathering and protection.583
3.1.2 Empowerment of Inmates
As noted earlier, the primary goal of the Correctional Service is correctional with
emphasis towards rehabilitation and readmitting inmates to society upon the

574
s.12(7).
575
The Custodial Officer in charge of the Custodial Centre.
576
s.12(8) of the CSA.
577
s.12(11) & (12) of the CSA.
578
s.14(2) of CSA.
579
See s.46 of CSA.
580
ibid.
581
s.15(1) of CSA.
582
s.28(1) of CSA.
583
s.28(2) of CSA.

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completion of their terms of imprisonment. And to actualize the goal of

rehabilitation and reformation of inmates, the CSA provides that the functions of the
Custodial Centres shall include ‘’empowering inmates through the deployment of
educational and vocational skills training programmes, and facilitating incentives
and income generation through Custodial Centre farms and industries.’ To give
effect to the empowerment of inmates, s.14(1) of the CSA provide that the
Correctional Service “shall provide opportunities for education, vocational training
as well as training in modern farming techniques and animal husbandry for
inmates.” In furtherance of this, the Correctional Service is charged with
establishing and running designated Custodial Centres, industrial centres equipped
with modern facilities for the enhancement of vocational skills training for inmates
aimed at facilitating their reintegration into society.584
It must be said that the provisions of the CSA as it relates to empowerment of
inmates is very commendable and encouraging for a number of reasons. First,
inmates (including those awaiting trial) will be able to undergo training in multiple
vocations such as fashion design, information and computer technology (ICT),
agriculture, technology acquisition, catering, and many other vocational skills.
Secondly, in a bid to develop entrepreneurship, it provides that the industrial centres
in the designated Custodial Centres be “administered to encourage generation of
funds to aid the earning scheme for inmates as well as aftercare and other support
services towards their rehabilitation.”585
To this end, the Controller-General, who has general superintendence of the
Correctional Service is statutorily empowered to ‘approve the sharing of revenue
due to the Correctional Service from any enterprise provided that one-third shall be
set aside for the inmates participating in the activity for sustainability of the
enterprise and such monies shall be paid into the Consolidated Revenue Fund of the
Federation.’586 Thirdly, the Correctional Service may recommend the issuance of
certificates of good behaviour upon discharge to inmates who demonstrate good
conduct, including those who have acquired training through formal and informal
education aimed at facilitating their reintegration.587 What is more, the Certificate is

584
s.14(2) of CSA.
585
s.14(3) of CSA.
586
s.14(4) of CSA.
587
s.14(5) of CSA.

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issued by the Board588 on the recommendation of the Controller-General,589 and any

person issued with the certificate of good behaviour shall not be ‘discriminated
against on grounds of his/her custodial sentence.’590
3.1.3 Facilitate the speedy disposal of cases of person awaiting trial
One of the major problems of the prisons system in Nigeria is that it is dominated
by awaiting trial prisoners (ATPs) to the extent that Nigeria is ranked as having one
of the highest excessive pretrial detention rates. A Human Rights Watch Prison
Project’s commentary noted:
In numerous countries -- including Bangladesh, Chad, the
Dominican Republic, Ecuador, El Salvador, Guatemala,
Haiti, Honduras, India, Mali, Nigeria, Pakistan, Paraguay,
Peru, Rwanda, Uganda, Uruguay and Venezuela --
unsentenced prisoners make up the majority of the prison
population. Such detainees may in many instances be held
for years before being judged not guilty of the crime with
which they were charged. They may even be imprisoned
for periods longer than the sentences they would have
served had they been found guilty. This state of affairs not
only violates fundamental human rights norms, it
contributes significantly to prison overcrowding, a
problem that is itself at the root of numerous additional
abuses.591
Orjiakor, et. al. in a seminal work titled, Prolonged incarceration and prisoners’
wellbeing: livid experiences of awaiting trial/pre-trial/remand prisoners in
Nigeria,592 observed that ATPs are represented in prisons globally, and may stay for
long periods in detention. However, in respect of Nigeria, they stated that ‘Nigerian
prison system is notorious for the overwhelming number of ATPs held within it,’
concisely captured the situation thus:

588
The Board, though not defined in the Act refers to the Civil Defence, Fire, Immigration and
Prisons Services Board (CDFIPB). The CDFIPB was established by the Customs Immigration
and Prisons Services Board Decree No. 14 of July 11, 1986. For more information about the
CDFIPB, visit: http://www.cdfipb.gov.ng/ [last assessed on 01/09/2019].

589
s.14(7) of CSA.
590
s.14(6) of CSA.
591
https://www.hrw.org/legacy/advocacy/prisons/pretrial.htm [last assessed on 31/08/2019].
592
Int J Qual Stud Health Well-being. 2017; 12(1): 1395677; available online at:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5678456/ [last assessed on 31/08/2019].

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As at March, 2017, the World Prison Brief (2017) reports

that 68, 259 persons were reportedly held in 240 facilities
with an official capacity of 50,153—a 125% occupancy
rate, however, some reports put occupancy rates at 800%.
Female prisoners make up about 2% of prisoners and
another 2% are juvenile offenders; an estimated 67.9–77%
of inmates in Nigerian prisons are classified as ATPs.
Prison conditions are deplorable with inadequate,
degrading infrastructure. Overcrowding is a common issue
of concern across facilities and so is food and water
shortages, inadequate medical supplies, inhumane
treatments and extortions have also been reported.
Efforts by the federal and state government authorities to
reduce the proportion of inmates with ATP status and
improve prison conditions are reported in the media but
improvements are yet to be seen. In many cases ATPs stay
years beyond the 2–3 months ceiling fixed by the 1999
Nigerian Constitution; thus, a breach of human rights is
underscored. If a detained person finally receives court
hearing and subsequently sentenced to prison, the years
served awaiting trial is normally counted as time already
served. Again, the Nigerian constitution provides that
persons detained unlawfully be compensated and publicly
apologized to upon release. However, compensations and
apologies are rarely observed.
While the legality or illegality of detention of persons awaiting trial is a subject for
another discussion, a report by Mr Rokofyllos noted that “despite the fact that the
detention of persons pending trial may be described as provisional, it can give rise
to irreversible or even irreparable damage, especially for prisoners who, having
being tried, are found to be innocent or are discharged.”593 He listed consequences
associated with detention awaiting trial to include:
i. loss of reputation of the unconvicted prisoner and sometimes even of persons
closely connected to him or her;
ii. the severing of family ties;
iii. the loss of work, company insolvency or the jeopardising of a career;
iv. the undermining of the prisoner's health and mental balance.”594

593
http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref-
ViewHTML.asp?FileID=8093&lang=en [last assessed on 31/08/2019].
594
Ibid.

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While it is expected that one of the major objects of the CSA will be providing
support to facilitate the speedy disposal of cases of person awaiting trial, the problem
is not the fault of the prisons alone. Our court are overloaded with cases of
unimaginable proportions and to be able to cope with the amount of criminal cases
due for trial will require an overhaul of the entire criminal justice system.
Not taking anything away from the provisions of CSA as regards providing support
to facilitate the speedy disposal of cases of persons awaiting trial, having it
entrenched in a statute is one step in the right direction. In achieving this objective,
the CSA provides that the Correctional Service in compliance with the requirements
for efficient management of the criminal justice system undertake to liaise with
heads of Justice Institution and relevant agencies to review and eradicate causes of
high number of pre-trial detainees and develop effective mechanisms to enhance
speedy trial and resolution of such cases.595 In addition, the service is to provide
returns and other necessary information to relevant bodies regarding persons
awaiting trial in Correctional Centre.596
The question of overcrowding of Correctional Centre by ATPs has also been
addressed by the new Act. The State Controller shall issue early warning sign to the
authorities in the state which include the Chief Judge, Attorney-General, law
enforcement and prosecutory agencies, Administration of Criminal Justice
Monitoring Committee, Prerogative of Mercy Committee, and other relevant bodies
that there is overcrowding in the Correction Centre. Upon receipt of the notification,
the State Controller shall activate the procedure for refusal to admit awaiting trial
persons to its Custodial Centre where the:
(a) the heads of the relevant agencies notified fail to take necessary steps to
address the situation and concerns raised by the Custodial Centre authority;
(b) a reasonable time not exceeding three months has elapsed since the
notification was issued by the Custodial Centre’s authority; and
(c) considerable steps shall have been taken to avert the activation of the refusal
procedure.
In guaranteeing the right to speedy trial, the CSA is fulfilling a constitutional right
that any person charged with a criminal offence is entitled to a fair hearing in public
within a reasonable time by a court or tribunal597 because justice delayed is justice
denied. The constitutional guarantee of speedy trial is intended to ensure that
accused persons are not subjected to unreasonably lengthy confinement before trial.

595
s.18(1)(a) of CSA.
596
s.18(1)(b) of CSA.
597
s.36(4) of the Constitution of the Federal Republic of Nigeria, 1999 Constitution (as
Amended)

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Moreover, if any practice offends any provision of the constitution, it ought to be

done away with.598
3.1.4 Implementing Reformation and Rehabilitation Programmes
One of the main challenges in the criminal justice system is the rehabilitation of
prisoners who will be reintegrated into society after their release from the prison.
Expectedly, attention is given to the rehabilitation that will enhance reintegration of
former prisoners into society on the completion of their terms of imprisonment. On
rehabilitation of inmates, the CSA imposes three related functions on the
Correctional Service viz:
i. conducting risk and needs assessment aimed at developing appropriate
correctional treatment methods for reformation, rehabilitation and
reintegration;
ii. implementing reformation and rehabilitation programmes; and
iii. initiating behaviour modification in inmates through the provision of medical,
psychological, spiritual and counselling services for all offenders including
violent extremists.
Reforming and rehabilitating of convicts according to Griffiths, et. al. involves
“interventions, programs and services designed to assist prisoners to live law-
abiding lives in the community following their release.”599 It is all encompassing
and includes improving of their education and relevant vocational/occupational
skills (which is achieved through the empowerment of inmates earlier discuss) and
social reorientation through counselling strengthens their ability to live a normal life.
The strategies must address variables responsible inmates to commit more crimes
subsequent upon their release, to integrate and resettlement them into society as law-
abiding citizens. As Griffiths rightly noted:
These interventions are designed to assist offenders in
preparing for their release from confinement by helping
them acquire the skill sets required to succeed in the
community, addressing personal challenges and the factors
associated with their criminal behaviour, and establishing
the necessary contacts and relationships in the community.

598
With constitutional supremacy, the constitution prevails where any practice or law that is
inconsistent with its provisions.
599
C. T. Griffiths, Y. Dandur and D. Murdoch, The Social Reintegration of Offenders and Crime
Prevention, The International Centre for Criminal Law Reform and Criminal Justice Policy
(ICCLR) April 2007, available online at: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/scl-
rntgrtn/scl-rntgrtn-eng.pdf

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Many, if not most, of these programs include some of form

of supervision.600
3.1.5 Commutation of Death Sentence to Life Imprisonment
By the provision of the CSA, condemned prisoners on death row can now have their
sentence reduced to life imprisonment after 10 years without being executed having
exhausted all available opportunities for appeal. Section 12(2)(c) of the Act
provides:
where an inmate sentenced to death has exhausted all legal
procedures for appeal and a period of 10 years has elapsed without
execution of the sentence, the Chief Judge may commute the
sentence of death to life imprisonment”.
4.0 N O N -C U S T O D I A L S E R V I C E
This is the main functions of the Correctional Service introduced by the Act. The
introduction of Non-Custodial Service also known as ‘alternative to prison’, is the
aspect of the ‘Nigerian Correctional Service’ that serves as an alternative to going
to a custodial centre’601 especially for minor offences is one major positives of the
CSA. Many prisons in Nigeria are suffering from overcrowding and poor conditions.
Providing alternatives to imprisonment, such as community service, probation order,
parole etc. can assist in reducing the pressure on the custodial centres. Aside the fact
that it will reduce overcrowding602 in the Correctional Centres, it will prevent
situation of allowing what according to Agomo described as “low-risk offenders
from being socialised into the criminal culture by hardened criminals.”603 Also by
Section 460 of the Administration of Criminal Justice Act (ACJA), a Court order
the suspension of a sentence or community service to
(a) reduce congestion in prisons;
(b) rehabilitate prisoners by making them to undertake productive work; and
(c) prevent convict who commit simple offences from mixing with hardened
criminals.
In respect of non-custodial measures, the CSA provides:

600
ibid
601
See s.46 of CSA. By
602
The use of community service instead of sending them to already overcrowded jails.

603
https://www.pmnewsnigeria.com/2019/08/30/buhari-lauded-on-correctional-service-act/
[last assessed on 31/08/2019].

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The Nigerian Non-Custodial Service shall be responsible for the

administration non-custodial measures including
(a) community service;
(b) probation;
(c) parole;
(d) restorative justice measures; and
(e) any other Non-Custodial Measures assigned to the Correctional
Service by a court of competent jurisdiction.604
The CSA also provides for a National Committee on Non-Custodial Measures to be
appointed by the President consisting of the Controller-General; the Deputy
Controller-General in charge of Non-Custodial Service; a retired High Court Judge;
the Director of Social Welfare, Federal Ministry of Youth and Sports; the Director
of Youths, Federal Ministry of Youth and Sports; the Inspector-General of Police
(or his representative, not below the rank of Commissioner); a representatives from
- Ministries of Interior and Justice (not below the rank of a Deputy Director), and
Administration of Justice Monitoring Committee; and three representatives of non-
governmental organizations working in the relevant sector.605
The functions of the National Committee as stipulated in the Act include:
(a) coordinate the implementation of non-custodial measures with the Judiciary
and other relevant agencies;
(b) monitor and propose measures for effective operation of non-custodial
measures;
(c) receive and consider any complaint or view from offenders, victims and
affected communities and make recommendations, where possible, on the
nature of non-custodial measures; and
(d) perform any other function required for the proper implementation of the
Act.606
For implementation at the state level, the Controller-General, in consultation
State/Federal Capital Territory Authority, and with the approval of the National
Committee on Non-Custodial Measures, appoint State Committee on Non-Custodial
Measures.607 The functions of the State/Federal Capital Territory Committees on
Non-Custodial Measures shall align with those of the National Committee on Non-
Custodial Measures.608 The National Committee is also empowered to establish

604
s.37(1).
605
s.37(2).
606
s.38(1).
607
s.38(2).
608
s.38(3).

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Technical Committees on community service; probation; parole; restorative justice

measures; and any other thing the as may be determined by the committee.609
The CSA also stipulates the criteria to be considered for the release of inmates or
diversion of inmates to Non-Custodial Service. These are:610
a. inmates sentenced to three years and above with less than six months to the
completion of their sentence
b. inmates charged, convicted or sentenced for minor offence;611
c. inmates with civil cases;
d. any other criteria as may be determined by the Chief Judge or the Prerogative
of Mercy Committee.
4.1 Examination of the Framework for Non-Custodial Services Under the
CSA
4.1.1 Community Service
Community service is an order of court imposing punishment on an offender to do
unpaid work in the community. Community service instead of other forms of
punishment, such as imprisonment, probation or monetary fines serve the interests
and benefits of the community because it serves as a deterrent to other potential
criminal, and provides a form of restitution for the harm the offended has caused.
Although the CSA did not specify the procedures for community service, there are
provisions in AJCA that serve that purpose.612 As provided by ACJA, the
community service is to be performed as close as possible to the place where the
convict ordinarily resides to ensure that the community can monitor his
movement.613 Furthermore, where the court has made an order committing a convict
to render community service, the community service shall be in the nature of:
(a) environmental sanitation, including cutting grasses, washing drainages,
cleaning the environment and washing public places;
(b) assisting in the production of agricultural produce, construction, or mining;
and

609
s.38(2).
610
s.12(10).
611
Minor offence is a simple offence which means any offence which is declared by law to be a
simple offence or is punishable by imprisonment for less than six months.

612
By s.4(1)(c) of CSA, the Controller-General shall in accordance with the provisions of the
Administration of Criminal Justice Act and other relevant legislation and policies, administer
the non-custodial measures.
613
s.461(5) of AJCA.

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(c) any other type of service which in the opinion of the court would have a
beneficial and reformative effect on the character of the convict.614
Significantly, any convict sentenced to community service shall not at the same time
be sentenced to a term of imprisonment for the same offence. This is to avoid double
jeopardy but may in default of performing his community service diligently and to
the satisfaction of the court, be sentenced to a term of imprisonment for the
remaining part of his community service to which he is in default or neglect.615
However, to ensure strict enforcement of community service, the CSA empowers
the Controller-General to
(a) appoint supervisors to monitor those sentenced to community service;
(b) receive regular reports from supervisors indicating status of compliance with
the court order; and
(c) report all cases of non-compliance submitted to him by the designated
community service supervisors to the appropriate court for action.616

4.1.2 Probation
Generally, a ‘probation order' requires an offender to be supervised by a probation
officer in the community instead of serving time in prison, for a period so specified
in the order to prevent the offender from committing the same or any other offence.
Section 455 of ACJA in respect of probation provides:
(1) A recognizance ordered to be entered into under this Part shall,
where the court so orders contain a condition that the defendant be
under the supervision of such person or persons of the same sex,
called a probation officer, as may, with the consent of the probation
officer, be named in the order during the period specified in the order.
(2) A recognizance under this Part of this Act may contain such
additional conditions with respect to residence, abstention from
intoxicating substance and any other matters as the court may, having
regard to the particular circumstances of the case, consider necessary
for preventing a repetition of the same offence or the commission of
other offences.

614
s.461(4) of AJCA.
615
s.461(7) of AJCA.
616
s.42(1) of CSA.

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(3) The court by which a probation order is made shall furnish to the
defendant a notice in writing stating in simple terms the conditions
he is required to observe.
Offenders under probation orders are required to be of good behaviour, and to
remain in contact with a probation officer. The duties of the probation officer,
subject to the directions of the court are:
(a) where the person on probation is not actually with the probation officer, visit
or receive reports on the person under supervision at such reasonable intervals
as may be specified in the probation order or subject as the probation officer
may think fit;
(b) see that he observes the conditions of his recognizance;
(c) report to the court as to his behaviour; and
(d) advise, assist, and befriend him and when necessary to endeavour to find him
suitable employment.617
While the court is empowered if it appears to it on the application of the probation
officer that it is expedient to vary the terms and conditions of a probation order; 618
however, if an offender whilst on probation breaches the conditions of the probation
order, he shall be rearrested and sentenced for the original offence.619
By the provision of the CSA, probational services shall include
(a) production of pre-sentencing report;
(b) supervision of convicts on probation order as assigned by a court of competent
jurisdiction;
(c) production of pre-release report to facilitate reintegration of the offender; and
(d) provision of any other support service as may be required.620
4.1.3 Parole
Parole is the early release of an inmates from confinement before the expiration of
the term of imprisonment on the condition of good behaviour. Parole is different
from state pardon under prerogative of mercy exercise by State Governors,621

617
s.457(1) of AJCA
618
s.458 of AJCA.
619
s.459 of AJCA.
620
s.41 of CSA.
621
Section 212(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
the Governor of a State may grant any person concerned with or convicted of any offence
created by any Law of a State a pardon, either free or subject to the lawful conditions; grant
to any person a respite, of the execution of any punishment imposed on that person for such
an offence; substitute a less severe form of punishment for any person for such an offence;
or remit the whole or any part of punishment for any punishment imposed on that person

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amnesty622 or commutation of sentence.623 Though not applicable to some heinous

offences, the release of a convict on parole is usually granted “for good behaviour
on the condition that the parolee regularly report to a supervising officer for a
specified period.”624 Neither the CSA nor ACJA provided the procedures for
administration of parole, however, the procedures of community service and
probation should by necessity apply mutatis mutandis.
Controller-General is charged with the responsibility of administering the parole
process and his role include:
(a) the appointment of members of the parole board;625
(b) supervision of parolees;
(c) rehabilitation of the parolees;
(d) administration designated parole facilities; and
(e) undertake any other step for the proper implementation of this provision and
other Non-Custodial Measures.626
4.1.4 Restorative Justice Measures
Restorative justice is a new approach to repairing the harm caused by criminals by
the facilitation of meetings between offenders, victims, and other persons affected
by the crime or action of the offenders. It is reconciliatory as it offers opportunity to
make amends for the criminal action. The jurisprudential basis of the principles of
restorative justice have been summarized as follows:
a. Crime causes harm and justice should focus on repairing that harm;
b. The people most affected by the crime should be able to participate in its
resolution;

for such any offence or of any penalty forfeiture otherwise due to the state on account of
such an offence.
622
'Amnesty' is an official statement allowing people who have been put in prison for crimes
against the state to go free. See: Adeola v. State (2017) LPELR-42327(CA) at16.
623
A commutation of sentence is a reduction in sentence. A commuted sentence replaces the
original, court-ordered sentence.

624
A. G., Bryan (ed.), Black’s Law Dictionary (9th edn, West Group, St. Paul, Minn., 2004) p. 1227.
625
A parole board is s a panel who decide whether an offender should be released from prison
on parole after serving at least a minimum portion of their sentence as impose by a court of
competent jurisdiction.

626
s.40.

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c. The responsibility of the government is to maintain order and of the

community to build peace.627
Restorative Justice is a way of addressing conflict resulting from crime that enables
the offenders who perpetrated the harm, the victims who were affected by the harm,
and the community to meaningful resolved the conflict. In contrast to the traditional
justice system which seeks to punish every criminal act, Restorative Justice focuses
on repairing damage and prevent conflict, build and restore relationships and repair
harm by enabling the parties to communicate effectively and positively. Generally,
restorative justice is characterized by:
• Encounter: creating opportunities for victims, offenders (wrongdoers), their
families and community members who want to do so to meet to discuss the
crime (incident) and its impact on them
• Amends: expecting wrongdoers to take steps to repair the harm they have
caused
• Reintegration: seeking to restore victims and offenders to wholeness, to
become contributing members of society
• Inclusion: providing opportunities for parties with a stake in a specific crime
or incident to participate in its resolution.628
To develop and promote restorative justice in Nigeria, the CSA provides that
restorative justice may occur at pre-trial stage, trial stage, during imprisonment or
even at post-imprisonment.629 Furthermore, the correctional service shall liaise with
the Court and other relevant agencies630 providing the platform for restorative justice
measures which shall include:
(a) victim-offender mediation;
(b) family group conferencing;
(c) community mediation;
(d) any other mediation activity involving victims, offenders, and where
applicable, community representatives.631
5.0 A DM I N I S T R A T I ON O F T HE C OR RE CT I ON S E RVI CE
The CSA made provisions for the administration of the Correction Service include
the Directorate at the National Headquarters, Zonal Offices, State Command; and

627
http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-
restorative-justice/lesson-1-what-is-restorative-
justice/#sthash.vntSDK0D.SBQB9mxM.dpbs [last assessed on 01/09/2019].
628
https://rpiassn.org/resources/what-is-restorative-justice/ [last assessed on 01/09/2019].
629
s.43(3) of CSA.
630
s.43(2) of CSA.
631
s.43(1) of CSA.

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more importantly, the qualification, appointment, approval and removal of the

Controller-General. The Act provided for a Controller-General,632 a minimum of 8
Deputy Controller-General (one of whom shall be responsible for Non-Custodial
Service)633 and such other subordinates to the Controller-General as may be
necessary for the administration of service.634 The Controller-General shall be
appointed by the President on the recommendation of the Board subject to
Confirmation of the Senate.635 This are new provisions that were absent from the
repealed Prisons Acts.
The Controller-General is to be appointed from among the rank of serving Assistant
Controllers-General and above who have:
(a) evidence of attendance and satisfactory performance at all mandatory training
and command courses;
(b) vast experience in correctional management and administration;
(c) evidence of quality leadership and good track record in the service; and
(d) evidence of satisfactory performance in field command position.636
Any person appointed to the office of the Controller-General shall hold office for a
single term of five years or on attainment of the mandatory retirement age of 60 or
35 years in service, whichever comes first.637 However, a Controller-General can
only be removed from office if:
(a) a report of gross misconduct or incapacity to perform his functions due to
physical or mental ill health has been made against him by any person to the
Board;
(b) the Board considers the allegation made under subsection (1)(a) serious and
sets up a Committee, including relevant experts where necessary to investigate
the matter;
(c) the Board considers the allegation and after fair hearing recommends that the
Controller-General be removed from office; and
(d) the President accepts the recommendation of the Board and effects the
removal.638

632
s.1(3)(a) of CSA.
633
s.1(3)(b) of CSA.
634
s.1(3)(c) of CSA.
635
s.3(1) of CSA.
636
s.3(2) of CSA.
637
s.4(3) of CSA.
638
s.6(1) of CSA.

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6.0 C O N C L U S I ON S
This paper has ex-rayed the legal framework for correctional services in Nigeria.
The new Correctional Services Act is more comprehensive in terms of scope than
the erstwhile Prisons Act. The new Act makes provisions for both Custodial and
non-custodial services, which has introduced a new dimension into the ways and
manners the correctional services in Nigeria is managed. The paper concludes that
the CSA if properly implemented, will ensure the desired reforms in the
administration of criminal justice system in Nigeria.

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N E GA T I V E P E R C E PT U A L I M P ACT O N I S L AM I C L AW A N D I T S
I M PL I C A T I ON S O N T HE N I GE R I A N L E GAL S YS T E M 639
BY
M A R U F AD E NI YI (PhD)

ABSTRACT
The Nigerian legal system is expected to be pluralistic in nature but
appears in the real sense of it a one-sided system. This is because of the
domineering tendency of the English imposed common law on those
legal systems that were in place prior to the advent of the colonialism.
Although, the country has experienced various form of governance in
term of political structures and systems, yet, nothing appears to be
changing even though the inherited legal system was seriously affected
by the negative perception of the colonialist whose thought is tainted
with the feelings of superiority and biasness. Worst hit is the Islamic law.
A supposed complete legal code that is reduced to a mere supplementary
code now tending towards a complete extinction. Moreover, the terrorist
attacks in various part of the world and the thought that these attacks
were carried out by militant Islamicists has led to public scepticism and
hostility against the Muslims and apathy toward anything Islamic,
particularly the Shariah legal system. This further seal the pre-conceived
notion of the colonial master. Invariably, the seed sown during the
colonial era are been watered and its soil fertilised, so much that it has
consequently grown and covers all aspect of human endeavour including
the legal system. Thus, harvesting the inherent benefits embedded in the
Islamic law therefore becomes a problem that required to be solved. This
paper by using the doctrinal research methodology, reviews these
perceptual impacts on the Nigerian legal system and found that it will
continue to retard its growth and development if the issues are not
addressed.

Keywords: Legal System, Islamic Law and Negative perception.

639
Maruf Adeniyi Nasir, Ph. D, Ag Head, Public and International Law Department, College of
Law, Osun State University, Ifetedo Campus, Osogbo, Osun State, Nigeria,
adeniyinasir@uniosun.edu.ng.

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1.0 I NT RO D U C T I O N
The consequential effect of the legal system bequeathed on the country is so grave,
so much that it has become practically impossible for the country to free itself from
the clutches of the legal culture that was transplanted and structured to dominate that
of the pre -colonial era. The Nigerian legal system is expected to be pluralistic in
nature but appears in the real sense of it a one-sided system. This is because of the
domineering tendency of the English imposed common law on those legal systems
that were in place prior to the advent of the colonialist. Although, the country has
subsequently witnessed various forms of governance in term of political structure
and systems. These ranges from, parliamentary, military, and presidential system of
governance. Yet, nothing appears to be changing even though the inherited legal
system was seriously affected by the perception of the colonialist that is tainted with
the feelings of superiority and biasness.
Worst hit is the Islamic law, a supposed complete legal code that is reduced
to a mere supplementary code, now tending to a complete extinction. Moreover, the
terrorist attacks in various part of the world led to public scepticism against the
Muslims and the religion of Islam. This is because there is impression that these
attacks were carried out by militant Islamicists. Consequently, negative perception
that have been developed into a more detrimental global perceptual impacts on the
Muslims and Islamic law is created. The resultant effect of this is hostility and
apathy toward anything Islamic which further seal the pre-conceived notion of the
colonial masters.
On the face of it, Nigerian legal system stands essentially, on a tripod
platform. It is a fusion of laws that comprise the English laws, the Customary and
Islamic Laws. The system is structured in such a manner that make judicial
pronouncements and decisions in England (along with other common law
jurisdictions) to remain persuasive authority. Nevertheless, structurally, it appears
that despite the watertight system, it is extremely difficult for judicial officers to
shed off the overbearing influence of religious and cultural beliefs. This might be
because of the multi-ethnic nature of Nigeria. The country consists over 250 ethnic
groups.640 The implication of this is that the existing system attempts to weave the
cultural and ethnic diverse nature of the people. Thus, having the geo-cultural
diversity of the country forming major part of the legal system could therefore be
justified and could probably explain the fact that heterogeneity nature of Nigeria
reflects in its legal system.641
However, while the Nigerian legal system continues to draw much strength
from common law probably because of the effect of legal transplantation from the
colonial English legal system, the others, particularly the Islamic law has been
waning and presently relegated to personal laws.

640
Taslim Olawale Elias, The Nigerian Legal System (Routledge & Kegan Paul 1963).
641
Niki Tobi, Sources of Nigerian Law (MIJ Professional Publishers Limited 1996).

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The Nigerian Muslims are said to be a little above 50percent of the

population642 and the Shariah law has become way of life of the most Northerners
in the Northern part of the country long before the introduction of the English law
by the Colonial Master.643The situation appears to have become complicated
somehow. Consequential effect of the adopted pluralistic legal system that tend to
subject other sources of the legal system to that of the common law might be the
only explanation that could be probably given for the seemingly relegation of the
earlier legal systems.
For instance, the adoption of Shariah criminal justice system by the Zamfara
state government, which was followed by many other states in the Northern part of
Nigeria caused a lot of controversy. The constitutionality of this act becomes a
terrible issue that was over flogged. The reason that could be adduced for this
seemingly controversy is either lack of adequate knowledge of what Shariah
signifies or scepticism about Islam which founded on the perception of many people
about Islam and Shariah in general. Considering the fact that law supposed to be an
instrument of social changes in which individual rights and liberties are guaranteed,
this development is therefore, fast taking off from law this major function and
purpose in the society.644 The causes and effect of this are discussed in other
segments.

2.0 O VE R V I E W OF T HE N I GE RI A L E GAL S YS T E M
The term legal system is a phrase which refers to the totality of adjudication process
in any given state or country. It refers to the entire process required for the
administration of justice. It therefore includes the laws, the courts, personnel, and
all other machinery necessary for adjudication and administration of justice in any
given state or country. Invariably, Nigerian Legal System is the entire laws and legal
machinery that are employed in the administration of Justice and governance in
Nigeria. A major characteristic of the Nigerian legal system is that it essentially
based on the inherited English common law. This is because of colonization and the
instrumentality of legal transplantation that gave room to reception of English
law.645
What are the necessary elements or features that must be contained in a legal
system? Can Nigerian Legal System be said to have contained all the required

642
Pew Research Center, ‘Mapping the Global Muslim Population: A Report on the Size and
Distribution of the World’s Muslim Population’ (2009). See also Nigerian demographics and health
survey in 2013(latest), where 51.5% of the populace are said to be Muslims (page 60) at
https://dhsprogram.com/pubs/pdf/...
643
Akintunde Olusegun Obilade, The Nigerian Legal System (Sweet & Maxwell Ibadan 1979).
644
See https://www.cronuslaw.com/the-purpose-of-law-and-its-functions-in-society
645
Yemisi Dina, John Oluwole A Akintayo and Funke Ekundayo, ‘Guide to Nigerian Legal
Information’.

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attributes? These questions are vital. Particularly when it is considered that, in

appraising a legal system, a major characteristic is that it must cuts across all aspects
of law. A deep search into the components of the Nigerian Legal system is likely to
show that this can also be said of the Nigerian Legal System. A proper examination
of the ‘system’ will reveal the fact that it does not limit itself to the technical and
substantive rules only.646 But can it be said to have given life to the technical and
substantive rules? This is probably not certain, although, it appears to involve
articulation of the origin, development, workings, and the philosophy for sustaining
the sub structure. A careful analysis of its component is mostly likely to show that
it is skewed to one side than others. It is more of the inherited English law than those
indigenous laws that were in existence from time immemorial.
The colonial master succeeded in relegating other laws to a mere subsidiary
despite the diverse feature of the country. It should be noted that, the imposition of
the English common law has far- reaching consequences. This had subsequently
supplanted other judicial processes and principles, particularly the Shariah.
Invariably, the common law rather the customary or the Shariah serves as the major
judicial procedures and the criminal code. Consequently, the subsisting laws in
Nigeria are at variance with its social -cultural and religious values and contexts.
This is obviously not in line with the general principle of a legal system because it
does not conform with the social realities of the country. The problem becomes more
glaring knowing that Islam is a religion which specifies the way of life.647The
scenario was aptly described by Okonkwo in this manner as follows:

Upon the monstrous advent of the colonial masters and the

parochial amalgamation of 1914, different cultures, politics, and
religion were forcibly fused and draconian Laws distinct from the
people, were made to safeguard and keep in check, these distinct
entities.648
The above statement is justifiable, since, Nigeria is heterogeneous society of
over 250 nation states and with over 500 ethnic and linguistic groups that spread
across the six geopolitical zones of the country.649 Invariably, the purport of the
statement is that the geo-cultural diversity of the country ought to form the major
part of the legal system. What is rather on ground is the imposition of the English
common law from the colonial master that has whittle down the cultural and

646
Ese Malemi, The Nigerian Legal System: Cases and Materials (Princeton Publishing Company
2012).
647
Emmanuel Okonkwo, ‘An Appraisal of Nigerian Legal System in the Light of Savigny’s
Philosophy of Law’.
648
Okonkwo (n 8).
649
Maruf Adeniyi Nasir, ‘Banks’ Compliance with Anti-Money Laundering Laws in Nigeria:Lessons
From The United Kingdom’ (International Islamic University Malaysia 2018).

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religious effect on the Nigerian legal system. The above observation makes the
correctness of the view of Okonkwo on what constitute the Nigerian legal system
appears to be debatable.650
He stated that – Nigerian legal system “consists of the ‘totality of laws, or
legal rules and the legal machinery, which obtain within Nigeria as a sovereign and
independent African country”. However, if we are adopting or taking cue from the
definition of the Nigerian legal system as stated by Okonkwo, the major principal
legal sources of the Nigerian legal system are the Constitution, the Received English
law, Case laws, Nigerian Legislation or Local Statutes, Customary and Islamic
laws.651 This is undoubtedly the truth. But it must be stated that these sources are
not put on the same pedestrian.

3.0 P E R CE PT I ON O F I S L A M I C L AW I N T HE C OL ONI AL E R A
There was no time when the country can be regarded as lawless environment. This
is because, prior to the period of colonization by the British, Various parts of the
present-day Nigeria had their own applicable rules, norms, habits and cultures that
guides, binds and governed each of the ethnic groups that make up the country called
Nigeria.652 These normative rules of moral conducts regulated conducts and
activities of people and were applied by the different ethnic groups that are in the
country. The people therefore in pre-colonial era had their own indigenous system
of administration of justice aimed at promoting communal welfare. Thus, people’s
divergent interests were being adjudicated upon under the subsisting traditional and
Islamic systems of administration of justice which were in operation among the
various ethnic groups.
It could therefore be asserted that the British met certain legal system in
Nigeria. This evident in the fact that those laws that were operational in the Southern
Protectorate were called customary law, while the laws and customs they found
operating among the various people in the then Northern protectorate are
erroneously referred to as native law. The British, recognition of the customs, rules,
norms after colonizing Nigeria was established the Privy Council in the case of
Laoye v. Oyetunde653 where the Privy Council in examining the basis of the
establishment of Native Courts said:- “The policy of the British in this and other
respects is to use for purposes of administration of the country the native laws and

650
Cyprian Okechukwa Okonkwo and Michael E Naish, Criminal Law in Nigeria (Sweet & Maxwell
London 1980).
651
English law comprising Acts or Orders in Council applying directly to Nigeria, Statutes of
General Application, the Common law, Doctrines of Equity, see Obilade (n 4).
652
Elias (n 1).
653
Laoye v Oyetunde (1944) A.C 170

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customs in so far as possible and in so far as they have not been varied or suspended
…..”
However, the Islamic law has been erroneously perceived and treated as if it
is synonymous with the native or customary law. The colonial masters perceived the
Islamic law to be the cultural belief of the Northerners, and as such a replica of their
customs and traditional way of life. This line of thought informed the dispositions
of the colonialist and the view were wrongly inherited and supplanted to the legal
system even long after their departure. This anomaly continues until probably in
recent time, when the Supreme Court started to correct itself from this line of
reasoning.
For instance, unlike the previous cases such as Adesubokan v Yinusa654, the
Supreme Court also stated clearly in the case of Alkamawa v Bello655 that “Islamic
Law is not same as customary law as it does not belong to any particular tribe, It is
a complete system of universal law, more certain and permanent and more universal
than the English Common Law”. Besides, the fact that Islamic law, unlike the
customary law is essentially written, the above pronouncement further identified
other major features of Islamic law that distinguished it from customary law. These
include: the certainty, permanent nature, the universality status and being a complete
system of legal code.
This decision in Alkamawa case was in tandem with an earlier decision of
the Supreme Court in Usman v Umaru,656 where it was emphasised that the meaning
of the customary law cannot be construed to include Islamic law. In Usman v Umaru,
Ogundare JSC stated as follow:

….is defined in Section 2 of the Plateau State Customary Court of

Appeal Law as meaning “the rule of conduct which governs legal
relationships as established by custom and usage and not
forming part of common law of England nor formally enacted by
the Plateau State House of Assembly but includes any declaration
or modification of Customary Law657

Beside the issue of construing the Islamic law in the context of Customary
law in term of its meaning and nature, another major perceptual error of the colonial
master is the thought that the concept of justice and fairness can only be
comprehended and defined by the English law. The implication of such belief and

654
Adesubokan v Yinusa (1971) All N.L.R 227.
655
Alkamawa v Bello (1998) LPELR-424(SC).

656
Usman v Umaru (1992) LPELR- SC, (1992) 7 NWLR (Pt. 254) 377
657
Usman v Umaru (1992) LPELR- SC, (1992) 7 NWLR (Pt. 254) 377

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reasoning is that justice cannot be achieved through other legal system except the
English Law, Consequently, the rule of repugnancy and incompatibility test was put
in place. While the concept of natural justice, equity and good conscience are the
components of the repugnancy test that of the compatibility test requires Islamic law
to conform with the existing laws and those that would be passed to law from time
to time.658
On repugnancy test, it should be noted that the term, justice, and equity has been
found to be vague and at most very relative in meaning.659 Moreover, the concept of
equity, trust and justice are sacrilegious under Islamic law. On this the Quran
reiterated this as follows:

Verily, Allah commands that you render back the trusts to those
to whom they are due, and that when you judge between
mankind you judge with justice” Q4:58
To this effect, conciliation of evil act is highly forbidden and prohibited in a stronger
manner whenever the attainment of justice becomes an issue under the ‘Shariah’
principle. The Quran provides thus:

O you who believe! Stand out firmly for justice, as witness to

Allah, even as against yourselves or your parents or your kinsfolk,
be(against) rich or poor. Allah is better protector to both; follow
not the lusts (of your heart) so that you may act equitably. If you
conceal the truth or evade it, verily Allah is ever well acquainted
with what you do. Q4:135

4.0 L I K E L Y C A U S E S O F N E G A T I VE P E R CE PT I ON
The negative perception of Islam and that of its legal system appear to have been
caused by several factors. These include, lack of adequate knowledge of ‘Shariah’,
Islamophobia and the dastard act of some other people that claim to be Muslims. For
instance, currently, there are increases in the terror attacks globally. Coincidentally,
these terrorist attacks (in various part of the world) in most cases go with the thought
that they were carried out by (those referred to as) militant Islamicists.
Consequently, public scepticism against the Muslims and the religion of Islam is on
the increase.660 The negative perception that is created had further developed into a

658
Muhammed Tawfiq Ladan, Introduction to Jurisprudence: Classical and Islamic (Routledge &
Kegan Paul 2006).
659
Ladan (n 19).
660
Normah Omar, ‘Terrorist Financing and Perceeptions on Islamic Financial Institutions’.

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more detrimental global perceptual impacts on the Muslims and Islamic financial
institutions.
Subsequently, an impression that Shariah is synonymous to hardship and
terror is formed and generalised without any exception. The resultant effect of this
is unnecessary hostility and apathy toward anything Islam, particularly the Islamic
financial products. The opinion that Islamic financial institutions are not compatible
with the anti-money laundering and counter financing terrorism laws (AML/CFT)
is therefore easier to form.661 Islam itself is therefore seeing as religion that is either
fuelling terror or aiding the course of terrorist and launderers.662
Nigeria is not an exception in this negative perceptual syndrome on issue
relating to Islam and its legal system. However, it becomes more pronounced with
the enormity of the problem created by the terrorist attacks in Nigeria, particularly
by the bandits, herdsmen and that of boko-haram group. Thus, the ‘Boko-haram’
attack is fuelling a perception of systemic bias and prejudice against anything
Islamic, particularly the Shariah legal system. Thus, the seed sown during the
colonial era are been watered and its soil fertilised. Consequently, it has grown and
now covers all aspect of human endeavour including the legal system in Nigeria.
This is because a negative impression is formed and generalised without any
exception. Addressing the defect of the existing legal system therefore becomes
difficult.
The consequential effects of these attacks are enormous on the nation’s
economy, security, education, and all other aspect of human endeavour. They are
becoming more devastating and the situation is becoming worst daily. The
cumulative effect of such criminal acts (because of its link to those that are perceived
as Muslims) continue to create negative perception. As earlier identify, the negative
feelings as unfortunately extended to the financial system, such that, the thought that
Islamic financial systems are not in tandem with AML/CFT laws are now gaining
ground. Consequently, many people, without any empirical proof or research
conclude that Islamic banks are not complying with AML/CFT compliance
measures.663
The crisis orchestrated by the introduction of non-interest bank in Nigeria
could not have been so tense, were it not for this negative perceptual issue. This is
because, the issue of the agency that is saddled with the regulatory responsibilities
from its inception is clear and it is the Central Bank of Nigeria (CBN)664. The CBN
is vested with the control and supervisory role dated back to 1959 when the first

661
Maruf Adeniyi Nasir, ‘Compatibility of Islamic Finance and Anti-Money Laundering Laws: A
Myth or Reality?’ (2018) 26 IIUM Law Journal 55.
662
Nasir, ‘Compatibility of Islamic Finance and Anti-Money Laundering Laws: A Myth or Reality?’
(n 22).
663
Maruf Adeniyi Nasir, ‘Islamic Finance and Anti-Money Laundering: A Myth or Reality?’, 5TH
ASEAN University International Conference on Islamic Finance (2017).
664
The Central Bank of Nigeria is the apex bank in Nigeria created currently by CBN Act 2007.

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Central Bank Act of 1958 became operational.665 The CBN is conferred with wide
ranges of power which include issuing operation license to bank and power to deny
bank licenses as well as power to freeze suspicious account. These powers are
strengthening by the combine provisions of BOFIA 1997, Foreign Exchange
(Monetary and Miscellaneous Provisions) Act 1995 and Money Laundering
(Prohibition) Act 2011.
A deducible inference that could be possibly drawn is that, there are
sufficient laws in place to deal with the issue of banks and its’ formation. It therefore
becomes difficult to comprehend the stiff opposition against it when the CBN had
found legal backing and basis to approve and issue operational license to JAIZ bank.
The only reason that could be adduced is its Islamic nature which created a big
hurdle for CBN to cross. Resolving this issue became difficult. It lasted for several
months for no other reason other than the perceptual issue. Unfortunately, most of
those that were opposing it lack knowledge of Islamic law of finances and
transaction. Are people informed of the benefit embedded in Islamic banking
system? How many people understand the fact that Islamic bank is participatory in
nature? And that this keyed into know your customer (KYC) requirements in the
Anti-money laundering legal regime. Thus, many that volunteer comments,
criticism and attacking issues under Islamic law lack basic knowledge of Islamic
law.
The judicial and educational sectors are also not spared. The International
Islamic University currently in Uganda was reported to have been proposed to be
cited in Nigeria by the Organisation of Islamic Countries (OIC) but the constitutional
hurdles which reflect the thought and perception of the colonialist frustrated the
plan.666 It should be noted that the offensive word is the Islamic appellation. This is
probably because Section 10 of the constitution provides that “the government of
the Federation or of a State shall not adopt any religion as State religion”. It is
instructive to note that this is the basis upon which many hinged the argument of
secularity nature of Nigeria, while many other scholars held contrary view, but rather
opined that Nigeria is a multi-religions country but not secular.
Nevertheless, the law currently prohibits religious appellation for any
government institution. The reason for this is also perceptual in nature, lack of trust
and the volatile issue that which religious issue has turned to. All these behavioural
tendencies were alien to our nature and practises of old when Nigerians lived with
love irrespective of their religious and cultural background. The alien culture,
governance and legal system has been imposed and ‘the centre can no longer holds.’

665
See Central Bank of Nigeria Portal, CBN, ‘CBN History’ (Central Bank of Nigeria)
<www.cbn.gov.ng/AboutCBN/history> accessed 1 October 2019.
666
Norhashima Mohd Yasin and Yazid Mohd bin Kepli Maruf Adeniyi Nasir, ‘Anti-Money
Laundering (AML) Legal Framework: The Shari’ah Perspective’ (2017) 13 Journal of Islamic Law
Review 211.

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In furtherance to the perceptual problem created by the Boko Haram

insurgent, many are still of the opinion that Boko Haram group are “Muslim
Jihadist”. This thought could be justified to a reasonable level, considering the initial
modus operandi of the Boko Haram group. The initial style and method of operation
of Boko haram group created impression that it was created to attack non-Muslims.
This is because the target of their attack at that time were mostly the Christians,
churches, and other non-Muslims, while they purportedly proclaim pristine Islam.
Although, at long run, it becomes obvious that no person or religious group
is spared by the evil acts of the Boko-haram group, nevertheless, the initial
impression continues to be lingering on the psyche of many people. It therefore
becomes difficult to explain that these acts are gross violation of Islamic law which
forbid all form of organise crime, even when it is expressly stated in the Quran
among other things that; “Help one another in righteousness and piety, but do not
cooperate with one another on evils deed and rancour; Fear Allah; for Allah is
strict in punishment”667. The formed opinion persists. All these happenings did not
only aid and keyed in to the skewed legal system imposed by the colonial master,
but it is also reinforcing the deranging of the structure and aiding the suppression of
Islamic law within the recognised sources of the Nigeria legal system.

5.0 E F FE C T ON N I GE R I A L E G A L S YS T E M

By virtue of section 2 of the native Courts Ordinance of 1914, notwithstanding the

glaring disparities between Customary law and Islamic law, the colonial masters
deliberately stultify Islamic law in Nigeria by tagged it customary law.668 This was
probably based on their perception of Islamic law. This act reveals lack of proper
understanding of the Islamic law. One of the consequential effects of classifying
Islamic law as Customary law is that its’ applicability must be subjected to
repugnancy test. This perception was further strengthened by the old Native Courts
Law of the Northern Region, No 6 of 1956. Section 2 of the said law put Islamic
law as part of the expression ‘native law and custom’. The consequential effect of
this is that the Islamic law is treated in the same manner with given the with the
indigenous customary law. This is done even though the Islamic law are
characterised with distinct features that clearly distinguish it from the customary
law.
Beside the fact that Islamic law is essentially written, it has even grown to
influenced and supplanted the customary laws. This influence is more particularly
visible in the Northern Nigeria. Invariably, the Islamic law was also bound by the

667
Quran Chapter5 v 2.
668
Abdulmumini A Oba, ‘Lawyers, Legal Education and the Shari’ah Courts in Nigeria’ (2004) 36
The Journal of Legal Pluralism and Unofficial Law 113.

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validity test. This was the position until judicial interpretation started to distinguish
the two. For instance, this wrong perception was addressed in Alkamawa v Hassan
Bello & anor669 where the universal nature was upheld, and the court went further
to state that: “Islamic law is not the same as customary law as it does not belong to
any particular tribe”.
The effect of this negative perception on Nigeria legal system is likely to be
more appreciated considering the fact that there was an independent legal system
that was based on a full-fledged Islamic law in the Northern part of Nigeria in the
pre-colonial era. This was changed by the colonial masters upon taken over the
affairs of justice in the country. Subsequently, their own idea, notion and philosophy
of law and justice was imposed on the existing legal system in such a manner that
necessitated the modification and synthesising of the systems.
This happening was one of the major factors that threw the post-colonial era
into tautness and conflicts particularly when there were impositions of judicial staffs
and other common law related personnel. The situation becomes more complex
leading to religious, political and legal stiffness due to what the existing judicial
system that was taken over by the post independent Nigeria. Oba succinctly
described the post independent Nigeria situation in this manner:

The post-colonial era generated its own tensions and conflicts

also. Legal education was patterned exclusively along lines
obtaining in England. Thus, Islamic law and the existing
traditional Islamic educational system had no place. It was only
in the mid-1970s that combined law degree programmes in
common law and Islamic law were introduced in some
universities in Northern Nigeria. In 1985 lawyers gained the right
of audience (which they had lacked throughout the colonial era)
in Area Courts and the Sharia Courts of Appeal, which are courts
of Islamic law jurisdiction. Lawyers who have no training in
Islamic law are now actively involved in the administration of
Islamic law as counsel and judges.670
A cursory look at various books written on Nigerian legal system and Islamic law,
its sources and nature particularly in Nigeria clearly shown a sharply divided pattern.
The view depends on which side of divide is the author. Many mistakes that are
sometimes even fundamental reflected in the publication of most westerners which

669
(1998) 6 SCNJ 127
670
Oba (n 29).

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established a perceptual error on the part of such author.671There are various

introductory books on Islamic law, its nature and sources that reflects the negative
perception of Islamic Law. Thus, while the view of the orientalists and many non-
Muslims presented Islamic law based on distorted manner or coloured with negative
perception, the Muslims and few others are much better. This view is in tandem with
the postulation of ‘Oba’ in a research he conducted where he stated as follows:

However, their perspectives differ. Books written by orientalists

are apt to present a distorted, prejudiced, and biased view of
Islam and its laws while books written by Muslims present a
sympathetic view. Such books written by orientalists
include Joseph, Schacht, An Introduction to Islamic
Law (Oxford: Clarendon Press, 1984), Joseph, Schacht, Origins
of Mohammedan Law (Oxford: Clarendon
Press, 1959), Fyzee, AAA, Outlines of Muhammedan
Law (Delhi: Oxford University Press, 1974) and Coulson, NJ, A
History of Islamic Law (Edinburgh: Edinburgh University
Press, 1964). 672
The cumulative effect of all these happenings continue to taunt the psyche
of average Nigerian in such manner that makes objectivity to become difficult in
any national issue. For instance, despite the global trend and disposition to Islamic
finances, having Islamic products such as ‘Mudahrabah’, ‘Musharakah’, Sukuk673
Waqf674 and many others in Nigeria becomes herculean task due to opposition. And
this is an era whereby, the maqasid-al-shariah 675 has caught the attention of several
Muslim and other knowledgeable scholars as useful tool that can resolve several
contemporary issues and many jurisdictions have begun to consider and adopt the
principle of maqasi-al- sharia in resolving various challenges confronting their
people.
Nigeria, however, is still nagging behind, based on petty religious bias and
intolerance. Despite the success of Islamic system of ‘Sukuk’ in financing projects,
some are still sceptical about it because it is a product of Islamic finance and
therefore shariah compliance. It should be noted that Sukuk is a non interest-based
investment and Islamic oriented financing instrument in which investment
certificate is issued, whereby such certificate represents the ownership interest of the
671
Abdulmumini A Oba, ‘Islamic Law as Customary Law: The Changing Perspective in
Nigeria’ (2002) 51 International & Comparative Law Quarterly 817.
672
Oba (n 32).
673
Sukuk is a non interest-based investment and Islamic oriented financing instrument. See
https://sec.gov.ng/investor-education/sukuk-islamic-bond-at-a-glance accessed 20 June 2020
674
Islamic principle of endowment.
675
The objective of Islamic law.

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holder in an asset or pool of assets. The certificate subsequently entitles the holder
to receive income from the use of the asset.
Currently, the constitution provides for the appointment of those that are
learned in Islamic law as judges in Nigeria,676 yet the system of admitting students
to be called to Nigeria bar does not favour those that chooses to do Islamic law. Until
recent, there is no single University in the whole of Southern Nigeria where students
could offer Islamic law.677 Osun State University has just offered students admission
to study common and Islamic law to break the jinx. But is that sufficient? Can that
university serves the yearning of the tick population of the Muslims in the south
west talk less of the entire southern states? And this a country where the northern
part of Nigeria in the pre-colonial era operated Islamic law as a fully-fledged,
independent legal system that is backed up with its own supporting educational
system.
Besides that, those that study only Islamic/Shariah law are not eligible to be
called to Nigeria bar. This is because unlike those that studied common law, there
are other criteria which include studying of some common law courses as condition
precedent for admission by the Council of Legal Education in Nigeria into bar II
class. This, therefore, technically shut the door of practising law as a profession in
Nigeria to those that studied only Islamic/Shariah law, unlike their counterpart that
studied common law. The anomaly was perfected and continues because according
to ‘Oba’ legal education was patterned exclusively along lines obtaining in England
and lawyers who have no training in Islamic law are now actively involved in the
administration of Islamic law as counsel and judges. 678 A conclusion that could
possibly be drawn is that Islamic law and the existing traditional Islamic educational
system had no place in the current arrangement.
Moreover, even though there are clear provisions of the constitution, all
efforts to have Shariah Court in the southern states of Nigeria in this regard proved
abortive.679 The implication and effect of this on marriage conducted under Islamic
law is better imagined. Still on the Islamic marriage, where would couples that got
married under Islamic law obtained government marriage certificate when there is
no shariah court? Can a court that is strictly guided by common law rules and
presided over by non-Islamic law expert adjudicate on dissolution of marriage
conducted under Islamic law without a miscarriage of justice? How would such
judge comprehend the choice of mother for the custody of child when marriage is
dissolved under Islamic law? What of the technicalities that are involved in
determining the paternity of child under Islamic law? Can issue of succession and

676
Section 276, Constitution of Federal Republic of Nigeria,1999.
677
See https://www.nuc.edu.ng/approved-universities-to-run-postgraduate-programmes/
accessed on 28 June 2020.
678
Oba (n 29).
679
See section 275

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inheritance under Islamic law be possibly resolved without a sound knowledge of

Shariah? The unanswered questions are endless and the whole happenings are the
consequential effects of the suppression of other laws by the colonial masters due to
their perceptual feelings for other legal systems, particularly the Islamic law.

6.0 C ON CL U S I ON
Every nation possesses its own trait, identity and historical background that is
attached to its survival. Law should therefore be adapted to comply and stem from
the spirit of each nation based on their historical antecedent. This is because the
experience and background of each nation are not the same. Legal system that works
in one environment may not necessarily be applicable in others. Therefore, legal
system ought to be a reflection and identity of the people. Thus, despite, the
influence of the English law on the development and growth of the Nigerian legal
system, it should not necessarily lose touch with its origin and African character.
The making of legislations should therefore be driven by knowledge. This will
correct the negative perception upon which many issues are based in the current
legal system and as such the grey areas that is fast turning people to second class
citizens in their country (because of perceptual error) will be addressed. The legal
system must not be static but grow with the growth.

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C H A L L E N GE O F A U T OC HT H O NY : C ONS T I T UT I ON AL R E -
E N G I N E E R I N G I N A D E M OC RAT I C N I GE R I A 680
by
Mojeed Olujinmi A. Alabi

1.0 I NT RO D U C T I O N
The Constitution is the fons et origo of the law of any governance system.681
It is the supreme law of the land, the grundnorm or the basic law, which is the highest
in the “hierarchy of norms” that governed the society and hence the foundational
basis for determining the validity of all or any other laws. 682 For the larger society,
our behaviouralist conception of the nature of the Constitution has a wider context
beyond the realm of legality. The Constitution is the framework for the orderly
conduct of the affairs of any society. It is the instrument of governance that defines
the framework upon which all the other aspects of the society – economic, social,
cultural, educational, technological, etc – are dependent. Thus, the Constitution lays
the foundation of a good or a bad society. That is why the advanced and stable
democracies took great pains in devising their constitutional instruments, often
preceded by intensive and extensive consultations to lay a legacy of endurance for
solid foundation that have lasted centuries.
That does not mean that a Constitution must be static. A Constitution is a living
instrument of governance, expected to reflect the core values and dominant
traditions that determine the spirit of a people and the values held sacrosanct by
them. It is, thus, expected to be crafted in a manner that makes it relevant to the basic
issues expected to task the capability of leaders and rulers on an ongoing basis. It
needs not necessarily be as verbose as the Nigerian Constitution is, as the American
experience has shown.683 But it must be all-encompassing without compromising its
adaptability to changing conditions and circumstances. The living character of a
Constitution presupposes that it can be reviewed, revised, altered or amended in
order to align its provisions to the dominant core values of the society at any point
in time. The ability or otherwise to do this successfully makes the difference between
a good and a bad polity, or between a thriving and a failed state.

680
Mojeed Olujinmi O. Alabi, BSc (Ife), MSc (Ife), PhD (Ibadan) in Political Science, LLB (Ibadan), LLM
(Ife), PhD (Leicester) in Law; BL Speaker, Osun State House of Assembly (1999-2003 Member, House
of Representatives (2015-2019) and Professor of Political science.
681
See the dictum of Niki Tobi, JSC in Attorney General Abia State & 2 ors v Attorney General of
the Federation & 33 ors (2006) 16 NWLR (pt 1005) 265 at 381C-E; (2006) NGSC 79 (7 July 2006)
682
Shehu, Ajepe Taiwo, “Judicial Review and Judicial Supremacy: A Paradigm of Constitutionalism
in Nigeria”, International and Comparative Law Review, Vol 11 No 1, 2011, p 46 (45-75)
683
The Constitution of the US has a Preamble and 7 articles, while the Constitution of the Federal
Republic of Nigeria 1999 has 320 sections and 7 schedules

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This paper interrogates the performance of the Nigerian State in the search for
an enduring constitutional framework for its government and society. The concern
is not so much in the number of times the country has changed or altered its
Constitution as in the failure of the several expenditures of time, money and other
human/material resources to produce the desired results of giving the country by and
for “We, the people of … Nigeria”, as the successive constitutions have proclaimed
in the preamble. In doing this, we limit ourselves to the most recent attempts at
constitutional re-engineering, to wit; the several efforts since the advent of the
Fourth Republic to amend the 1999 Constitution. We critically appraise the
performance of the legislature in this regard as we make prognosis for the way the
country should go for the germinating of an autochthonously effective and enduring
Constitution.

2.0 B ACK G R O U N D
Nigeria has had more than a century (precisely 106 years) of experience in
constitution making. Compared to the experience of such advanced democracies as
the US and the UK, that wasn't a feat for which we could beat our chest. The
unwritten constitution of Great Britain is dated in antiquity684 while the Constitution
of the United States has passed its Bicentennial anniversary.685 There's indeed no
basis for any comparison between ours and theirs. What calls for reflection is that
while average American, Briton or Irish believe the constitution as his/her and hold
the leaders accountable on that basis, there is so much disconnect between the people
and the governance processes the average Nigerian has little or no appreciation of
the importance of the Constitution in shaping his live. This negative attitudinal is
not unexpected. The constitution-making efforts since 1913 have never been
designed to make Nigerians take ownership of the processes. A constitution should
normally be a product of the people's will untainted by any other authority or power.
In other words, a constitution properly so called should be autochthonous, locating
its source in the people and from no other authority. Although the successive
Constitutions have openly proclaimed "We, the people of Nigeria" as the ultimate
source of their authority, the subsequent discussions in this paper will reveal that
this has never been the case. They have not been truly products of indigenous
growth. Attempts to make the people take ownership of the various instruments have
met with one challenge or the other. They have been at best products of elite
consensus, often with weak legitimacy. In order words, autochthony, the underlying
basis of all enduring constitutional democracy, has escaped the process of
constitution making in Nigeria. That has been the foundational basis of the failure
of our governance systems.

684
See: Walter Bagehot, The English Constitution, Cambridge: Cambridge University Press, 2017
685
The Constitution of the United States is a product of the Constitutional Convention that held in
Philadelphia, Pennsylvania from May 25 to September 17, 1787

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2.1 Constitution, Autochthony and Constitutionalism

Rudimentary knowledge of law and politics tells us that the basis of any
government, its organisation and structures, its system of power relations and values,
can be found in its constitution. A constitution is the soul of a nation, defining its
structure, political powers, political and legal relations of entities as well as the rights
and obligations of the citizens.686 It also defines the collective aspirations of the
people and the values or norms that bind them together as a people. Such instruments
may be authoritatively codified in a single instrument that represents the grundnorm
or basic law. They need not be so codified, and a legal instrument needs not carry
the word “constitution” for it to have such a status, eg the Engish Magna Carta
(1215), Petition of Right (1628) and Bill of Rights (1689) or even the first ten
amendments to the US Constitution of 1787 known as the Bill of Rights (1791). In
Nigeria, the various treaties of accession between the agents of the colonialists and
the native kingdoms form part of our constitutional history whether they relate to
trade, resource exploitation, peaceful coexistence or administrative arrangements.687
A Constitution may therefore consist of a number of instruments, such as the
unwritten constitution of Great Britain. It may not even be written at all as we found
in the various prehistoric and pre-colonial societies where knowledge of the
instruments of governance were transmitted over the ages by oral traditions or
preserved in forms of tablets of antiquity that become veritable guides to modern
day constitutional instruments.

Whatever the form may be, a constitution derives its authority and legitimacy
from the people. It is, according to Nwabueze, “an act of the people” made by them
directly in a referendum or through their accredited representatives in a
constitutional convention or constituent assembly specifically convened for that
purpose.688 Where any legal instrument purports to derive its authority from any
individual or body other than the people themselves, it can be nothing but a
constitution. The process for making a constitution is therefore as important as the
contents and mode of enacting it into law. The question that begs for interrogation,
which is the main thrust of this paper, is whether all or any of the constitutional
processes ever undertaken in Nigeria, colonial and post-colonial, can properly be
described as acts of the Nigerian people? I answer in the negative. I submit that all
the processes of constitution making in Nigeria, without a single exception, were
bereft of this unique characteristic of autochthony, making it difficult for anyone to

686
See, generally, A V Dicey, The Law of the Constitution, ed by J W F Allison, Oxford: OUP, 2013,
687
See B O Nwabueze, A Constitutional History of Nigeria, London: C Hurst & Co, 1982, pp 1-28;
Ladi Hamalai and hameed Bobboi, (eds), A Century of Lawmaking in Nigeria, Vol I: The
Constitutional Instruments 1861-1999, Abuja: NILS, 2014, pp 1-10
688
Nwabueze, B O, The Presidential Constitution of Nigeria, Enugu: Nwamife Publishers, 1982, p 1

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regard them as acts of the Nigerian people, whether by themselves or through their
accredited representatives assembled for such purpose.
But one thing is common to all constitutions, whether written or unwritten,
formally expressed to be so or otherwise. They define in no ambiguous terms the
framework for the governing of men. The need for such instruments is to curb the
absolutist nature of a man of power. Whether from the oriental, Islamic or Western
perspective, it appears that the ethics of governance envisages some restrictions on
the power to rule.689 Absolutism itself was not a historical accident. All historical
discourses pointed to a situation of man that was too unpleasant to behold since
Adam and Eve were thrown out of the Garden of Eden because of their iniquities to
wander around the land.690 Thus, to use the popular words of Thomas Hobbes, life
in the state of nature could not but be “nasty, brutish and short” since everyone was
for himself and none for all. The need for preservation of lives led to the creation of
the Civita which must be an absolutist in order to properly discharge the function of
preserving the lives of the citizens. Such logical prescription, perhaps, forced
Niccolo Machiavelli to prescribe a strong authority. But the nature of man is not
given to undue control by something else where his liberty suffers. And the need to
preserve human liberty, even as we seek the security of the society, led other social
contract theorists from John Locke, through the Jean Jacques Rousseau, to the
utilitarian John Stuart Mills to prescribe some limits to the extent of governmental
power.691 For the Orientalists and other advocates of the “divine rights of kings”,692
absolutism is sought to be tamed through the religious books and other treatise that
subject the maximum ruler to the overall control of the divine order. In pre-colonial
Africa, while the monarchical rulers were invested with seemingly unlimited power
(Kabiyesi), sufficient limitations existed to curb recourse to absolutism.693
Autochthony is the basis of constitutionalism.694 Each society designs what is
the best for it in the circumstances. Where indigenous basis or autochthony is denied
any instrument of government, there is bound to be problem with any attempt to
impose imported ideas on pre-existing framework of governance. Of course, there

689
See Dr Abdul Karim Zaidan, Individual and the State, International Islamic Federation of Student
Organisation (IIFSO), 1982
690
Al-Qur’an 7: 19-23
691
For the philosophical traditions of the West in this regard, see: Steven M Cahn (ed), Classics of
Political and Moral Philosophy, Oxford: Oxford University Press, 2002
692
See: Kevin Burns, Eastern Philosophy: The Greatest Thinkers and Sages from Ancient to Modern
Times, Arcturus Publishing, 2006; Ibn Khaldûn, N. J. Dawood, Bruce Lawrence and Franz Rosenthal,
The Muqaddimah: An Introduction to History, Princeton University Press, 2004
693
See: Alabi, Mojeed Olujinmi A., “Law Making in Pre-Colonial Yorubaland”, in Toyin Falola and
Ann Genova (eds), The Yoruba in Transition: History, Values, and Modernity, Durham: Carolina
Academy Press, 2006, p 111-124
694
See, generally, Anthony F. Lang, Jr and Antje Wiener (eds), Handbook on Global
Constitutionalism, Cheltenham: Edward Elgar Publishing, 2017

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are some ideas that are common to all societies and all generations, even where
different terminologies are used. As different cultures meet each other, there are
bound to be revisions and exchange of ideas that continually make the constitutions
living instruments. However, where foreign ideas are imposed in a manner that
become antagonistic to the to the pre-existing value systems, ideas and precepts, the
ensuing contraption is bound to constitute a continuous source of strains and stresses
on the system, howbeit long. This is the tragedy of the development of constitution
and constitutional rule in Nigeria, as in many developing countries, where ideas and
legacies left by the colonial impostors have laid contentious traditions that threaten
efforts to rewrite the postcolonial constitutions.

2.2 Colonial Constitutionalism in Nigeria

Although the constitutional history of Nigeria is often dated from the
annexation of Lagos in 1861, through the formal establishment of colonial rule on
the 1st day of January 1900, to the amalgamation of the colonies and the protectorates
in 1914, evidence exist that some form of constitutional rule was in operation within
the various pre-colonial political systems operating in different parts of the
geopolitical entity now known as Nigeria before the advent of colonialism and
colonial rule.695 It is therefore wrong to assume that pre-colonial African systems
had a weak idea of constitution and constitutionalism.696 There was, however, a
recession from constitutionalism when, without due consultation with the native
peoples, different laws – The (Nigeria Council) Order-in-Council 1912, The Nigeria
Protectorate Order-in-Council 1913, and the Letters Patent – were enacted to create
the Nigerian state under a constitutional structure that had a merely advisory and
deliberative Nigerian Council of 30 Members, of which only six were indigenes.697
The Council was constituted by the Governor, in whom was also solely vested the
powers of the Executive Council. While the Indirect Rule policy disrupted the
traditional power structure,698 the Nigerian Council did not function as a body that
could check the excesses of the ruler (Governor) as existed in the Yoruba Kingdoms,
the Sokoto Caliphate or other pre-colonial systems. The Governor was a maximum
ruler who possessed the power of life and death, imposed taxes at will, commanded
the security forces, and banished uncooperative rulers to exile at will.699

695
Alabi, Mojeed Olujinmi A., 2006, op cit
696
See Ali A Mazrui, “Constitutional Changes and Cultural Engineering: Africa’s Search for New
Directions”, in J Oloka Onyango (ed), Constitutionalism in Africa: Creating Opportunities, Facing
Challenges, Kampala: Fountain Publishers, 2001
697
See, generally, J S Coleman, Nigeria: Background to Nationalism, University of California Press,
1971
698
See: C O Ejimofor, British Colonial Objectives and Policies in Nigeria: The Roots of Conflict,
Onitsha: Africana Fep, 1987
699
See G I Jones, The Trading States of the Oil Rivers: A study of Political Development in Eastern
Nigeria, International African Institute, 2000

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This pattern of governance continued throughout the period of colonial rule.

The outcomes of the World Wars I and II, no doubt forced some revisions to the
colonial policies, leading to concession of powers to the native nationalists in phases.
Thus, from a Legislative Council with limited powers and an Executive Council
composed wholly of White men under the Clifford Constitution (1922), the Richards
(1946) and Macpherson (1951) Constitutions gradually integrated Nigerians into
legislative and executive positions until self-governing status was attained under the
Lyttleton Constitution with a series of negotiations in Lagos and London that
culminated in the Independence (1960) and the Republican (1963) Constitutions.
The revisions also permitted gradual evolution of the elective principle, 700 allowed
consultation through constitutional talks,701 heightened nationalist activities,702 and
encouraged the development of political parties.703
It is instructive to note that notwithstanding greater involvement of Nigerians
in the process of constitution making and concession of powers to the nationalists,
the structure and pattern of governance did not significantly change. Nationalist
activism was detested and even repelled by the colonial governments as were
witnessed in the Adubi War, Aba Women Riots of 1929 and other similar attempts
to challenge the authority of the colonial governments.704 The constitutional
framework of colonial rule did not even respect the principles operated in Europe
with regard to tripartite equality of the three arms of government. In fact,
notwithstanding the existence of the legislative assemblies, 705 the Colonial
Governors exercised reserved powers to override legislative actions.706
While these observations might be considered as natural course of events,
dictated by the violent nature of colonial rule itself, the legacies left behind by these
unwholesome practices provided a platform for the patterns of governance that were
witnessed and are still being witnessed in post-colonial Nigeria:
(1) The colonial rulers had little or no respect for the natives or even their nationalist
and traditional leaders, thereby creating a kind of master-servant relationships
between the rulers and the ruled. These patterns of relationships continue to date;

700
Tamuno, Tekena N, Nigeria and Elective Representation, 1923-1947, Heinemann, 1966
701
See Lynch, Hollis R, K O Mbadiwe: A Nigerian Political Biography, 1915-1990, NY: Palgrave
Macmillan, 2012
702
Dennis Osadebay, Building a Nation: An Autobiography, Lagos: Macmillan, 1978
703
See See Richard L. Sklar, Nigerian Political Parties: Power in an Emergent African Nation,
Trenton, NJ: Africa World Press, 2004
704
See: M O Alabi, “Early Resistance to Colonialism in Africa”, in Bayo Lawal and Kola Olugbade
(eds), Issues in Contemporary African Social and Political Thought: Readings for Colleges and
University Vol I, Ibadan: Vantage Publishers, 1989, pp 160-171
705
Alabi, MOA, “The Legislature in National Politics: A Global Scan of Growth, Organisation, and
Power”, in Mojeed Olujinmi A Alabi and Wahab Olasupo Egbewole (eds), Perspectives on the
Legislature in the Government of Nigeria, Tangier: CAFRAD, 2010, p 27
706
See, eg, section 26 of the Nigerian Legislative Council (Order-in-Council), 1946

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(2) the pattern of white supremacist rule created a wide gulf between the government
and the people such that the indigenous people did not consider the colonial
government as their own government. The disconnection between the rulers and the
ruled continues 60 year after independence; and,
(3) There was no emphasis on the rights of the subjects from government, there
being emphasis only on the obligations of the citizens to obey the laws and pay taxes.
While it goes to the credit of the colonial rulers that such neglect of or lack of
attention to citizens’ rights were not intended to deny them of the benefits of good
governance, the same could not be said of those who got power transferred to them
by the colonial rulers on a platter of gold. No wonder then that in modern day
Nigeria, the legislature, the most important institution of democratic governance,
remains the wiping baby of constitutional rule. It would have been miraculous to
expect wielders of executive powers in postcolonial Nigeria treat the “people’s
representatives” better.

2.3 Threats of Military Interregnum

But six decades after independence, must we continue to blame the colonialists
for our current woes when several opportunities have passed for us to change the
course of history in the right direction? As the saying goes - “old habits die hard”,
our historical experience not only laid the foundation of but also surreptitiously put
landmines on our path to constitutional democracy. The legacies of colonialism -
forceful amalgamation of Nigeria, imbalance in the federal structure, separation of
the government from the people, overbearing executive governance, undue
radicalisation of the legislature and manipulation of the judicial system in favour of
the government (Agbef’oba ki i jebi707) - laid a foundation of abuse that threatened
the First Republic and hastened its collapse. The subsequent military rulers not only
lacked the legitimacy to return us to the path of sanity in constitution making, they
aggravated the problem of autochthony by putting in place processes and institutions
that were designed for obvious personal, class or other sectional interests.
Contrary to popular belief, the military rulers realised early enough after the
June 15, 1966 coup that they were ill-fit to rule; military rule itself being considered
an aberration. Thus, within a month of its existence, the military administration set
up study groups to examine the constitutional, administrative and institutional
problems of Nigeria. The Study Group on Constitutional Review had the mandate
to review the 1963 Constitution and make recommendations on structure of
government, division of powers, electoral system, party system, national unity,
among others, with a view to strengthening the federal government. But then a
combination of personal ambition, ethnic chauvinism and class interests aborted an

707
This Yoruba adage is akin to the English principle of crime liability that “the Queen does no
wrong”. See Colin Turpin and Adam Tomkins, British Government and the Constitution: Text and
Materials, 6th ed, Cambridge: CUP, 2007, p 707

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early return to civil rule. The Committee’s work was aborted by the promulgation
of the unification Decree, the Constitution (Suspension and Modification) (No. 5)
Decree No. 34 of 1966, which abolished the federal system and renamed the country
as the “Republic of Nigeria” while the regions became “Group of Provinces”. The
“return coup” of July 29, 1966 reversed all the steps taken towards unification and
set up a new constitutional process by convening an advisory ad hoc conference of
civilians. The outbreak of the 30-month civil war effectively terminated any idea of
constitution review.708 By the end of the war, the military had so much consolidated
its hold on government and found sufficient civilian (including legal) collaborators
that a constitution review process could not be put in place until some five years
later, after the tsar of the war (the apostle of “No winner, no vanquished”) had been
peacefully eased out in a palace coup that ushered in the Muhammed/Obasanjo
regime.
The mid-1970s constitutional re-engineering process began with the setting up
of a Constitution Drafting Committee (CDC) led by the doyen of the bar at the time,
Chief FRA Williams. Contrary to some previous analyses, the key recommendations
of the Committee as contained in the draft Constitution were not entirely the
products of the thoughts and beliefs of the 49 “wise men”. The Supreme Military
Council, through Brigadier Murtala Muhammed, specifically asked the Committee
to produce a Constitution that incorporates: a federal system of government based
on democracy and the rule of law guaranteeing fundamental human rights;
presidential system of government; nationally-based political parties; independent
judiciary; restriction on state creation; and establishment of Corrupt Practices
Tribunal and Public Complaints Bureau.709 Nonetheless, the Committee produced a
Constitution that was sought to be legitimised through a Constituent Assembly
established in August 1977.710 Even then, the Constituent Assembly did not enact
the Constitution but rather submitted it to the Supreme Military Council (SMC)
which unilaterally altered 22 provisions of the draft Constitution as approved by the
Assembly before promulgating it into law. The 1979 Constitution was therefore
defective in meeting the goal of autochthony as the basic criterion of a people’s
constitution. It was operated for barely a single term of four years.
The process that led to the 1989 Constitution was even more daring in fostering
on Nigerians the wishes of a cabal of military. Although a major beneficiary of the
long and windy transition programme severally manipulated to a desired end results

708
See: Billy J Dudley, Instability and Political Order: Politics and Crisis in Nigeria, Ibadan:
University of Ibadan Press, 1973
709
Hamalai and Bobboi, Vol V, p 46
710
Walter Ibekwe Ofonagoro, Abiola Ojo and Adele Jinadu, The Great Debate: Nigerian Viewpoints
on the Draft, Lagos: Daily Times of Nigeria, 1977

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that went awry,711 I found the transition to civil rule of the Ibrahim Badamosi
Babangida (IBB) regime the most audacious in the sense that little differences exist
between the 1979 and 1989 Constitution produced by a process that gulp so much
financial, human and materials resources but yet ended a total failure with the
annulment of June 12, 1993 presidential election.712 Rather than heal the wounds of
the Nigerian political and constitutional process, the IBB transition programme
aggravated them, in addition to monetising the political process, elevating the level
of corruption, debasing values and inviting a pariah status to a county that was
undeniably the giant of Africa. The process was a mere repetition of the 1977-1979
process, with ephemeral additions of phased implementation targeted at elongating
the tenure of a midwife that wasn’t prepare for an early and successful childbirth: A
Political Bureau for Nigerians to discuss the way forward for the polity; a
Constitution Review Committee (CRC), and a Constituent Assembly. The main
difference, which was the introduction of a two-party system, among other minor
additions, was dictated by the military rulers. Moreover, the Constituent Assembly
was handed a list of “no-go areas” and did little to inject the genuine wishes of
Nigerians into the new Constitution that, notwithstanding its promulgation as
Constitution (Promulgation) Decree No. 12 of 1992, was never really wholly
operated before the heavily manipulated transition programme collapsed into the
hand of a succeeding cabal, remnants of the old regime, that manipulated Nigerians
into a new constitution reform process.
Although a much more innovative instrument than its predecessor, the process
that led to the making of the 1995 Constitution lacked legitimacy ab initio. Rather
than hand over power to Bashorun MKO Abiola or convene a Sovereign National
Conference as demanded by Nigerians, General Sani Abacha hurriedly packaged a
transition to civil rule programme that was designed to result in his transmutation to
a civilian President. As part of a self-succession agenda, a Constitutional Conference
Commission was set up under Decree No. 3 of 1994 to organise a constitutional
conference. The 369-member National Constitutional Conference, inaugurated on
Monday, 27th June, 1994, had 12 members from each of the 30 States (9 indirectly
elected in a non-party election held on May 28 1994 but widely boycotted,713 and 3
nominated members by the Provisional Ruling Council (PRC), 4 representing the
Federal Capital Territory, 3 nominated members that represented special interests

711
Under the transition programme, I was a politically appointed Secretary to the Local
Government (SLG), Ejigbo Local Government, Osun State, from 20 th January 1991 to 17th
November 1993
712
Kokori, Frank, Frank Kokori: The Struggle for June 12, Ibadan: Safari Books, 2014
713
See: Falana, Femi, “The Nigerian Federation, the 1999 Constitution and Sovereign National
Conference”, in Path to People’s Constitution, Lagos: Committee for the Defence of Human Rights,
2000, p 133

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(NLC, NUT, NUNS714), a Chairman and a Deputy Chairman.715 The Conference,

chaired by Adolphus Godwin Karibi-Whyte, was inaugurated on 11th July 1994 and
submitted a draft Constitution on 7th June 1995. The Conference worked under a
freer atmosphere than the preceding Constituent Assembly, with no prepared draft
of a constitution, no “no go areas” and no limitation to any system of government.716
The Conference considered over 2000 memoranda, reviewed both the 1979 and the
1989 Constitutions, and produced a draft Constitution.
The 1995 draft Constitution adopted the presidential system but with some
innovative provisions that departed from the practices of the past: rotational
presidency between the North and the South, multiple Vice Presidents, local
governments as the third tier of government, and establishment of a Federal
Character Commission. The Conference also recommended revision of the revenue
allocation formula with 13% derivation, creation of additional states, establishment
of a National Reconciliation Committee, revision of the legislative lists to devolve
more powers to the States and local governments, creation of a National Judicial
Council, and establishment of a constitutional court. Some of the recommendations
also seek to modify aspects of the presidential system: proportional representation
of political parties in the cabinet, legislators appointed to cabinet positions to retain
their seats in the National Assembly, among others. However, to buy further time,
perhaps, the report of the Constitutional Conference was submitted to another 40-
man Committee for review. The Committee worked until 1997 but no report on its
assignment was made public before the death of General Sani Abacha.
The death of General Sani Abacha did not abort the transition to civil rule. The
short-lived government of General Abdulsalami Alhaji Abubakar simply set up a
24-member Constitution Debate Co-ordinating Committee (CDCC), chaired by Niki
Tobi, JCA, inaugurated on 11th November 1998 and mandated to coordinate debates
on the 1995 draft Constitution before making its recommendations. The Committee
called for memoranda, urged individuals and groups to organise workshops and
symposia, and held public hearings at 10 debate centres across the country and a
special hearing in Abuja. It received a total of 405 memoranda in addition to oral
hearings. It found many “compelling reservations about the 1995 Draft Constitution,
on account of its disputed legitimacy and authenticity, even while acknowledging
that it contained very important innovative provisions”.717 It therefore jettisoned it
in favour of the 1979 Constitution which was revised to include some provisions

714
NLC – Nigerian Labour Congress, NUT - Nigerian Union of Teachers, NUNS – National Union of
Nigerian Students
715
For a full list of the delegates, see: Ladi Hamalai and Hameed Bobboi (eds), A Century of
Lawmaking in Nigeria, Vol V: The Constitutional Conference Proceedings and Reports 1994-1998,
op cit, pp 16-26
716
For an appraisal of the Sani Abacha regime, see Kunle Amuwo, Daniel C Bach and Yann Lebeau,
Nigeria During the Abacha Years 1993-1998, IFRA-Nigeria, 2013
717
See Hamalai and Bobboi, Vol V, op cit, p 212

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from the 1995 draft Constitution. The military junta hurriedly promulgated the new
1999 Constitution it into law as Decree No. 24 of May 5, 1999. Thus, for lack of
time and resources, the process of making the 1999 Constitution fell grossly short
of the requirements for an autochthonous constitution, even by the standard of the
previous constitution making processes in Nigeria. It therefore lacked legitimacy
and fell short of the demands and aspirations of Nigerians at a time when the wounds
of the aborted June 12, 1993 presidential election were yet to heal. There were
intense and widespread criticisms of the processes of making and adopting the
Constitution which were a far cry from those of the previous constitutions, flawed
as they were, which involved drafting, debate, conference before approval by the
military authority.
It is clear from the above that the constitutional processes midwife by the
various military regimes (1975-1979, 1985-1999) were not transparent enough to
allow the overall wishes and interests of Nigerians to prevail above personal, class
and other sectional interests. The military interrupted the processes at every stage to
ensure that vested and entrenched interests were not threatened. Even when
constitutional conferences or constituent assemblies were convened, the
composition in terms of membership, the agenda and the final outputs were
manipulated. Never was the process allowed to evolve naturally without
intervention, thereby denying the Constitutions the quality of autochthony,
I make this submission fully conscious of contrary opinions on the military’s
handling of the constitutional review process in Nigeria. For Hamalai,

First, it is inevitable that the Military manages the constitutional development

process preparatory to transfer of power to a democratic governance.
Second, the constitutional development processes were inclusive given the
transparently established assemblies of representatives that considered and
approved draft constitutions. Third, the new democratic regimes were and are
at liberty to revise such constitutions handed down by military authorities”.718

While the first argument may confront us with a fait accompli, the second cannot be
true, given the ways the constitution making processes had been manipulated at
different stages and direct tinkling with the final documents before they were
promulgated into law. The last argument cannot be sustained given the inherent
difficulty of review deliberately built into the constitutional instruments, making it
difficult for the succeeding civilian rulers to reach consensus about fundamental
issues of governance afflicting the Nigerian state.

718
Hamalai, Ladi (ed), A Century of Lawmaking in Nigeria 1914 to 2014, Abuja: National Institute
for Legislative Studies (NILS), 2014, p 3

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2.4 Constitutional Reforms under the Fourth Republic

Scholars and observers alike are ad idem that the Constitution of the Federal
Republic of Nigeria, 1999 was not made for Nigerians by Nigerians. It isn’t a perfect
document and wasn’t expected to be so. At a time when the main preoccupation of
the people of Nigeria was how to resolve the political logjam attendant to annulment
of the June 1993 election, anything could go, at least to ease the military out of
power. Thus, once democratic rule returned, agitation for the “incurably bad” and
heavy faulted Constitution began. In response to the several and repeated calls for
its review, the new civilian government of Chief Olusegun Obasanjo set up a
Presidential Committee on the Review of the 1999 Constitution (PCRC), composed
of 24 members (eight nominees of each of the three political parties represented in
the National Assembly (PDP, NPP and AD)719, a Secretary and an Assistant
Secretary. It was inaugurated on October 19, 1999 and was chaired by Clement D
Ebri, originally the Deputy Chairman, who assumed the chairmanship position after
the resignation of Ambassador Yusuf Mamman. The Committee had the mandate to
collate the views of individuals and groups on, identify anomalies, irregularities and
defects in, and make proposals for review of the Constitution. Specifically, the
Committee was mandated to “address the lingering problems of power sharing” and
propose a review of the Constitution that “reflects the true experiences, wishes and
aspirations of the people” and make the Constitution “an expression of the will of
the people”. After sixteen months of intense work during which it perused about 3.5
million written and oral presentations, the Committee submitted its report and a draft
amended Constitution. The report identified key issues of concern in the
Constitution and made appropriate recommendations for review. While the report of
the Committee could not be taken as sacrosanct, it fairly presented a summary of the
major concerns of critical stakeholders. It is instructive to note that most of the issues
raised in the report were also identified at a two-day public hearing conducted by
the Senate sometimes in 2012,720 with notable additions of immunity clause, rotation
of executive offices and mayoralty status for the Federal Capital Territory. These
issues are adopted in this paper as guides for analysis of the subsequent attempts at
reviewing the Constitution. The table below summarises the key constitutional
issues and how far the country has gone in tackling them:

719
People’s Democratic Party (PDP), Nigeria People’s Party (NPP), Alliance for Democracy (AD)
720
See: Report of the National Public Hearing of the Senate Committee on the Review of the 1999
Constitution on the Proposed Further Alteration to the Provisions of the CFRN 1999, Held at the
Main Auditorium, ECOWAS Parliament, International Conference Centre, Abuja, on Thursday 11 th
– Friday 12th October, 2012

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Table: Key Issues for Constitutional Reforms in Nigeria, 1999 - 2020

S/N Key Issues PCRC Amendments
Recommendations Effected

1 Legitimacy of the - No need for Partly achieved

Constitution amendment but
expunge Decree No 24
of 1999
- NASS to promulgate
new amended
constitution

2 Supremacy/Defence of the - Amend Section 3 to No amendment

Constitution include a marginal note yet
“Defence” thereby
empowering Nigerians
to defend the
Constitution
- Remove ouster clause
in s 6(6)(d)
- Military coup to
become a treasonable
offence

3 Structure of the - Federal structure to No amendments

Federation/Political remain but with yet
Structure devolution of more
powers to States and
minimal powers to the
FG
- Amend Section 3(1)
which listed the States
- Provisions on state
creation to remain
- Geopolitical zones
encouraged but not as
constitutional structures

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4 Traditional Institutions - Amend Sections 153 No amendments

and 197 to create
constitutional role for
them
- Council of State to
include traditional
rulers

5 Public Revenue/Resource Increase derivation No amendment

Control and Derivation beyond 13% on all yet
Principle natural resources

6 Devolution of Powers Additional No amendments

responsibilities and yet
more revenue for States
and LGs

7 Local Government - State to continue to Partly achieved

Autonomy legislate on LGs with stilted
implementation
- LGs as separate tier process
- Direct disbursements
to State Joint LG
Account

8 Religion/Secularity of the - Secularity sustained No amendment

State yet
- “Personal” as it relates
to Islamic Law under
Section 277 to be
deleted

9 Legislative/Executive Section 315 breaches No amendment

Relationship separation of powers; to yet
be amended

10 Women’s - Replace Federal No amendments

Rights/affirmative action Character Commission yet
with Equal Opportunity
Commission with
expanded mandate

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________________________________________________________________

- Women to assume
state of origin of their
spouses

11 Human Enhanced Partly achieved

Rights/Socioeconomic independence in through the
Rights & Status of the human, financial and NHRC Act
National Human Rights material resources
Commission

12 Judicial Power and - Decentralise judicial No amendments

Independence; Federal powers yet
Control of State Judicial
Institutions and - State and Federal
Appointments High Courts to exercise
concurrent jurisdiction
on items in Section
251(1)(a-s)

13 Status of the FCT - Excision of some No amendments

LGAs from the FCT, to yet
be merged with other
States
- FCT as a home for all

14 Anti-Corruption and Strengthen anti- Partially achieved

Transparency corruption institutions through EFCC
and ICPC Acts

15 State Police and Public No need for Agitation

Order amendment continues

16 Political party System; No need for Agitation

Registration of Political amendment continues
Parties

17 Land Use Act No amendment Agitation

continues

18 Tenure of Elective Single five-year term No amendment

Officers with non-consecutive yet
2nd term

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________________________________________________________________

19 National Conference; - National (but not Agitation remains

Cumbersome Constitution sovereign) conference in limbo
Amendment Process desirable, to approve
recommendations for
constitutional
amendment
- No need for
referendum

The report of the Presidential Committee was submitted to the National Assembly
which set up an ad hoc Joint Committee on the Review of the 1999 Constitution.
The Joint Committee led by Senator Mike Ajegbo worked in collaboration with the
Conference of Speakers of State Houses of Assembly in order to afford a ceaseless
process. The NASS Committee met with Speakers in their various States and later
held joint meetings with their representatives.721 The outcomes couched as
recommendations for submission to the two Houses of the NASS included: Local
governments to remain the exclusive responsibility of the States, self-accounting
status for State Houses of Assembly, power of the legislature to sanction Ministers
and Commissioners, removal of the power of the President/Governor to modify
existing law under section 315, and devolution of some specific powers to the states,
among others. However, the Constitution (Amendment) Bill, 2002 failed to scale
the constitutional due process. The process was aborted when the National
Assembly purported to pass a Bill to extend the tenure of functionaries of local
governments, upon which the State Houses of Assembly engineered recourse to the
court of law by the States.722 The case was decided in favour of the State
governments in 2004, by which time the life of the 4th Assembly (1999-2003) had
lapsed. Other factors conspired to consign the PCRC’s recommendations to the
dustbin of history.
Notwithstanding the initial setbacks, the constitution review process resumed
during the life of the 5th Assembly. The President had on 21st February 2005 set up
a National Political Reform Conference,723 after which a Bill for an Act to Amend
the Constitution of the Federal Republic of Nigeria was submitted to the National
721
I participated in the process as the Speaker of the Osun State House of Assembly, May 1999 –
May 2003
722
Alabi, Mojeed Olujinmi A, “Federal-State Relations in Nigeria: Judicial Interpretation”, in
Emmanuel O Ojo (ed), Challenges of Sustainable Democracy in Nigeria, Ibadan: John Archers,
2006, pp 235-245
723
National Political Reform Conference, Abuja 2005, Abuja: Federal Republic of Nigeria, 2005

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Assembly. However, the issue of tenure elongation for the President ahead of the
2007 election shrouded the process in great controversies. The “third term agenda”,
aggravated by internal rifts within the presidency, made the NASS to negative the
Constitution of the Federal Republic of Nigeria 1999 (Amendment Bill) 2006 after
days of intense debates at the Second Reading.724
The third (and the first concluded) attempt to alter the Constitution began in
2009, the work of a Joint Committee inaugurated since June 2007 having been
delayed by leadership tussle.725 The unique feature of the process this time around
was that the Senate held a 3-day National Public Hearing in Abuja (13th-15th October
2009) and zonal hearings in the six geopolitical zones. The reports were collated and
submitted in plenary piecemeal in March,726 October and November 2010, while the
exercises were completed in 2011. The first of the three alterations centred mainly
on strengthening the Independent National Electoral Commission (INEC) ahead of
the 2011 general elections by granting the body administrative and financial
autonomy, making provisions for independent candidacy, and precluding tenure
elongation.727 Further amendments were passed in October 2010 to enable the INEC
conduct elections earlier than previously allowed, facilitate smooth succession to
executive powers to the Vice/Deputy in case of long absence of the President or
State Governor, and extend appeals on gubernatorial election petitions to the
Supreme Court of Nigeria.728 The third alteration of November 2010 centred only
on establishment of the National Industrial Court. 729
The success recorded by the 6th NASS, perhaps, justified the piecemeal
approach. As Ekweremadu and Amucheazi submit,
In the absence of national consensus on many of the aforementioned issues,
the National Assembly has opted for a piecemeal or incremental, rather than
wholesale or mega-constitutional, approach to constitution review”.730

724
See: 5th National Assembly Third Session No 90, Senate of the Federal Republic of Nigeria,
Votes and Proceedings, Tuesday, 16th May, 2006
725
See Kabir Mato, ”Deepening Democracy through Constitution Review: An Appraisal of the
House of Representatives”, in Ladi Hamalai (ed), op cit , pp 298-299 292-313
726
A Bill for An Act to Alter the Provisions of the CFRN 1999 and for Other Matters Connected
Thereto
727
The Constitution of the Federal Republic of Nigeria (First Alteration) Act, No 5 of 2010, signed
into law by the President on 10th January, 2011
728
A Bill for an Act to Alter the Provisions of the CFRN, 1999 and the Constitution (First Alteration)
Act No. 5, 2010 and for Related Matters
729
A Bill for an Act to Amend the Constitution of the Federal Republic of Nigeria, Cap C23 Laws of
the Federation of Nigeria 2004 for the Establishment of the National Industrial Court by the
Constitution, 2010 // The Constitution of the Federal Republic of Nigeria (Third Alteration) Act,
2010, signed into law on 4th March 2011
730
Ekweremadu, Ike and Offornze D Amucheazi, Constitutional Review in an Emerging Democracy:
The Nigerian Experience, Glassboro, NJ: Goldline and Jacobs Publishing, 2015, p 135

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The approach, indeed, permitted progress on non-controversial issues, to which the

State Houses of Assembly (minimum of 24), by their separate resolutions,
concurred. Expectedly, these amendments had little effects on resolution of the
contentious constitutional issues that threatened and are still threatening the
corporate existence of Nigeria.
The 7th National Assembly, encouraged by the success of the 2010-2011
exercises, started the constitution amendment process early in its term. Within the
first sixteen months,731 the Senate had held national zonal hearings on proposals for
further review of the Constitution. The House of Representatives followed with
People’s Public Sessions in all the 360 Federal Constituencies in June 2013 in all
the 360 Federal Constituencies in Nigeria.732 Later, the House in plenary voted
overwhelmingly in favour of alterations bothering on creation of states, inclusion of
socio-economic rights as fundamental rights, financial autonomy for State Houses
of Assembly, direct allocation to Local Government Councils, local governments as
third tier, denial of revenue allocation to unelected Local Government Councils,
tenure of local government functionaries, abolition of the State Independent
Electoral Commissions, independent candidacy, rights of the disabled, electoral
reforms, judicial reforms for speedy dispensation of justice, separation of offices of
the Attorney General and Minister of Justice, and direct report of the Revenue
Mobilisation, Allocation and Fiscal Commission to the National Assembly. (one of
them presided over by me at the instance of the Honourable member representing
the seat I now occupy today at that time). The ensuing Bill sought inter alia to make
provisions for: adequate time for conduct of a re-run election and conferment of
exclusive jurisdiction on the Federal High Court on the violation of the Electoral
Act and other election related Acts of the National Assembly; Independent
Candidacy; structural and financial autonomy for local government councils;
separation of the Office of the Attorney General from that of the Minister of Justice;
first line charge on the Consolidated Revenue Fund of the Federation for certain
Agencies.733

Consultations were also made with the State Assemblies, which concurred with the
harmonised version of the Senate and the House of Representatives Bills except in
areas relating to matters pertaining to granting of separate status to local
governments. The exercise, however, suffered a major setback. In the words of
Yakubu Dogara,

731
Precisely on 11th-12th October 2012
732
On the invitation of the sitting Honourable, Barrister Tajudeen Adetunji Ajagbe, I presided over
the session held in Ede North/Ede South/Egbedore/Ejigbo Federal Constituency
733
See the “Explanatory Memorandum” at the end of A Bill for an Act to Further Alter the
Provisions of the Constitution of the Federal Republic of Nigeria 1999 and for Other Matters
Connected Therewith 2014

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________________________________________________________________

The 4th Alteration Act was successfully carried out at the level of the National
Assembly and the State Houses of Assembly by the 7th Assembly (2011-
2015),but was unfortunately not assented to by the then President Goodluck
Ebele Jonathan, GCFR.734

Apart from withholding assent after losing the 2015 Presidential election, President
Jonathan had, a year earlier,735 belatedly convened a controversial 492-man
Constitutional Conference, chaired by Justice Idris Legbo Kutigi, which submitted
its report in August of the same year. The manner of selecting delegates to the
Conference raised some eyebrows; and its report was dead on arrival.
The process of constitution amendment in the 8th NASS differed markedly
from the previous exercises.736 Determined to record another success, the Joint
Committee was immediately reconstituted, expected to collate proposals and
submissions and make appropriate recommendations. However, debates on the
various motions for amendments of different sections of the Constitution were
deferred by the presiding officers, ostensibly to fast track the process, on the
understanding that report of the Joint Committee would be debated before any
ensuing Bills would be passed. Unlike the previous exercises, no public
hearings/sessions were held. Rather, the Committee organised a retreat for its
Members in Abeokuta, Ogun State, whereat all memoranda, proposals and
submissions were allegedly considered and a report with draft bills on the various
proposed amendments prepared for submission to the House. While consideration
of the report and the bills sailed through the Senate without hit, the decision by
Speaker Dogara to have the Bills voted upon without debate was vehemently resisted
by some Members, led by me.737 We insisted that since the debates were not allowed
on the alteration motions and the Joint Committee did not conduct any public
sessions, the issues raised in the proposed amendments should be thoroughly
debated before voting. Frustrated by insistence of the Speaker, we requested that
Members be given about four days to read the report and consult with their
constituents before voting could take place. After about an hour delay, the opposing

734
http://www.premiumtimesng.com/news/top-news/197143-house-of-reps-inaugurates-
constitution-review-committee.html, accessed 26/04/2017
735
Precisely in March 2014
736
Although a Member of the 8th NASS (2015-2019), I was not included in the Joint Committee on
Constitutional Amendment as advocacy for a Sovereign National Conference were considered
“too radical” by the leadership
737
https://dailynigerian.com/rowdy-session-in-house-over-constitution-review/ accessed
03/07/2020

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views were overruled, and the Speaker called for a division on each of the alterations
proposed.738

3.0 C ONS T I T U T I ON A L C HA N GE : N OT Y E T U HUR U 739

Our exposition so far reveals no major constitutional change in Nigeria beyond
the shift from a parliamentary to a presidential system in 1979. Colonial rule and
military dictatorship largely constrained the germination of a genuinely
autochthonous constitution. While eleven constitutional processes have been
conducted in post-independence Nigeria, no major structural changes could occur in
the light the stringent provisions on amendment in the successive Constitutions. My
doubt on the potency of an amendment was expressed some 20 years ago when, as
a presiding officer of a state legislature, I challenged the visiting National
Assembly’s ad hoc Constitution Review Committee (led by Dr Wahab Dosunmu)
on whether such issues that border on the national question in Nigeria740 - true
federalism, resource control, state police, etc – could get consensus of two-thirds
majority votes of each of the two chambers of the National Assembly and
concurrence of at least 24 of the 36 State Houses of Assembly. The answer was a
resounding “NO”.741 We reasoned together that the framers of the Constitution did
not intend that any amendments be successful. We also reminded ourselves that
certain developments in the country would not permit a major constitutional change.
We disagreed, however, on whether the National Assembly as composed could give
Nigerians the Constitution they desired.
My “radical views”742 on the way to a genuine constitutional re-engineering of
the Nigerian state were carried to the Conference of Speakers of State Houses of
Assembly, for which reason, perhaps, I could not represent the South West
geopolitical zone in a committee set up to work with the National Assembly on the
constitutional review process. For the same or similar reason, perhaps, I was one of
the two nominees of the Government of Osun State Constitutional Conference
(CONFAB) convened in 2014 that were replaced by the Federal Government of

738
For a full list of the alterations as passed by the Senate, see PM News story of Thursday, July
27, 2017 - https://www.pmnewsnigeria.com/2017/07/27/full-list-constitutional-amendments-
senate/ accessed 07/072020
739
This is the Swahili word for “Freedom”.
740
NPSA proceedings
741
For the official position of the Government of Osun State, see
https://allafrica.com/stories/200103010271.html
Accessed 03/07/2020
742
I was forced to withdraw the use of the words “Sovereign National Conference” during
debates… See

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President Goodluck Jonathan.743 My position was and has remained that the billions
of Naira, time and other resources expended on constitutional amendment processes
have not produced the desired results. Even those in the forefront of the constitution
amendment process have similar views on this. Thus, a veteran of the constitutional
amendment process of the last 20 years, Ike Ekweremadu, the Deputy President of
the Senate and Chair of the Joint Committee for several years, conceded that the
various exercises have “failed to address the critical issues plaguing the nation”.744
In fact, of the 12 contentious issues identified by him – the federal structure, fiscal
federalism, local government, policing, legislative lists, INEC and other oversight
agencies, election/electoral systems, governmental systems, tenure of political chief
executives, residency rights, presidential assents, constitution amendment process
itself,745 less than 25% are near being authoritatively resolved. Overall, while the
NASS sought to demonstrate “inclusivity, participation, diversity, autonomy,
transparency/openness, accountability and legitimacy”746 in its constitutional reform
agenda, reality constrained it to take a middle course. The attendant alterations have
not really produced a constitutional change. There is nothing to suggest that the
ongoing exercise by the 9th National Assembly would be different.

4.0 T RAI L I N G A P A T H U N K N O W N
It is apt to ask the question why notwithstanding sustained constitutional
review processes in Nigeria, such critical issues of importance as true federalism,
resource control, political restructuring, revenue allocation, state police, etc have
remained intractable, placed high on the agenda of each constitutional review
process but left largely unresolved two decades after continuous democratic rule
with billions of Naira in financial, human and material resources going down the
drains and still counting? Pontificating on this question, I found a big void in our
constitutional reform processes, which have been shown in this paper to lack
autochthony. A constitution should reflect the collective will of the people and not
that of any dominant segment of them. In Nigeria, the constitutional processes have
at various times reflected the will of the colonial masters, the military rulers or the
dominant political class, the latter acting on its own whims and caprices to make
ephemeral changes to the Constitution in the guise of constitutional amendments.
The little measure of success recorded was a product of the determination of the

743
The second nominee so dropped and replaced with other delegates loyal to the government
was Dipo Famakinwa of the Development Agenda for Western Nigeria (DAWN). For the list of the
original nominees from Osun State, see the Vanguard newspaper story of February 27, 2014
https://www.vanguardngr.com/2014/02/akinrinade-leads-5-osun-delegates-confab/ accessed
03/07/2020
744
Ekweremadu and Amucheazi, p.2
745
Ibid pp 120-133
746
Amucheazi, Offornze, “Creating a Durable Constitution: Perspective of the Senate Constitution
Review Committee”, in Ladi Hamalai, op cit, p 281-284

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leadership of the National Assembly to at least do something rather than nothing by

making cosmetic changes. Yet, the essence of a constitution review is to raise and
resolve fundamental issues of governance. To this extent, the constitutional reform
processes have largely failed. In the circumstances, my prescription is to trail a new
path to constitutional re-engineering by giving the idea of a sovereign national
conference the deserved trial.747 The modalities for convening such a conference has
no doubt been shrouded in controversies, a thread that is outside the scope of this
paper. The position canvassed in this paper is that the constitutional process must
start and end with the people without the necessity of submitting the end product to
any other person, authority or body other than the people themselves through their
accredited representatives assembled for that sole purpose. The current national and
state legislature are ill-equipped to undertake this task because they have not been
constituted for the purpose of bringing about constitutional changes but rather to
“make laws for the peace, order and good government” of Nigeria748 within the
existing constitutional framework. Only a constitutional conference specifically
convened can serve such a purpose. The conference has to be sovereign because64
the implication of subjecting the final product of its work, that is, a draft
constitution, to anybody or authority other than the people would be to deny it an
opportunity to meet the important criterion of autochthony, which is essential for its
legitimacy. I have no problem with the position of my colleagues at the NASS that
“as elected representatives of the Nigerian people, the Assembly has the power to
review and amend the Nigerian Constitution”.749 My position is that Nigeria does
not need an amendment of the present Constitution, which have been widely
accepted and shown in this paper to be irrelevant to resolving the structural issues
of imbalance, resource allocation and true federalism. I insist that Nigeria needs and
must earnestly trail the path to true constitutional re-engineering by embracing a
Sovereign National Conference.

747
On this, I have been greatly influenced by Gani Fawehinmi, A Call for Genuine Sovereign
National Conference: An Alternative to Chaos, Catastrophe and Disintegration: Text of a Press
Conference, National Conscience Party, 2000
748
Constitution of the Federal Republic of Nigeria 1999 – Section 4(1)
749
Ekweremadu and Amucheazi, p 36

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