by Legalnaija | Sep 11, 2020 | Uncategorized
INTRODUCTION
The Oil and Gas sector of the Nigerian
economy has hitherto, remained the mainstay of the country’s capital value chain
and the most remarkable component of our National Gross Domestic Product. Given
this incontrovertible fact, it has therefore become highly imperative that the
Act be revamped and its provisions brought into compliance with international
industry best practices while still preserving its core objective, which is
provision for the development of Nigerian Content in the Nigerian Oil and Gas
Industry by encouraging participation of Nigerians.
Before the National Assembly, is a
Bill to amend the Nigerian Oil and Gas Industry Content Development Act, 2010,
properly short cited as the Local Content Act (the “Act”). The Act which is
composed of 106 Sections is sought to be amended by the Nigerian Oil and Gas
Industry Content Development (Amendment) Bill, 2020 (HB.838) (the “Bill”). The
move to amend the decade-old Act sprang out of the pressing need to address
certain salient issues which have been either neglected or improperly captured
in the legislation. In a bid to prevent
the enactment of provisions considered inconsistent with the mandate and true
spirit of the Act, the Bill seeking to usher in these amendments has thus, been
subjected to rigorous legal scrutiny to capture enlightened viewpoints that
will allow the fulfilment of its objects before it ascends into law. This paper
is focused on some provisions of the Bill we believe needs to be addressed.
THE
NEED TO DEFINE NIGERIAN INDIGENOUS COMPANIES: FUNDAMENTAL ROLE IN THE
DEVELOPMENT OF NIGERIAN CONTENT
The mandate of the Nigerian Oil and Gas Industry Content
Development Act is primarily to provide for the development of Nigerian
Content in the Nigerian Oil and Gas Industry by encouraging participation of
Nigerians. Indeed, the true measure of the success of content development in
Nigeria is in the amount and complexity of works and role played by Companies
wholly owned and managed by Nigerians, whose focus is on developing
Infrastructure and Technology in Nigeria, thereby encouraging profits to be
retained and reinvested into our economy. Consequently, these Companies are
building and developing capabilities towards ultimately exporting Nigerian
products and services, rather than relying on importation, which is an absolute
characteristic of a Nigerian Indigenous Companies.
The focus of the Act
primarily is on Nigerian indigenous companies. Therefore, any amendment to the
Act must be to protect and encourage an environment for exponential increase in
their numbers and rapid growth in size, so as to pull along the Nigerian
economy. Just as the most developed Oil and Gas countries have done, they have
prioritized the interests of indigenous companies by enacting laws that will
foster and encourage their participation on the sector that is driving their
economy. The glass ceiling which is preventing our economic growth will go away
when we prioritize indigenous companies in the dealings of the sector that
corners us the most revenue annually.
The Act has fallen short of providing
a comprehensive definition as to what constitute the entities regarded as “Nigerian Indigenous Companies”, rather it
resorted to using terms such as “Nigerian
Independent Operators” and “Indigenous
Service Companies” in making reference to exclusive and first consideration
to Nigerians as stipulated in the Act. Furthermore, Section 106 (interpretation Section), defines “Nigerian Companies” thus:
“A company formed and registered in Nigeria in accordance with the
provision of Companies and Allied Matters Act with not less than 51 % equity
shares by Nigerians”.
A cursory study of judicial
pronouncements on the definition of what constitutes a Nigerian Company, will
reveal that the meaning provided by the Courts over time, appears to be at a
sharp variance with what the Act envisages, which apparently allows room for
foreign ownership of equity shares in a company considered Nigerian. A
classical case in point, is SIKIRU AGBOOLA LASISI v. REGISTRAR OF
COMPANIES [I176] LPELR-SC.301/1975, where the Supreme Court laid down
the correct test for determining whether a company is a Nigerian association or
not, in these words:
“It is clear from the definition under
Section 16(1)(c) of the Nigerian Enterprises Promotion Decree, 1972 that the
correct test for determining whether a company is a Nigerian association or not
is to discover the owners of its capital and other financial interests. If its
capital and other financial interests are wholly and exclusively owned by
Nigerian citizens, then it is a Nigerian Association. If, however, a portion of
its capital or other financial interest is owned by an alien then, except as
otherwise prescribed by or under the Decree, it is an alien association”. (Underlined
is ours for emphasis).
The Act having defined the term
Nigerian Company makes no further mention of a “Nigerian Company” at all, rather it resorted to various vague variations; “Nigerian Indigenous Operator”; “Nigerian Indigenous Service Companies”;
“Nigerian Indigenous Contractors”; “Nigerian Contractors and Service or
Supplier Companies”, and “Indigenous
Companies” to reference sector participants contemplated under each
relevant provision. Although, the Act has implicitly substituted the term “Nigerian Company” with the
above-mentioned phrases, it nevertheless still intends for the word “indigenous” to remain in the Act so as
to portray its very meaning and objective.
The ambiguity created by the above mentioned words has opened the
provision to different constructions, with stakeholders having to rely on the comprehension
of industry best practice or formally recurring to the interpretation of the Nigerian
Content Development and Monitoring Board (the “Board”) in line with S. 70(1) of
the Act, which permits the Board to “provide
guidelines, definitions and measurement of Nigerian Content and Nigerian
Content Indicator to be utilized throughout the Industry”.
The Bill attempts to cure this ambiguity by proposing to replace
the terms “Nigerian Independent
Operators” with “Nigerian Companies”,
and “Nigerian Indigenous Service
Companies” with “Nigerian Service
Companies”. Regrettably, this has failed to fix the uncertainty occasioned
by the Act, instead, it moved further away from the purpose the Act is designed
to attain, which is the exclusive consideration and participation of Nigerians.
Hence, the proposition by the Bill to erase outright, the term “Indigenous”, nullifies the true meaning
and intention of the Act.
Undoubtedly, what gauges the achievement of content development in
Nigeria and especially in the oil and gas industry, rests on the intricacy and
aggregate of works done and the contributions made by Nigerian domestic
companies concerned with the development of infrastructure, technology and
building galvanized human capacity in Nigeria, thereby assuring the reflow,
retention and reinvestment of profits in our economy. Accordingly, these
Companies are forming and expanding the required competence geared towards the
ultimate exportation and transatlantic
trading of Nigerian goods and services, in place of protracted dependence on
importation, which typifies the precise features of Nigerian Indigenous
Companies.
A brief study of some oil producing countries shows how their
Local Content Laws focus on participation of its citizens in the Oil and Gas Sector
and have reflected same in their laws. We can take a cue from our sister
nation, Ghana, having passed a
similar Law three years after the enactment of the NOGICD Act. The Petroleum (Local Content and Local
Participation) Regulation, 2013 (Ghana), passed in 2013, was enacted with
the purpose of enhancing the capacity of indigenous Ghanaian companies and to
promote their participation in the Oil and Gas Industry.
Regulation 49 of the country’s Petroleum (Local Content and
Local Participation) Regulations, 2013, defines an “indigenous Ghanaian Company” as
“A company incorporated under the Companies Act, 1963 (Act 179)
that: a) has at least 51% of its equity owned by a citizen of Ghana; and b) has
Ghanaian citizens holding at least 80% of executive and senior management
positions and 100% of non-managerial and other positions”.
Similarly, resource rich countries;
Kuwait, Qatar, Saudi-Arabia and the United Arab Emirates (UAE) etc. also focus
on local content requirements to maximize the gains of foreign participation in
their Oil and Gas Sectors. The aim is to provide opportunities for local
industries to participate in Oil and Gas activities. Although, several of these
countries do not exactly define the term “local” in their Local Content
Regulation (LCR), generally it means; nationals, and companies owned, or
majorly controlled by nationals.
It is owing to this prevailing reason, that Nigerian Indigenous
Companies must assume a central place within the covers of our Local Content
Act. Therefore, any amendment to it must be anchored on providing and
encouraging an atmosphere for a flooding increase in their numbers and rapid
growth in sizes, in order to redefine the Nigerian economy.
This work recommends that the term “indigenous” be retained and
consequently, the interpretation Clause of the Bill should interpret “Nigerian
Indigenous Companies” to mean;
“A company with
100% equity and assets owned by Nigerian Citizens with its head office/parent
company located in Nigeria”.
It is only a clearly worded and purpose-driven definition of this
kind that can adequately foster the existence of a truly Nigerian Indigenous
Company and guarantees an all-round local content development in our dear Oil
and Gas Sector.
INCREASE OF
PERCENTAGE TO BE CONTRIBUTED TO THE NIGERIAN CONTENT DEVELOPMENT FUND
The
Act makes provision for the establishment of a Nigerian Content Development
Fund (the “Fund”) under Section 104(1),
for the purposes of funding the implementation of Nigerian content development
in the Nigerian Oil and Gas Industry. In other words, it is provided to ensure
the absolute achievement of the goal for which the Act was enacted in the first
place.
Having
so established the Fund, Section 104(2)
of the Act further categorically spells
out the major source from which the fund will be generated and placed at 1%
deductible at source, of every awarded contract to any of the listed entities
who are concerned with all the goings-on in the Upstream Sector of the Nigerian
Oil and Gas Industry, to be paid into the fund. This arrangement has worked
perfectly well for the fund itself and provided a considerable measure of ease
to all concerned parties in the undertaking of their business operations within
the spheres of the industry.
Conversely,
the Bill by virtue of a new Clause 105
(2) proposes a coinage of this provision, such that the major source of the
fund will now be derived from the deduction of 2% at source of every contract
awarded to any operator, contractor, subcontractor, alliance partner or any
other entity involved in any project, operation, activity or transaction in the
Upstream Sector and designated Midstream and Downstream projects operation of
the Nigeria Oil and Gas Industry, which is to be paid into the fund.
Flowing
from the foregoing is the overt fact that, while the initiative to extend the
spectrum of application of this provision by the Bill to include “designated Midstream
and Downstream projects operation” is by far a commendable one, as it will
automatically open the floodgate of more income pooling into the fund and in
turn, speed up the implementation of content development in the industry.
However, an increase in the contributory funds from 1% to 2% of every contract
awarded, is outrageous and can be regarded as double taxation on so many
levels. It can be argued that the sector is indeed already significantly
overburdened by a plethora of levies and fees; Education tax, Nigeria Police
Trust Fund (NPTF) levy, Nigerian Capital Development Fund (NCDF) Levy, Niger
Delta Development Commission (NDDC) Levy, Nigerian Export Supervision Scheme,
and Offshore Safety Permit, others include Cargo & Stevedoring Dues, Waste
Reception Facilities Levy, Value Added Tax among others, and the proposed
minimum of 0.5 per cent of participants respective gross revenues for Research
& Development (R&D) activities in Nigeria. Industry Stakeholders have
expressed concern that any additional financial imposition as proposed by the
Bill on the industry, will very negatively impact Nigeria’s competitiveness and
affect the viability of projects and investments.
It is a bit alarming that while the Government
seems to want to
achieve lower costs, it is imposing
multiple taxes and levies. This is without consideration for high security
costs, assets fixing and environmental remediation costs, that follows asset damages. The Government is expected to support the
industry to remain a viable partner for the economic development of Nigeria and
not impose unnecessary burden.
In
addition, an increase to 2% smacks of unaccountability, given that there are no
detailed developmental returns on previous contributions to the Fund, published
by either the Board or any other responsible regulatory body. It then becomes
valid to recommend that contributions be retained at 1% as provided in the Act.
APPLICATION
OF THE NIGERIAN CONTENT DEVELOPMENT FUND
Unequivocally, the landmark success in the Nigerian economy over the breadth of
the last decade is attributable to the enactment of the Nigerian Oil and Gas
Industry Content Development Act. The
proposed amendment, which is channeled along the lane of enhancing better
participation of Nigerian citizens, rests on how the industry, local businesses
and state institutions create the needed synergy to overcome the obstacles
militating against the actualization of local content opportunities. `
Clause 105(3) of the Bill provides that;
“The Fund shall be managed by the
Nigerian Content Development and Monitoring Board and employed for projects,
programmes, and activities directed at increasing Nigerian Content in the Oil
and Gas Industry.”
While it can be argued that the
reasoning behind the above clause is progressive, however, it has merely
replicated the provision of the same clause it seeks to substitute, which fails
to address the evident flaw in the application of the fund.
The resources released for funding by
the Board is commendable in most cases but usually are totally insignificant
for some projects. Bringing into account the yearly generated revenue of the
Board, which is earmarked at $360 million from commercial ventures for the year
2020 alone,
it will be most ideal to allocate a percentage of the yearly generated revenue
to the advancement of indigenous companies; large projects, laudable
programmes, capacity building solutions, activities and services of robust
advantage to indigenous companies from whose operations the source of the
generated fund is derived.
Therefore, in order to realize and meet the full objectives of the Fund, for the purpose of
unceasing advancement in the Sector, at least one major project considered
instrumental to the exponential expansion of indigenous companies should be initiated
and executed in the industry, every fiscal year. Thus, not only would it be
highly profitable to set aside a minimum percentage of the total generated
contribution to be spent on projects each year, but it will also prepare the
fertile ground for the acceleration of these companies into the league of their
counterparts with multi-national repute, the economy will be better enriched,
and the multiple returns can then be directed towards stretching the boundaries
of research and development in the industry and even ultimately financing the
process of diversifying into and promoting other sectors in the not too long
run.
Similarly, the Board
should through the Fund, provide
low-Interest Loans to Nigerian Indigenous Companies operating in the Upstream
Sector, to enable them deliver services at competitive pace, intentionally proceed on ceaseless capacity building programs for local
companies in order to both build and boost the right structures to enable them
compete favorably in the Industry, ensure effective enforcement of the
Act to enhance in-country value creation, retention, reinvestment, and
generation of employment for Nigerians
across the Industry value chain, especially at such a time when the revenue
accruable to the Federal Government from other key sectors of the economy is
degenerating at an alarming rate.
Suffice it then to assert that, the provision of Clause 105(3) is
the key to attaining all of these promising potentials which the whole
amendment process portends for the Oil and Gas industry in particular and the
economy as a whole, only if it is redrafted to encapsulate the pertinent
enabling words in the manner described hereafter:
“The Fund shall be managed by the Nigerian Content Monitoring
& Development Board, and 50% of the total generated fund thereof shall be
employed for projects, programmes and activities beneficial to Nigerian
Indigenous Companies and directed at increasing Nigerian content in the Oil and
Gas Industry”
The Local Content Development Fund can only serve its true purpose
if applied to the right course, and the Act must state this in no uncertain
terms.
CONCLUSION
The Bill cannot afford to reenact the
shortcomings it is meant to eliminate. It is therefore required at this crucial
moment for our Legislators to ensure that the Bill underway, is cleared of all
the ambiguities, irregularities, and shortfalls replete in the subsisting
principal Act. A carefully thought amendment of the Act is vital to crystalize
the core intentions of the initial drafters of its letters. While this is being
done, we must balance the interests of the stakeholders in the sector. An
increase in the contributory funds will be burdensome on the already over taxed
stakeholders.
Damilola
Vordah Imong is with Messrs O. M. Atoyebi, SAN
& Partners (OMAPLEX LAW FIRM) where she works in the Corporate and
Commercial Department of the Firm. She has an in-depth understanding of the Oil
& Gas and Energy Sector and has worked with various key industry
stakeholders and facilitated several transactions.
by Legalnaija | Sep 8, 2020 | Uncategorized
There is some confusion
amongst human resources professionals and in-house counsel about the validity
and effect of an employee’s notice of resignation that is short of the period
agreed in the employment contract. Corollary to the foregoing is the issue
regarding whether an employer can reject an employee’s resignation letter for
any reason, including ongoing investigations or disciplinary proceedings
against the employee or inadequacy of the length of notice or other reasons of
the employee’s non-compliance with the employment contracts. In practice, many
employers include the power to reject an employee’s resignation letter in their
#HR policies or Employee Handbook without seeking legal advice on the propriety
of such power.
In law, every employee has
absolute right to resign at any time before termination of, or dismissal from
an employment. An employer has no discretion on whether to accept or reject a
resignation letter. Also, it is immaterial that the employer did not issue a
formal reply or acceptance of the resignation letter. The Courts have held that
all the employee needs to show is that the employer received the resignation
letter and that a rejection letter or email from an employer is an evidence
that the employer received the resignation letter. Whether the length of notice
of resignation is adequate or inadequate, once an employee indicates an
intention to leave an employment, any attempt by an employer to reject that
move or hold the employee down would amount to forced labour and would be
contrary to all known labour standards. In fact, the Court in Taduggoronno
v. Gotom [2002] 4 NWLR (Pt. 757) 453 CA specifically held that no
employer can prevent an employee from resigning from its employment to seek
greener pastures elsewhere.
The only point that needs to
made separately, in addition to the above, for emphatic purpose, is that an employer
cannot dismiss or terminate the employment of an employee who has given a
notice of resignation, notwithstanding the fact that he remains with the
employer during the notice period. This is because a notice of resignation
takes effect from the date it is received by the employer, not on the last
working day as erroneously believed by some employers who still engage in
post-resignation termination or dismissal.
What then is the
effect of inadequate notice of resignation? The
courts have held in Adetoro v. Access Bank Plc and many
other similar cases that where the length of notice of resignation given by an
#employee is less than the period agreed in the employment contract, then, the
notice is deemed to be with immediate effect. So, where, for instance,
the contract provides for termination or resignation by one (1) month’s notice
or salary in lieu, any notice that is short of the agreed period
will amount to RESIGNATION WITH IMMEDIATE EFFECT.
In law, the implication of
“Resignation with immediate effect” vary, depending on whether
the reason for exiting a company is #resignation or #retirement. Resignation
with immediate effect gives the employee the right to leave the employment
immediately and automatically, without any benefit and subject to the employee
paying his outstanding indebtedness (if any) to the employer. Please note that
the fact there is an outstanding indebtedness owed to the employer does not
entitle the employer to insist that the employee must continue to work for the
employer. It merely gives the employer the right to enforce its contractual
right to recover the amount owed. Retirement, however, does not appear to
confer on a retiring worker such a right to leave service immediately and
automatically. In OSHC v. Shittu [1994] 1 NWLR (Pt. 321) 476 CA,
the Court of Appeal (Benin Division) opined that a notice of voluntary
retirement does not entitle the employee to leave the employment immediately or
automatically, and that he or she would still remain in the employer’s service
(especially where the notice is rejected by the employer and the employee
returns to work).
In that case, the employee
submitted his resignation with immediate effect and paid one month’s
salary in lieu of notice. The #employer rejected his
resignation and directed him to return to work immediately, to which the
respondent responded by another letter, wherein he maintained his stand of
resigning. The Court found that the employee never returned to work. The one
(1) month’s salary in lieu of notice paid by the employee was
never returned to him to show that his resignation was not accepted. The only
inference from all these facts, according to the Court of Appeal, was that the
employee never returned to his duty post and it could not be said that he was
back in the employment of the appellants.
But I need to point out the
extent of the effects of law’s prohibition of an employer’s rejection of a
resignation letter. The rejection of the notice of retirement is an unlawful
act, which the employer cannot rely on to make any claim against the employee
because doing so would amount to approbating and reprobating, thus, making the
employer a beneficiary of its own unlawful act. Indeed, the Court of Appeal in
the OSHC v. Shittu case held that”
“If the
cross-appellant (employee) had returned to his work with appellants, then the
appellants would be estopped from saying that he was no longer in their
employment and would have been held liable for any consequences arising from
their illegal conduct towards him with regard to his employment.”
The above statement was
an obiter dictum (a remark made in passing), which does not
command the respect or status of a binding judicial pronouncement. The National
Industrial Court refused to apply the above reasoning in Adetoro v.
Access Bank Plc (which was decided in 2016 by Hon. Justice B. B.
Kanyip of the National Industrial Court), where the employee’s resignation was
rejected by the employer twice for being inadequate and on ground that there
was an ongoing investigation about ATM imbalance against the employee. The
argument of the claimant is that the defendant was wrong to have deducted from
his gratuity and that because his two letters of resignation were rejected by
the defendant he remained an employee of the defendant until 20th March 2012
when his gratuity was paid to him. The National Industrial Court upheld the
argument on the unlawfulness of the deductions but rejected the argument on the
claimant being an employee after submitting his voluntary resignation,
notwithstanding the fact that the resignation letters were rejected by the
employer. The Court held that the employee could not sue for salaries and other
benefits after the date of resignation because he had ceased to be in the
defendant’s employment. The Court relied on Adefemi v. Abegunde
[2004] 15 NWLR (Pt. 895) 1 CA and Yesufu v. Gov. Edo
State [2001] 13 NWLR (Pt. 731) 517 SC, in holding that a notice of
resignation of an appointment becomes effective and valid the moment it is
received by the person or authority to whom it is addressed.
From the above, the lesson
for employers is very crucial and, so, can be summarized as follows:
– the
right of an employee to resign without hindrance is still a good labour law and
best practice;
– No
employer has discretion to reject resignation on account of any ongoing
investigation against the employee or his outstanding indebtedness or
inadequacy of the notice period given in the resignation letter;
– Also,
any defect in a resignation letter cannot invalidate or impugn the right of an
employee the employment though it may deprive him or her some benefits which
would have been available if he or she resigns properly.
– It
goes without saying, therefore, that the power to reject an employee’s
resignation letter in any staff #handbook, employee manual or #HR policy will
be unlawful and unenforceable to the extent of its inconsistency with
international best practice and labour standards in employment and labour
relations. The argument that an employee who signs an employment contract
giving the employer such oppressive power cannot later complain is beside the
point. Under Nigerian law, as stated in many cases, including the Supreme
Court’s decision in Menakaya v. Menakaya, public policy
forbids two parties from contracting out of a mandatory law.
Kayode Omosehin is a
Principal Associate and Notary Public at KORIAT & CO. in Lagos.
by Legalnaija | Sep 2, 2020 | Uncategorized
THE
LEGAL PRATICALITIES OF THE USE OF BLOCKCHAIN FOR ONLINE ARBITRATION.
Asides the technical
inhibitions in the complete adoption of blockchain (such as technical know-how,
space for retention of data, protection of confidential information, etc.),[1]
blockchain is not currently used in all earnest for offline commercial
international transactions due to the legal ambiguities; some of which have
been previously hinted on and addressed earlier on in this work. The legal
uncertainties span from the questionability of the legality of a smart
arbitration contract (and if it falls under the ambit of forced consent of
parties who decide to use blockchain as an online platform) to the
enforceability of the arbitral awards. Thus, the legal uncertainties arise from
the initiation of the arbitration agreement through blockchain, to the
recognition of the award by the State. This work will however, limit itself to
the ambiguities to the applicable law of arbitral proceedings (lex situs) and the practicability of
the enforcement of the award.
I.
Lex
Situs in Blockchain Arbitration.
An essential and admirable
feature of Blockchain is its decentralised nature, as it operates on a
peer-peer operational system, above any regulatory authority.[2]
This, however, poses a legal uncertainty as to the governing law applicable to
the international commercial dispute, also referred to as lex situs. Most
international arbitration statutes recognise this, as provided in Article 14 of the International Chamber of
Commerce (ICC) Arbitration Rules[3]
and Article 16 of the London Court of International Arbitration (LCIA)
Arbitration Rules.[4] This position is recognised in the case of Hiscox
v. Outhwaite[5] where the House of Lords held that the
seat of the award is where the contract was signed. The seat of arbitration
will determine the level of State intervention into the arbitration process
(concerning the arbitration theory employed by the State) and the arbitrability
of the subject matter (as was held in the case of Soleimany v. Soleimany[6]).
The seat of arbitration also determines the degree to which the arbitral award
can be challenged.
Legal jurists hence have
criticised the practicality of the use of blockchain as a platform of online-
arbitration as Smart Contracts are enabled through distributed nodes, which cut
across multiple legal jurisdictions, especially on instances of international
contracts, consequently obfuscating the actual lex situs.[7]
In rectifying this uncertainty, scholars have proposed that the arbitrators can
apply the principle of ex aequo et bono by resolving the
dispute on what is deemed fair and just, on instance of no clear applicable
law.[8]
Hence, arbitrators in blockchain assume the powers of amiable compositeur[9]
to carrying out their duties. This position has been criticised due to the very
nature of the technology itself, as it excludes parties through “forced
consent”[10]
from expressly vesting arbitrators the powers to apply the principles of ex
aequo et bono.[11]
Another theory proposed by
legal jurist is the adoption of the jurisdiction of the Fifth party in the
arbitration agreement (referencing the provider of the online-arbitration
service) as the lex situs of the
dispute.[12] This theory proposes that the service
provider maintain a degree of responsibility as owners and maintainers of the
service, and therefore can be accorded the appropriate seat of arbitration.[13]
This position has been given judicial credence in the cases of re
Tezos Securities Litigation[14] and Alibaba Group Holdings Ltd v.
Alibabacoin Foundation et al[15]
where the U.S Courts, in determining issues relating to cryptocurrency and
blockchain, held inter alia that ‘the physical location of the verifying nodes’
is an important factor in determining the jurisdiction of the court.[16]
This writer finds this theory persuasive, as it provides a practical resolution
to this legal debacle.
II.
Enforcement
of the award.
As stated earlier, the New
York Convention stipulates in Article V
the prerequisites of a valid arbitral award, stating that it must written for
it to be recognised and enforced in another State.[17]
This is necessary because the enforcement of an award requires judicial
assistance of the State where the award is to be recognised.[18]
States are empowered to decline enforcement of an award in its jurisdiction on
the ground of public policy. Blockchain, however, provides an automatic
execution of the arbitral award through Smart Contracts for online disputes
relating to cryptocurrencies.[19]
Advocates for the inclusion
of blockchain argue that this is a redeeming factor of the technology, as it is
an effective and practical implementation of the award without encumbrances.[20]
This has been criticised by legal scholars who are of the view that this is a
deviation from traditional commercial practice as it automatically enforces the
award (this mostly involves the transfer of cryptocurrencies from one wallet to
the other) by bypassing the public policy position of the State.[21]
This school of thought also argue that such an enforcement will disregard the
principle of favor debitoris[22]
which protects the interests of the debtor of the award to ensure his
rights are not violated in enforcement.[23]
CONCLUSION/RECOMMENDATION.
As contractual relations
become autonomous through novel technological platforms, the role of dispute
resolution is also expected to adopt to the changes. The procedure of ‘old
wine, new bottle’ approach proposed by traditionalists is ill fitted here, as
with new frontiers comes new challenges. An example is the blur of boundaries
between procedure and execution in Smart Contracts. As legal jurists propose,
the use of blockchain creates more problems than it actually aims to resolve
due to its uncertainties from its ambiguous definition to concept of
decentralisation.[24]
Regardless of legal
skepticisms, Blockchain has been adopted as an ODR platform to resolve online
disputes concerning cryptocurrencies. This, however, has not been implemented
into offline transactions despite its numerous advantages. Reasons for this are
not farfetched, as blockchain is riddled with legal uncertainties. The
technology has been related to the Wild West where there exists little or no
regulations, and all innovators are in a virtual race to the most reliable.[25]
This writer, however, opines that this is a necessary process to streamline the
technology into a more favorable legal platform. Traditional commercial
practice emerged through centuries of practice by traders, referred to as lex
mercatoria.[26]
This organic evolution is also the essential trigger of the internationally
accepted concept of arbitration. This legal Darwinism is essential for
regulation standards that are intricately interwoven with Blockchain and its
services, as not all old wines fit into new bottles. This is essential because
the proposals from jurists that Blockchain should be ‘centre-regulated’ negates
the entirety of the technology itself, as it operates on a decentralised,
peer-to-peer assessed medium.
This writer agrees with the
suggestion of the use of the ‘Oracle’[27] in
the blockchain platform to serve as an interface between the technology and the
real world, to reflect the data and agreements of parties that are not encoded
into the Smart Contract.[28]
This can include parties’ agreement on the use of arbitrators on instance of
conflict, choice of law applicable, seat of arbitration and the enforcement
procedure.[29]
These updates can act as the necessary restrictions of the automatic nature of
Blockchain during arbitral proceedings, making it more suitable to resolve
offline commercial issues, resolving most of the highlighted legal issues.
In conclusion, blockchain is
relatively a new technology, and the extent of its potential, either alone or
mixed with another sector such as arbitration, are currently unknown. The
unknown, however, will so remain, if depths are not pushed. Blockchain will
revolutionise the commercial world, and as consequence, the legal world as
well.
BIBLIOGRAPHY.
CASES.
- Alibaba
Group Holdings Ltd v. Alibabacoin Foundation et al No. 18-02897, Southern
District of New York
- Hiscox
v. Outhwaite [19911 2W.LR. 1321 (C.A.)
- re
Tezos Securities Litigation 17-CV-06779-RS,D.N.D.Cal.
- Soleimany
v. Soleimany [ [1999] 3 All
ER 847
STATUTORY
INSTRUMENTS.
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Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of 1958, 330 UNTS 38
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by Legalnaija | Sep 2, 2020 | Uncategorized
INTRODUCTION
Conflict is an integral part
of society and in all facets of human interactions and relations, prompting the
development of means and avenues for the resolution of those conflicts, either
through exaggerated violence, or other peaceful means.[1]
These avenues of dispute resolution have evolved over the centuries, from
settlement by the elderly, to royal or religious institutions, to the
institutions set up and recognised by the State.[2] Most
developed and developing societies have adopted the State’s means of dispute
resolution, which is the recognition of the Court system to resolve issues
ranging from personal grievances to complex contractual matters.[3]
The increasing complex
nature of disputed issues and industry, the number of contracting parties
involved, and the increasing strain on the court system due to the number of
issues to be resolved with limited resources, necessitated the rise of Alternative Dispute Resolution systems
(hereinafter ADR).[4]
ADR comprises of, but is not limited to, mediation, negotiation and
arbitration. With growing interest from contracting parties, both national and
international, on the inclusion of an arbitration clause in their commercial
agreements as the first form of resolution on instance of a dispute, States and
the international community have developed robust regulatory regimes for the
recognition and enforcement of arbitral awards.[5] The United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention)[6]
is the foremost international treaty for the standardisation of arbitration by
States, regardless of their internal theory of recognition, such as the
jurisdictional, hybrid and autonomous theories.[7]
In recent decades, the
nature of commercial transactions have evolved, due to the rise of
globalisation and digitalised platforms, prompting the emergence of a new
medium of dispute resolution referred to as Online Dispute Resolution (ODR), revolutionising dispute settlement
through its prompt and cost effective process.[8] The
existence of ODR relies on the
virtual prowess of Information and
Communication Technology (ICT), which constantly evolves with innovations.
The emergence of Blockchain as a disruptive technology on not just the
commercial industry, but including real estate, health-care, content
distribution, etc., has drawn an enquiry on the applicability of the technology
as a means of dispute resolution.[9]
This work will explore the nature of online dispute resolution and blockchain
as a disruptive technology, and the legal practicalities of adopting same as a
form of ADR for international commercial transactions.
With the aim of analysing
theoretical and practical aspects of the central theme, this work is so
structured to highlight the necessity for the emergence of ODR, as well as the
different outlooks at its definition. This work also addresses Online
Arbitration as a concept, the practicalities and challenges in today’s
commercial society (if any) and the modes the practice is effected. This
analysis also addresses the Blockchain technology, its operations and
applicability in conducting online arbitration. In conclusion, this writer will
give his researched recommendations on the legal practicality of using
Blockchain as a form of dispute resolution.
EMERGENCE
OF ONLINE DISPUTE RESOLUTION (AN OVERVIEW)
Through the medium of the
internet and ICTs, contracting parties from different nations are able to
conduct and conclude commercial transactions (e-commerce)[10],
with little or no human contact. This interconnected nature of e-commerce has
made dispute resolution complex, as the transactions can involve multiple
jurisdictions.[11] With the astronomical growth of commercial
activities in the Cyberspace (e-commerce transactions accounted for $1,856
billion of manufacturing shipments in the United States in 2008[12]),
the necessity of a viable dispute resolution system was recognised.[13]
As aforementioned, there are already established mechanisms to recognise and
enforce the rights of parties, from the traditional adjudication procedures, to
the erstwhile Alternative Dispute Resolution systems, which are inundated with
documented challenges.[14]
With the advancements made
in information technology law, and the growing need of an expedient and cheaper
method of dispute resolution, the Centre de recherche en droit public
(CRDP) at the University of Montréal started the project known as ‘CyberTribunal’ in 1996, which offered
customers online mediation and arbitration services in resolving disputes
arising with traders online.[15]
The CRDP project presented the necessary research on the practicability of
conducting computer based disputes resolution with advantageous convenience.[16]
In January 2000, an
international legal dispute on domain name was completely resolved online by
parties and an arbitrator, all located in different States, birthing the first
use of the internet as a means of dispute resolution. This led to the
formulation of the Internet Corporation
for Assigned Names and Numbers (ICANN [17])
administered by eResolution, an organisation set up to resolve domain name
disputes.[18]
This promoted the emergence of SquareTrade,
which offers online mediation services for disputes arising out of eBay
transactions.[19]
The successes of these systems in administering ADR for online disputes
stimulated the recognition of ODR by legal practitioners and technology
enthusiasts.
ODR is defined as the
‘practice of resolving disputes via the Internet or digital applications.’[20]
Legal scholars postulate that ODR is mainly another aspect of, or is
synonymous, to ADR, but enabled through the internet and ICT services.[21] This theory argues that ODR employs the
traditional means of mediation, arbitration and negotiation in settling
disputes virtually, with a ‘Fourth
Party’ being the technological platform used, and the ‘Fifth party’ being the provider of
the service.[22]
There is the argument that
ODR is not the simple adoption of virtual services in resolving a dispute, as
it also acts as a medium of prevention of commercial disputes that occur within
and outside the internet.[23]
This school of thought proposes that, as all novel systems, ODR involves new
tools/skills, techniques and assumptions for its effective applicability,
hence, making it distinct from the traditional ADR.[24]
Some examples of the distinctive features of ODR from ADR is the lack of
face-to-face interaction between parties and the automatic record of all
dispute data.[25]
ODR platforms also have fully automated dispute resolution processes which
makes use of developed algorithms in resolving disputes.[26]
ADR, although developed as a
private-sector based regulatory regime, currently has governance introduced for
certification and ethical behavior models.[27]
Proponents of this theory propose that ODR should have organic emergence of its
own regulations and governance.[28]
It is proposed by jurists of this school of thought that ODR can generate its
own internal system of governance, with premise on both I.T. law and ADR. This
is has been coined as Legal Darwinism.[29] This writer finds this school of thought on
the nature of ODR more persuasive, as the system, although adopts the
traditional forms of ADR, exists on a distinct medium which requires its
individualistic set of rules, skills and governance.[30]
ODR has grown over the past
decade to be a recognised form of dispute settlement by States and
international bodies. The European
Commission initiated the Electronic
Consumer Dispute Resolution (ECODIR)[31]
project for the virtual resolution of disputes between Europeans and
cybersellers.[32]
The United Nations Commission on
International Trade Law (UNCITRAL) has also adopted its Technical Notes on Online Dispute
Resolution[33]
in recognition of ODR. The World
Intellectual Property Organisation (WIPO) is another international entity
that has also adopted ODR through the Uniform
Dispute Resolution Policy.[34]
Although States such as the
United Kingdom (UK),[35] and the United States of America (U.S.) are
keen on the adoption of ODR as part of their multi-door courtroom system, ODR
is mainly employed by the private sector, with institutions such as eBay
setting up comprehensive ODR mechanism to resolve disputes arising out their
transactions.[36]
There are other ODR platform service providers, who use specific dispute
resolution applications, such as Benoam[37] and
the Mediation Room.[38]
This work will limit itself to the use of ODR by the private sector for
commercial transactions dispute resolution.
As aforementioned, ODR makes
use of ADR such as mediation, arbitration and negotiation. This work however,
will limit itself to Online Arbitration, in consideration of the implication
and legal feasibility of the novel Blockchain technology in settling arbitarble
disputes online. To understand this, an analysis of the nature of Online
Arbitration is expedient.
ONLINE
ARBITRATION.
Online arbitration, also
referred to as electronic-arbitration (e-arbitration), is one of the foremost
aspects of ODR in resolution of cross-border e-commerce disputes through an
asynchronous process,[39]
although it is not rampantly in use as online-mediation.[40]
E-arbitration is currently used mostly in the resolution of conflict arising
from domain names.[41]
A claimant, who intends to settle the dispute through e-arbitration, initiates
the process by submitting statement of claim, indicating relevant facts and
remedies, to the ODR platform.[42]
Examples of ODR platforms that render such services are WIPO Arbitration and Mediation Centre,[43] internet-ARBitration (net-ARB)[44]
and eQuibbly.[45] The arbitration agreement is concluded with
the arbitral process conducted virtually, as parties (claimant and respondent)
virtually select an arbitrator from the list of accredited arbitrators
registered with the ODR platform.[46]
Either parties are entitled to raise objections as to the arbitrator.
E-arbitration can be
conducted through e-mail, as all the documents for filing, as well as evidence
and written submissions are filled through e-mail. This also includes the
interaction between the arbitrator and the participating parties.[47] Online arbitration also uses the mode of
video-conferencing, by virtue of the ODR service provider.[48] The
first award settled under the online-arbitration platform of WIPO on a dispute
on domain name was the case of World Wrestling Federation Entertainment,
Inc, v. Michael Bosman[49].
The
New York Convention stipulates, through Article II Clause 1, that for an arbitration award to be validly
recognised internationally, there must be a written form of agreement on the
instance of a dispute in an international trade.[50] The
term ‘written’ is described by the Convention to include the “exchange of
letters or telegrams”,[51]
which provides a liberalized interpretation of the term by State signatories
indicating minimum requirements.[52]
Article IV(I) makes provisions that
an arbitral award should be in writing, signed by the arbitrator(s) on the
original or certified copy of the award.[53] The
UNCITRAL Model law on International Arbitration has broadened
this position, by providing that an arbitration agreement can be documented via
telex, telegram or other means of telecommunication, which records the
agreement.[54]
This position is indicative of the recognition of the online arbitration by
States that have adopted the UNCITRAL model law interpretation as well.
Hence, on the premise of the
interpretation by the UNCITRAL Model law, online-arbitration fulfills the
necessary requirements of a valid arbitration agreement by the New York
Convention, as it involves written agreements of parties to submit the dispute
to an arbitral panel either, as provided by the ODR platform.[55]
Legal jurists, who claim the use of ODR excludes parties from voluntarily
submitting to the arbitration panel, have challenged this position using the
WIPO model as a case study as that of mandatory arbitration.[56]
Scholars have also argued
that on the instance of both parties failing to agree on the lex
situs, the ODR platform will have to select the jurisdiction where the
arbitration will be conducted.[57]
The lex
situs is an essential part of an arbitration proceeding as it dictates
the procedural law that is applicable to the arbitral panel, and possibly
influence and determine the outcome of the case.[58]
Enforcement of the award however, is not as straight forward, as legal scholars
have raised arguments against the governing laws of the arbitration, as
e-commerce transactions involve multiple jurisdictions.[59]
These arguments will be succinctly addressed subsequently in relation to
e-arbitration and blockchain.
Although e-arbitration is
not fashionably applicable to offline commercial disputes (as most of the
disputes that occur with this medium relate to conflict on domain name) due to
the legal uncertainties,[60]
parties however make use this ODR service due to its convenience. Parties can
conclude dispute resolution processes through a virtual medium unlike in
traditional ADR.[61]
This makes online arbitration more cost effective and cheaper that other ADR
means.
THE
TECHNOLOGY KNOWN AS BLOCKCHAIN
The phrase, ‘one size fits
all’ very much applies to the description of Blockchain, as it is one of
the 21st century trending
subjects due to its diversity and transformative potential in application in
most aspects of human interaction.[62]
Regulators, academics, legal practitioners and technology enthusiasts all are
promoting the inclusion of the blockchain into various industries, with
arguments of numerous advantages.[63]
Blockchain is the foremost Decentralised
Ledger Technology (DLT) that allows network members to share, store and
transmit information in a continuous manner in the form of ‘blocks’.[64]
These blocks contain series of data from past transactions accessible to
participants of the network with either a private or public key.
Satoshi Nakamoto introduced
the concept of Blockchain in 2008 in his paper on bitcoin and the great
financial revolution introduced by cryptocurrencies.[65]
However, this sparked interest into the technology itself and stretched beyond
financial activities to include governance, real estate, entertainment and
voting, etc.[66]
The types of blockchain
depends mainly on the members of the network with access to the block, as there
are permissioned and permissionless blockchains, which can be sub-divided into
four categories: the public and private permissionless, as well as the
private and public permissioned.[67]
Blockchain performs on two principal mechanisms, which are a decentralised and distributed network (which ensures that the
technology can survive data breaches and other malevolent attacks as there is
no regulatory central authority),[68]
and consensus approval (where new
blocks are added on validated approval by members of the network).[69]
These two mechanisms make blockchain a well-secure technology for sensitive
data storage and protection.[70]
It is imperative to state
that Smart Contracts are an essential aspect of blockchain, as they possess the
computerized transaction protocol that executes the terms agreed on by
participating parties in the network.[71] Legal scholars, who hold more traditional
views, have postulated that Smart Contracts can never be legal contracts as
they lack the foundations of a contract, such as consensus ad idem, offer,
acceptance and intention to enter into legal agreement, and thus fails to
qualify under the provisions of the New York Convention.[72]
This writer humbly disagrees with this position, as the UNICTRAL model law has made profound interpretation of Article II, to include any form of
communication. The communication carried out through blockchain is through
algorithms, and the subsequent signing in by parties with their private keys
can transcribe the intentions of parties to be subjected to same, and can be
interpreted to cover the legal concepts of offer and acceptance.[73]
Consequently, Developed
States are on the verve of incorporating blockchain into the State recognised
ODR platforms. An example of this is the application of blockchain technology
by the Chinese government to the Hangzhou
Westlake Court with a planned cooperation by the Hangzhou Blockchain Technology Research Institute to use blockchain
technology to prevent tampering with digital evidence. In addition, the
Guangzhou Arbitration Commission has issued the first arbitral award based on
the ‘Arbitration Chain’.[74]
How
is Blockchain applicable to online arbitration?
As aforementioned,
blockchain is a buzzing topic in today’s legal sphere, as legal practitioners
and technology enthusiasts deliberate on the nexus between the two spheres,
especially concerning international commercial arbitration. Arbitration
practitioners have argued that blockchain is not a suitable platform to conduct
arbitral proceedings, stating that the technology is “quite slow and expensive
to store massive volumes of data.”[75] This writer humbly disagrees with this
position, as, although, the use of a public permissionless blockchain might be
slow to store such data, private permissioned blockchain is the best suited for
online-arbitration, as it has the potential to process thousands of
transactions per second with low costs.[76]
Within the bitcoin system,
users have formulated a private adjudication system that works essentially with
two digital keys (public or private), as parties can have access to the coins
without dispute. However, on an instance
of a conflict, parties can contact a private adjudicator, who will have a third
access key into the network to assess the facts through the blocks and trace
the origination of the dispute, to determine the case.[77] Blockchain as a form of transnational
arbitration uses ‘multi-signature address’ system, which is highly
self-sufficient and operates outside the influence of the State.[78]
A multi-signature address allows private parties to set up a dispute resolution
procedure that is effectively able to enforce its own outcomes.[79]
Due to its technical and decentralised attributes, blockchain is argued to be
the most practical and advanced form of online-arbitration.[80]
As Smart Contracts are self-executing,
it raises the question of the possibility of the necessity of third party
enforcement, as dispute resolution is considered to be rendered obsolete.[81]
This writer humbly disagrees with this position, as there is the necessity for
a third party adjudicator (as Smart Contracts are liable to disputes due to a
number of issues such as human error in coding).[82]
by Legalnaija | Sep 2, 2020 | Uncategorized
1.0.
INTRODUCTION
Women have
been at a disadvantage since the beginning of the history of human race because
of several prejudices and patriarchal order. Suffering of women created the
concept of feminism as a gender based political and social movement[i].
This movement advocates for Social, Political and economic equality for but
gender in any given Society.
The African
women are very unique by their culture and location on the continent. Their
experience and understanding about life and equality will necessarily be
different from American women, or say European Women. So when an African woman or expresses a strong opinion or share her
perspective within the feminism curve, such opinion might be extreme or
moderate depending on the story behind such expression. African Feminism is a
form of feminism that is developed by African women and
specifically addresses the conditions and needs of continental African women.
The
stories, forming the ideologies of African Feminism are not entirely the same even
within Africa, as many women faces different social realities depending on the sub-region
on the continent[ii].
This paper
examines the uniqueness of African Feminism, through the lens of an African and
the challenges and prospects of this School of thought vis-à-vis Women’s right especially
in Nigeria. It will
also reflect on the key and emerging issues affecting gender justice and the
rights of contemporary Nigerian Women, and the possible legal panacea to these
continuing challenges.
2.0.
WHAT IS FEMINISM
2.1.
The word “Feminist” is derived from the Latin
word ‘femina’ which means woman. This Latin word was later adapted to the
struggle and agitation of women all over the world for an egalitarian society. Feminism is
a belief in the political, economic and cultural equality of women and the
movement represents the long demand for the upliftment of the weaker or
suppressed section of women or girls in the society.
2.2.
The Black’s
Law Dictionary[iii],
did not specifically define feminism, but it defines Feminist Jurisprudence as
a branch of jurisprudence that examines the relationship between women and law,
including the history of legal and social biases against women, the elimination
of those biases in modern law, and the enhancement of women’s legal rights and
recognition in society.
2.3.
Different
Authors and commentators have described feminism in their own perspective. A lot of women define it as the right of
women to aspire politically while some limits it to women’s right over their
body. Again some may argue that it is the right of women to independently own
and acquire properties.
2.4.
However, Feminism is a movement for the rights
of women against gender discrimination. It means that women should not have
less political, economic, and civil rights merely because they are women. The
essence of feminism is well reflected in the famous quotation of the publicist
Mary Shire when she said: “Feminism is a radical view that a woman is a
person[iv].”
It is therefore safe to say that feminism stands for equal opportunity for both
sexes without favouring one over the other.
2.5.
3.0.
FEMINISM IN AFRICA
3.1.
Some have argued
that Feminism is a western concept. That it is just another example of how
uninformed society has become and how much we turn a blind eye to the struggles
of women all around the world, in Europe, Africa and all around the world.
Ascribing the origination of this movement to the West will amount to
disrespecting the effort and memories of the fearless women who fought
courageously for the emancipation of the women folks in Africa.
3.2.
Feminist
activism has always being in Africa before a name was placed on it. While the
name Feminism was not attached to the movement at the early stage, we have had
brave African women standing against Gender discrimination and social injustice
as far back as 19th Century.
3.3.
African
Feminism is different from its Western Counterpart in a lot of respect; this is
so because many of the challenges faced by an average African Women are largely
non-existent in the Western World. These conditions include poverty, franchise,
illiteracy, political inclusion, war, marriage et.c. Therefore, underpinning
African Feminism, are cultural and social issues that pertains to and affect largely
only African women while the Western Women may only share a part of it.
3.4.
Several
Contributors have classified development of African Feminism into two; the
Pre-Colonial Feminism and the Colonial Feminism[v].
In Nigeria Pre-colonial era, Nigerian very few Nigerian women actively
participated in public life and had independent access to resources. However, social
and political exclusion is worse with women from Hausa-Fulani in the Northern
part of Nigeria. Their commercial activities and engagements were limited by
Islam. Only Women with a high position
by birth had more rights regarding their decisions and their funds. The example
is Queen Amina of Zazzau. In 1576, she became the famous ruler of Zazzau in
Northern Nigeria. The Igala Kingdom, located in Northern Nigeria, was also
founded by a woman Ebele Ejaunu[vi].
3.5.
For
decades, African activists have rejected the notion that one can subsume all
feminist agendas under a Western one. As far back as the 1976 international
conference on Women and Development at Wellesley College, Egyptian novelist
Nawal El-Saadawi and Moroccan sociologist Fatema Mernissi challenged efforts by
Western feminists to define global feminism. In the drafting of the 1979 Convention
on the Elimination of Discrimination Against Women (CEDAW), the All African
Women’s Conference was one of six organisations and the only regional body
involved[vii]
3.6.
In the
early 20th century, an
emerging set of African Women
feminist dominated the scene , with
women like Adelaide
Casely-Hayford, the
Sierra-Leonean women’s rights activist referred to as the “African Victorian Feminist” who contributed widely to both Pan-African
and feminist goals, Charlotte Maxeke who in 1918 founded the Bantu Women’s
League in
South Africa and Huda Sharaawi who in 1923 established the Egyptian
Feminist Union to mention a few.
3.7.
In Nigeria, on the fore front of Feminist movement, we had Mary Ekpo and
Funmilayo Ransom- Kuti . Also recently, Chimamanda Ngozi Adichi among others. Mary
Ekpo for instance, was a Women’s Rights activist and a Pioneering female
politician in Nigeria’s first republic that played key role in the Country’s
Male-dominated Nationalism movement. Funmilayo Ransom-Kuti on the other hand established
in 1932, the Abeokuta Ladies Club (later renamed Abeokuta’s Women Union) which
advocated political and social inequalities faced by Nigerian women at the
time. The Union was famous for fighting unfair price controls and burdensome
taxes imposed on Nigerian women at the time by the Colonial Masters. She is
also regarded as the first woman to ride a car in Nigeria
3.8.
Chimamanda Ngozi’ Adichie is Novelist and one
of the most prominent African Feminist of the 21st century.
Adichie’s consciousness and feminist movement was built up after she relocated
to the US on a Communication scholarship. In 2013, her Popular lecture; “We
Should All Be Feminists[viii]” discusses
the damaging paradigms of femininity and masculinity. She has since then expressed
her opinion on issues inequality and the marginalization of women at various
forum
3.9.
Although
the Africa Feminist movement largely focuses on the Africa continent, many of
its contributors also lived in the Diaspora[ix]
.
Therefore,
one’s inquiring minds should not be limited by a geographical location
as the name would imply. The debates, agitations and practices are however
largely pursued on the African continent.
4.0.
WOMEN’S RIGHTS IN NIGERIA
4.1.
In Nigeria,
the idea of women’s right to equal treatment as their male counterpart is still
not generally acceptable. The Country remains a patriarchy society that
entrenches women’s subjugation through cultural, religious and Cultural
validation. Up until the 1950s’ for the South and 80’s for the North, the
Nigerian women had no right to vote or be voted for in an election[x]and
it has been argued that even though this right is now made available to them,
the discrimination to being elected into a political office still never goes
away.
4.1.1. As far back as 1929, the Nigerian
Women in the Eastern part of the Country led the Aba Women’s riot to protest
the unfair tax regime levied on women. The protest saw participation of over
10,000 women[xi].
It is still regarded as the pioneer protest for enforcement of Women’s right in
Nigeria. These women were reputed to have displayed strength, courage in their
opposition to repressive colonial policies that violated women’s rights at the
time
4.1.2. The inequality and the unfair
treatment melted out on women in Africa and in Nigeria are quite enormous and
it ranges from undue disadvantage at birth to discrimination at workplace,
social gatherings, Public institution and the list goes on. It is common place to see job vacancies
specifically exclude women and Political parties having only all men candidates
for elections regardless of whether there are more competent women who could
take the positions.
4.1.3. The presence of forced marriages and
non-consensual sexual intimacy of women is still very prevalent. In some parts
of Nigeria and largely the Northern part for instance, Women are largely still
objectified sought of and are betrothed to the men to be taken as wives even when
as Young as the age of 10[xii].
This inevitably denies female children of school age their right to the
education for their personal development, preparation for adulthood and
effective contribution to the future well-being of their family and society[xiii].
4.1.4. Although, men also suffer from abuses,
it is common place for women to experience domestic violence in their
relationships from their male counterpart in Nigeria. The United Nations
Declaration on the Elimination of Violence against Women (1993) defines
violence against women as “any act of gender-based violence that results
in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or in private life[xiv].
4.1.5. Sadly, domestic violence against women
is hugely a social context in Nigeria, and is based largely on the patriarchal
nature of our society where violence against a wife is seen as a tool that a
husband uses to chastise her so that she improves her ways. It is therefore
common, for a woman to lose her basic rights upon marriage, a challenge that is
strange to the Western Feminists. This is because the man is given some sense
of ownership then woman who mustn’t question his authority[xv].
4.1.6. The percentage of women who suffers
domestic violence in their matrimonial homes has continued to soar with
increase in reported cases of husbands killing and maiming their wives in the
media. According to a report[xvi], every fourth Nigerian
woman suffers domestic violence in her lifetime and 25 per
cent of women in Nigeria have to go through ordeal of domestic violence. The
worst forms of them are battering, trafficking, rape and homicide.
4.1.7. Inheritance to family property is another
challenge peculiar to women in Nigeria, as it is still seen to a large extent
as an exclusive preserve of the male children. Nigerian customary law of succession
and inheritance is patrilineal, which does not allow women to inherit real
property. The fact that a wife is not a blood descendant of her husband’s
family deprives her of succession rights in that family. As regards her
father’s place, a woman by culture is never allowed to come from her husband’s
house to inherit her father’s property. In both cases the female loses, as she
cannot inherit on either side[xvii].
This does not also exclude widows who jointly owned properties with their
husbands while alive.
4.1.8. Although Section 42 of the
Constitution[xviii]
provides for right to freedom from discrimination in Nigeria, Job discrimination
against women is still also prevalent. Many employment opportunities are
unwelcoming of the female gender. It is usual practice to see vacancies with
the proviso that “a male candidate is preferable”. Some industries are open
enough about this discriminatory policy while many hide it for the fear of
being criticized, but even at that, the women never gets the job no matter how
highly qualified.
4.1.9. There are several discriminatory
provisions against female Police Officers in the Nigerian Police Force
Regulations as it is, worthy of mention is Police regulations under the Police Act[xix].
For instance, section 124 of the regulation provides:
“A woman police officer who is
desirous of marrying must first apply in writing to the Commissioner of Police
of the state police command in which she is serving, requesting permission to
marry and giving the name, address, and occupation of the person she intends to
marry. Permission will be granted for the marriage if the intended husband is
of good character and the woman police officer has served in the force for a
period of not less than three years”
4.1.10. It is shameful that an institution
like the Nigerian Police Force can have such discriminatory regulation
and policies in place, part of which its female officers will have to obtain
permission to enjoy matrimony only after three years of service. More appalling
it is that the Commissioner of Police may still choose to refuse such
application.
5.0.
IMPROVEMENTS ON WOMEN’S RIGHT S AND ADVOCACY.
5.1.
There has
been a lot of improvement in the social, economic and political atmosphere for
women in Nigeria in the last decade. Although it is not yet time to celebrate,
a lot of progress has been made in terms of advocacy and policies’ improvement
towards giving equal opportunity to both genders in Africa and Nigeria.
5.2.
Remarkably,
the Child Right Act was passed into law in 2003 in Nigeria. The law
domesticated the International Convention on Rights of child and has very many commendable
provisions that guarantees and protects the rights of the children, especially
the female gender in Nigeria. Regrettably, so far, at least, 11 states in the
North are yet to pass it into law in their respective states[xx].
5.3.
Under the Child
Right Act, a Person under the age of 18 years is incapable of contracting a
valid marriage and where such marriage is contracted, it is null and void[xxi].
This provision has therefore nipped in the bud, the challenges of early marriage
for women and a plus for the Feminist movement in Nigeria. However, since most
states in the Northern part of the Country where Sharia law is predominant has
refused to domesticate the law, the challenge of child marriage still persists.
5.4.
Also,
worthy of mention is that the Child Right Act[xxii]
provides that every child, both male and female has a right to free,
compulsory, universal primary education and all parents and guardian must
ensure their children of both gender attends and completes both primary and
secondary education. This provision helps to put an end to the discriminatory
policies in many homes where the female children are made to stay at home while
their male counter-part are sent to school instead.
5.5.
Also, for a
longtime in Nigeria, there has been an age long tradition among the Igbo
culture, to the effect that women has no right to inheritance to their parents’
properties on the account of their sex and gender. However, by a judgment of
the Supreme Court of Nigeria in 2014, in the case of UKEJI V.UKEJI (2014) LPELR-22724(SC)
, the court invalidated the Igbo customary law that discriminates against
female children’s right of inheritance to their late fathers’ property.
According to the judgment of the apex court, the Igbo customary law, aside
being contrary to natural justice, equity and good conscience, also violates
sections 42 (1) and (2) of the 1999 Constitution of the Federal Republic of
Nigeria (as amended). By this Landmark decision, the age-long discriminatory
succession rights against the women under the Igbo customary law declared
anachronistic has been expunged and laid
to rest once and for all.
5.6.
It is also
commendable to mention the pass into law of the Violence against Persons
(Prohibition) Act 2015[xxiii]
which extends its coverage to acts
normally regarded as cultural and created offences such as domestic violence
against women, harmful traditional practices, psychological violence, sexual
violence and socio-economic violence. The Act expanded the scope of rape,
prohibits female genital mutilation[xxiv],
harmful widowhood practices, partner battery, stalking, domestic violence,
among others. It is also now an offence to forceful ejection a woman from home.
5.7.
In 2019, a
bill was presented to the Senate to end the existing discriminatory policies against
female officers in the Nigerian Police Force[xxv].
The bill sought to expunge all the discriminatory regulations in the Police Act
against women. This covers several gender issues which encompass various
spheres of policy and practice, ranging from language, recruitment, training
and posting; to marriage, pregnancy and childbearing. This Bill is still going
through the parliamentary procedures and appears to be receiving a lot of
support from members of the national assembly. When eventually passed into law,
it will put an end to all the bias against women in the Nigeria Police Force.
6.0.
CONCLUSION
6.1.
In the
words of Chimamanda Ngozi Adichie, “We should all be Feminist” and the
statement is quite agreeable. Both male and female should be given an equal
opportunity to fly. We have seen what women are very capable of achieving when
given the chance to be expressive without any prejudice. All across the world,
women have distinguished themselves in various sector of the economy. Lately we
saw what Jacinda Ardern[xxvi]
has done as the Prime Minister of New Zealand and how honorably she handled and
still handling the outbreak of the Covid-19 pandemic in her country. This is
one out of the many brave women worthy of mention all around the world. Women
in Africa have also set new standards for women’s political leadership
globally. For instance, Rwandan women today hold 62% of the
country’s legislative seats, the highest in the world.
6.2.
Conclusively,
in recent times, there has been a lot of social media advocacy for equal
opportunities for women and Men in the society. The new generation of African
women and by extension Nigerian women appears to be very conscious of their
right and it is refreshing to see. On Twitter for example, it is now common
place to see various trending feminist hash tags like; “Feminarchy, Feminazy,
The Feminist Coven, Masculinist Feminista, Angry Feminist” and the likes. The
journey for women’s liberation has been tough and a rough one, however, it
gives respite to see improvement over the years in way of support for women and
their social inclusion in Policies.
[i]
Muhammed Burak Zenbat, An Analysis of The Concept of The Theory of Feminism
And Historical Changing and Developments of Feminism
[ii]
According the the United Nations, there are five sub-regions in Africa and they
are; West Africa, East Africa, North Africa, Central Africa and Southern
Africa.
[iii]
Black’s Law Dictionary (10th Edition) Bryan A. Garner 2014, Western
Publishing Co.
[v] Pre Colonial Femnism is a movement happening
in the period before the White rule and control of Government In Africa, while
Colonial Feminism will mean the period of foreign control of Government in
Africa.
[viii] “ We should all be feminist” was a
presentation by Chimamanda Adichie on the popular Tedx Talk in 2017.
[ix] A
brief History of African Feminism op.cit
[xi] The
protest took place in Abia State Nigeria and lasted for two months. The
struggle also led to the death of over 51 Women
[xii] Many Schools of thought fix the age of Puberty
at 10 if the child has attained puberty see Ruxton F.H. Maliki Law (Luzac and
Company London) 93
[xiii]
Early Marriage, Child Spouses”(Innocenti Digest No 7 March 2001)
[xiv] General
Assembly Resolution 48/104 of 20 December 1993
[xv] The payment of bride price in the Nigerian
traditional marriage ceremony signifies the handing over….
[xvi]
This a report according to Dr. Maymunah Yusuf Kadiri a mental health physician
and psychologist
[xvii]
The Concept Of Gender Justice And Women’s Rights In Nigeria: Addressing The
Missing Link, Ngozi O. Odiaka, published on Afe Babalola University: Journal of
Sustainable Development Law and Policy Vol. 2 Iss. 1 (2013), pp. 190-205
[xviii] Section 42 of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) provides for freedom from discrimination
based on gender, community, ethnic group, place of origin, religion or
political opinion.
[xix] Cap P19, L.F.N, 2004
[xx]
These states include Bauchi, Yobe, Kano, Sokoto, Adamawa, Borno, Zamfara,
Gombe, Katsina, Kebbi, and Jigawa while Kaduna has its own child right law.
[xxi]
Section 21 of the Act.
[xxii] Section 15 of the Child Right Act.
[xxiii]
Violence against Persons (Prohibition) Act 2015 was signed into law on the 25th
of May 2015.
[xxv] The Bill was sponsored by Ezenwa Onyewuchi, a
Senator from Imo State.
[xxvi] Jacinda Ardern is the 40th Prime
Minister of New Zealand.
ADENIYI
ADERINBOYE, LL.B (Hons) B.L
(adeniyiaderinboye@gmail.com)
