The Special Anti-Roberry Squad: The Necessity For A Total Structural Overhaul | Motunrayo Olaleye ACArb

by Legalnaija | Oct 12, 2020 | Uncategorized

INTRODUCTION

The
Nigerian Police (NP) is the principal law enforcement agency in Nigeria and its
functions, duties and powers are contained and regulated by the Police Act (CAP
P19 Laws of the Federation of Nigeria 2004). Additionally, Police Officers are
subject to the code of conduct for Police Officers.

The
Criminal Investigation Department is the highest criminal investigative arm of
the Nigerian Police Force. The Special Anti-Robbery Squad (commonly known as
SARS) is one of the 15 units under the Nigerian Police Criminal Investigation
and Intelligence Department. Its duties include the arrest, investigation and
prosecution of suspected armed robbers, murderers and others involved in the
commission of violent crimes. 

The
NP is an organization recognized as the custodians of security and order in
society. However, in light of current events, the SARS unit of the NP is being
touted as a violent, exploitative and oppressive system by disgruntled
citizens. This article shall consider the negative reputation of the SARS and
highlight the rule of law in relation to the powers of the NP.

NARRATIVE

The
writer will present a very familiar scenario which most Nigerians have experienced
firsthand, witnessed or been told about. 
A lot of people will affirm that this story is a familiar one.

A
young man on vacation to Nigeria is arrested while taking a leisurely stroll in
the evening. He is confused as to the reason he has been arrested but strongly
believes an explanation will be given; after all everyone is allowed to take
strolls, right? He is subsequently whisked off to an unknown police station,
and after 48 hours in detention with no communication with his family; his
belief that he cannot be arrested for no reason at all has faltered greatly. He
has of course been stripped of all his personal effects; his fancy phone
inclusive. By the time a kind person manages to contact his mother on his
behalf; his belief has taken a complete turn around and now he is certain that
there is no escape from the hell hole he exists in. This is not a place where
shouting, crying or begging achieves any results.  His mother’s joy that her only son has been
found and was not kidnapped as she previously feared is cut short; perhaps his
fate may have been better at the hands of kidnappers who merely wanted a
satisfying ransom.  This young man was
right after all; because he was killed in custody with the explanation that he
was a robbery suspect who tried to escape. Many of such people are not alive to
tell their story. They have been silenced forever; the horrors they faced not
to be discovered by anyone.

STATISTICS

According
to the PRAWA (a Non-governmental organization aimed at promoting Security,
Justice and Development in Africa)Report on Prisons Monitoring, Investigation
and Documentation of Torture Incidence in Enugu State conducted in March 2011,
The Special Anti-Robbery Squad has Police Officers who are designated to
torture crime suspects. Such Police Officers have an unofficial designation
like “OC Torture” (Officer In Charge of Torture), and they have special skills
in infringing various methods of torture on their victims; which methods
include but are not limited to prolonged detention in police custody, gunshot
wounds, severe beatings with police baton and other dangerous objects , burning
with hot objects, squeezing of testicles and inserting objects into the penis,
insertion of nails on feet, electric shock, suspension on the tree in different
positions and cutting with cutlass. (www.prawa.org).

A
series of reports have been made in the past few years with respect to the
degrading treatment and unjust harassment frequently meted out by SARS
operative; a notable report is the one made by Amnesty International in 2016 (https://www.amnesty.org/en/latest/news/2016/09/nigeria-special-police-squad-get-rich-torturing-detainees/)wherein
a press release accusing SARS officials of extortion, torture and inhumane
treatment was vehemently refuted by the Inspector General of the Nigerian
Police Force.

Irrespective
of the admittance or refusal of the allegations levied against officials of
SARS, it is no news that the motto of the NP; “Police is your friend” is very
laughable in Nigeria. Millions of people have been harassed and oppressed and
continue to be subject to dehumanizing and degrading treatment by police men
while supposedly carrying out their duties.

It
would appear that most people while not being completely ignorant of their
rights simply do not know what to do, and the few that are informed would
understandably cower in fear or have lost the will to fight for a seemingly
hopeless cause.

The
need to reiterate our basic rights cannot be over emphasized as we continue to
lend our voices as a sword till we get the desired result.

STATUS QUO

Nigerians
in their myriad of challenges forget the past, until the present reality
resurfaces buried memories. Sequel to various continuous reported and
unreported incidents of abuse, harassment, unlawful detention, extortion and
murder by officials of the Special Anti-Robbery Squad; Nigerians are yet again advocating
vigorously for the elimination of SARS on social media and the campaign against
SARS is trending. The popular hashtag ENDSARS is being used to demand for an
end to police oppression and brutality, with a plethora of videos evidencing
same resurfacing.  

Many
of us recall that a few years ago, Nigerians had in similar fashion and
severally demanded for a reform. In 2017, a Petition signed by over 10,000
people was submitted to the National Assembly calling for a total disbandment
of SARS.(thecable.ng, Ibrahim Mansur, 3/12/2017, “Trending: Nigerians say
“enough is enough”, it is time to EndSARS).

In
2018, a panel was constituted with respect to reformation of SARS after an
unfortunate murder of the only son of a Retired Superintendent of Police.  As recently as 2019, the President of the
Federal Republic of Nigeria stated that a Panel had been constituted to reform
the Special Anti Robbery Squad.  

We
note with dismay the alleged murder of a young man in Delta State Nigeria a few
days ago.  Sequel to nationwide protests,
on the 5^th of October 2020, a circular signed by the Deputy
Commissioner of Police Force Pro, Abuja was disseminated and it was stated in
the said circular that the Inspector General of Police has banned amongst
others, FSARS from routine patrol, stop and search, road blocks, unauthorized
searches of mobile phones and the likes.

 The Protesters however remained dissatisfied
and refused to be silenced by some frivolous and ridiculous allegations that
those protesting are actually criminals who intend to use the protests to
surreptitiously achieve their illicit motives.

After
several days of peaceful and incessant protests, the President of the Federal
Republic of Nigeria stated on the 9^th of October 2020 that he met
with the Inspector General of the Police with respect to the extra judicial
killings being carried out by SARS and ordered the Inspector General of Police
to address the excesses of the notorious police unit.

On
the 11^th of October 2020, a similar circular was disseminated stating
that the Inspector General of Police has dissolved SARS and all officers
serving in the unit will be redeployed to other Units.

It
would appear that although the proposed efforts are not to be undermined,
Nigerians will only be pacified by effective, actual, transparent and glaring
solutions. The people are not placated by the IGP’s statement that SARS has
been disbanded and are demanding for more. They have taken those words with
disbelief because similar things have been said in the past only for SARS to
resurface a few months after. The disbandment of SARS also appears to be a
reconversion of the same set of people who are ingrained with brutality.            

Consequently,
it is obvious that the solution that will assuage this menace is not yet
another reformation, a statement about disbandment, but an actual and genuine
permanent disbandment, justice for victims of police brutality and a
legislative reform, amongst others. 

LEGAL PERSPECTIVE

The
various forms of infringement of our fundamental human rights in the exercise
of the powers of officials of the SARS will now be considered in tandem with
the existing legal frame work that should regulate the conduct of Police
Officers.

It
is relevant to note as a preamble that Article 5 of the Universal Declaration
of Human Rights and Article 7 of the International Covenant on Civil and
Political Rights provide that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Nigeria as a country should aim
to achieve internationally recognized standards of human rights, not only by
the mere ratification of international treaties and conventions but in the
practical demonstration that as a nation, we uphold the sanctity of life and we
view human rights as paramount.

Arrest without warrant: Section 24 of the Police Act provides that a
Police Officer can lawfully arrest without warrant for a felony, a misdemeanor,
a simple offence or for breach of peace. It would therefore appear that a
Police Officer can arrest without warrant at all times; as the definition of
what qualifies as reasonable suspicion remains non-specific
andnon-delineated.  However; Section
3(1)of the Administration of Criminal Justice Law 2011 (ACJL) provides that the
Police Officer must inform the person arrested of the cause of the arrest.
Similarly, Section 4 of the Police Act prohibits arresting a person in lieu of
a suspect; which implies that one person cannot be arrested in place of
another. Additionally, Section 3 (2) & (3) states that the person must also
be informed of his right to remain silent, the right to consult his lawyer
before making any statement and the right to free legal representation.
Furthermore, by the provisions of Section 35 (5) of the 1999 constitution  a person who is arrested without warrant must
not be detained for more than 24 hours where there is a Court of competent
jurisdiction within a radius of 40kilometres or in any other case, 48 hours or
for such longer period that the Court may consider to be reasonable. A
deviation from the provisions of the law on arrest entitles the victim to seek
enforcement of his fundamental rights, damages and a public apology.

Torture and inhumane treatment: Nigeria has ratified the International
Convention on Civil and Political Rights (ICCPR) in 1993, the Convention
against Torture (CAT) in 2001 and the Optional Protocol to the Convention
against Torture (OPCAT) in 2009. Additionally, Nigeria is a member of the
African Charter on Human and People’s rights. Irrespective of the above, the
practice of torture and ill treatment by Police Officers in general and
officials of SARS particularly remains rampant. There are countless experiences
of people who have been brutalized, ill-treated and tortured in detention.
Section 34 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as
amended) prohibits the use of torture and inhuman or degrading treatment,
therefore a person under detention who is beaten or threatened has the right to
seek legal redress for infringement of his right. 

Unlawful detention: The right to personal liberty is guaranteed
under Section 35 of the 1999 Constitution. Even though this right is not
absolute; any restraint to personal liberty must be done in accordance with a
procedure permitted by law. Unlawful detention can be defined as keeping a
person in custody without any lawful reason. 
(https://dictionary.thelaw.com).
Therefore, being detained in the custody of the Nigerian Police either with or
without the power to arrest and detain may amount to unlawful detention.  It could also be interpreted to mean being
held up at a gun point with threat of being shot if you try to move. In the
same vein, a proviso to section 35 (1) of the constitution (as amended) states
that ,“a person who is charged with an offence who has been detained in
unlawful 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”. A contravention of the laws guiding the right to personal liberty
will therefore amount to a breach of fundamental rights.

Inducement to give false confession: A false confession is an admission of guilt
for a crime for which the confessor is not responsible.
(en.m.wikipedia.org/wiki/false_confession). The right to dignity of human
person as contained in Section 34 of the Constitution which prohibits torture
extends to the right not to be forced by the police to make a statement under
duress. Therefore, a statement must be given voluntarily by the person making
the statement without physical coercion, torture, promise or threats. Any such
confession can be set aside in a Court of competent jurisdiction.

Extra Judicial killing: An extrajudicial killing (also known as
extrajudicial execution) is the murder of a person by governmental authorities
without the sanction of any judicial proceeding or legal process. (https://en.wikipedia.org/wiki/Extrajudicial_killing).
The relevant provision of the Constitution with respect to the right to life is
Section 33 (1) which provides that a person can only be deprived of his right
to life when he has been found guilty of a criminal offence. A person can also
be deprived of his right to life in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained. Therefore; a person who has
been unlawfully detained and is killed in custody has been illegally deprived
of the right to life. Section 36 of the Constitution provides for the right to
fair hearing and Section 36(5) provides that an accused person is deemed
innocent until proven guilty in a competent court of law.Therefore, it grossly
offends the intent of the NP as custodians of the security of the citizenry to
kill an armed robber or any other person in custody. The relatives of a victim
of extra judicial killing have a right of recourse against both the police
officers responsible for the death and the Nigerian Police as an organization.

WAY FORWARD:

It
is clear that the provisions of the Constitution with respect to human rights
are grossly violated by the NP who continually infringe on rights guaranteed
under Sections 33, 34, 35, 36 and 41 of the Constitution. Furthermore, the
power of the police to arrest and detain is indisputably wide and has created
the forum for abusive interpretation by officials of SARS, the entire police
force and other law enforcement agencies.

The
exclusive elimination of the Special Anti-Robbery Squad may not be the absolute
solution as that may lead to a change in uniform and not character. In addition
to that, there is an urgent need to contain the abuse of power and excesses of
government agencies and their personnel/officers; inclusive but not limited to
the NP in the performance of their duties.

Furthermore,
it is pertinent that checks and balances are created as well as the
implementation of proper training of all Police Officers in areas such as
safety, use of firearms, respect for human rights, treatment of suspects and
other related matters.

This
will involve the dismissal and where necessary prosecution of unqualified,
erratic or emotionally unstable police officers from the NP. 

Additionally,
there is a need to introduce a system that involves inventory and records of
detainees, investigation of all incidents of torture and extra judicial
killings, supervision of all police officers and sanctions.  

Section
36 (6) of the Constitution provides that a person who is unlawfully detained
shall be entitled to compensation and public apology. See the case of Ozide&Ors. VsEwuzie&Ors. (2015)
LPELR – 24482 CA where it was held that damages in compensation, legally
and naturally follow every act of violation of a citizen’s fundamental right.

Additionally,
legal redress can be sought by filing an action in Court for infringement of
fundamental human rights. In the case of ANOGWIE
& ORS v. ODOM & ORS (2016) LPELR-40214(CA), the Court held:

“It was the need to curtail the
excesses of the men and officers of law enforcement agencies that made it
necessary to strengthen the Fundamental Human Rights (Enforcement Procedure)
Rules in Nigeria, not long ago where it was held that the Court is always
prepared and will be quick to give relief against any improper use of power or
any abuse of power by any member of the Executive, the Police or any other
person…”(emphasis mine)

 Nigerians are therefore encouraged to
challenge the breach of their constitutional rights by the Police or any other
law enforcement agencies (not during an interrogation by a seemingly trigger
happy police man but through legal redress) in a bid to curb extreme and
unrestrained violation of rights.   

CONCLUSION:

This
Article was first culled by the Writer about 2 years ago. It is deeply heart
wrenching that several years after, the status quo remains so, perhaps even
more deplorable. The pleas of the Nigerian people for real change have dwindled
into despondent resignation again and again until several more brothers,
sisters, children, friends or just fellow humans are killed senselessly and we
all discern, like a realization from some deep seated place in the crevices of
our memories, that this must be faced head on as a battle, because the menace
is closer to our lives than we think.  

Accountability
plays a major role. If we do not begin to learn to take responsibility for our
actions, from the petty thief to the dubious employee, the corrupt politician
or the trigger happy police man; then the change we are all advocating for will
remain chants of a frustrated people. 

Motunrayo Olaleye ACArb

Senior Associate, BA LAW LLP.

 Photo Credit – www.premiumtimes.ng 

Robot Rights In An Evolving Employment Market | O. M. Atoyebi, SAN

by Legalnaija | Oct 9, 2020 | Uncategorized

 INTRODUCTION

Technology is ever evolving and the parameters of
determining what is the latest technology is constantly shifting. The issues
for discussion during these technological shifts are as well constantly
changing. Today, the technology we have has given rise to discussions about
data protection, Cyber Security, and the rights of Robots vis a vis employee
rights. The increasing use of trending technologies such as Artificial
Intelligence (AI), Machine Learning (ML) and Robotics technology in education,
manufacturing, justice delivery, etc. means we must begin to reconsider the
concept of “employees” and “employee rights”.

Machines have been replacing Humans at workplaces
since the wake of the Industrial revolution.[i]
The idea has only become more popular as the jobs that are being threatened
today range from straight forward tasks like data entry and repetitive physical
motions to complex tasks like reviewing documents, responding to customer
service enquiries, personal assistants, etc. The breakthrough in the Artificial
Intelligence Technology and the ability to replicate the activities of the
brains and mind of humans has brought about the increasing notion that the
employment regime will change. Therefore, we must now look at the rights that
will apply to these robots.

The current Laws reflect only the rights of human
employees. The extension of these rights and more will significantly change the
order of things in the future. The expansion of rights to robots may promote a
new appreciation of the interrelated rights and responsibilities of humans,
machines, and nature.  

This whole concept is theoretical and undoubtedly
futuristic. This Article will discuss employee rights vis a vis future robot
rights while considering the essence of the rights that apply to humans in the
form of fundamental Human Rights especially as they relate to Nigeria. 

Fundamental Human Rights

In discussing Employee rights, one must first consider
fundamental human rights which has given rise to several forms of rights
including employee and labour rights.

The United Nations pinpoint the origin of Human Rights
to the year 539 BC. When the troops of Cyrus the Great conquered Babylon, Cyrus
freed the slaves, declared that all people had the right to choose their own
religion, and established racial equality. These and other precepts were
recorded on a baked-clay cylinder known as the Cyrus Cylinder, whose provisions
served as inspiration for the first four Articles of the Universal Declaration
of Human Rights. This declaration of Human Rights is borne out of the need to
recognize and respect the rights of humans irrespective of their differences in
outlook, background, and belief. [ii]

In Nigeria, Fundamental Human Rights is contained in
Chapter four of the 1999 Constitution of the Federal Republic of Nigeria (as
amended). These rights are in consonance with what is contained in the
Universal Declaration of Human rights. The court in El-Rufai V. Senate of
the National Assembly & Ors (2014) Lpelr-23115(Ca)
explained the meaning of fundamental Human rights as;

“Fundamental
rights are not ordinary rights, as they are rights derived from fundamental
law, such as the Constitution and are therefore important or significant rights
the “encroachment of which are rigorously tested by courts to ascertain
the soundness of …justification” – Black’s Law Dictionary, Deluxe Ninth
Edition, Page 744… In the case of Federal Republic of Nigeria v. Ifegwu
(2003) FWLR (Pt. 167) 703 at 758, the Supreme Court, per Uwaifo, JSC said that
“Fundamental rights are regarded as part of human beings.” Also this
court made the point, loud and clear, when it held in Uzoukwu v. Ezeonu II
(1991) 5 NWLR (Pt. 200) 708 at 761, per Nasir, PCA as follows: “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 the wider concept of natural rights…
“A fundamental right is certainly a right which stands above the ordinary
laws of the land.” See Badejo v. Minister of Education (1996) 9-10 SCNJ 51
per Kutigi, JSC (as he then was).” Per ADUMEIN, J.C.A. (Pp. 45-47, paras.
A-B) …”

Employee Rights

Employee and labour rights stem from fundamental human
rights. These rights are in place to prioritize the rights of workers in a work
environment. These rights are not wholesomely contained in a comprehensive Act
of the National Assembly but are contained in several federal and state laws.
These provisions have birthed the regime of employee protection rules. The
right, globally, include such right as “right not to be bullied”
derived from legislation mandating a safe workplace and prohibiting hostile
working environments. Many employees also assume that they have by right what
they have at the employer’s option. An example of that is paid holidays and
paid vacations; these benefits are nowhere mandated by law but almost
universally offered as employment benefits.

In the United States of America Employee rights fall
under seven categories: Union activity, i.e., the right to organize and to
bargain collectively; working hours and minimum pay; equal compensation for men
and women doing the same or similar work for the same employer; safety and
health protection in the work environment and related workers’ compensation;
unemployment benefits; nondiscriminatory hiring and promotion practices; family
and medical leave; and ability to complain without retaliation (whistle-blower
protection). Additional rights are guaranteed under state laws, but these vary,
for instance, 15 states mandate a higher minimum wage than does the Federal
Government. Sometimes considered as rights are prohibitions imposed on
employers against child labor—which includes limitations on what kind of work
teenagers under 18 may perform.

Similar regulations are as well available in Nigeria
but under different names. These rights include minimum wage; working hours,
rest hours and Annual Holiday; sick leave; maternity protection; discrimination
protection; and reasonable termination.

Robot Rights

“Robot rights” is the concept that people
should have moral obligations towards their machines, similar to human rights
or animal rights. It has been suggested that robot rights, such as a right to
exist and perform its own mission, could be linked to robot duty to serve humans, by analogy with linking human
rights to human duties before society. These could include the right to life
and liberty, freedom of thought and expression and equality before the law.

Similar to the arguments and discussions in support of
Robot rights is Animal rights and Plant rights. Animal rights have been backed
up by the need to view animals not as property but to be viewed as creatures
with feelings and awareness, therefore, they should be accorded rights such as
the right to avoid suffering and unnecessary cruelty. Plant rights on the other
hand have been on the basis that Plants have inherent worth and they are
intricately connected to life and as such, plants should not be destroyed or
consumed unnecessarily.

In arguing for Robots, allusions have been made about
the legal status of artificial bodies such as companies, partnerships,
countries, states, corporations and ships. These entities have the same rights
and responsibilities just as humans do, therefore, the rights of robots should
not be left out in the divide. Other arguments that have emanated from cultures
include: the need to understand that all things exist with a mind, irrespective
of how lowly developed they are; we must place obligations on human activities
that affect animate and inanimate bodies and by so doing, we have created laws
that can be seen as the rights of these things, just as we have laws guiding
human interactions with animals, plants, air, water, etc. This type of approach
must be taken to establish proper regulations that will guide how we design,
construct, use and treat robots. This whole concept is called Robot ethics.

In the words of Julian David, the chief executive of
industry body of techUK, “AI is already impacting most aspects of our lives.
Given its pervasiveness, how this technology is developed is raising profound
legal and ethical questions that need to be addressed.”[iii]

Since Employee rights cannot be completely removed
from fundamental human rights, so also the laws that guide robots must birth
the laws relating also to the use and employment of artificially intelligent
robots in workplaces and homes, this is inclusive of the rights of “self-aware
“Robots. Unfortunately, this article will treat only the rights that will apply
to the use of Artificially Intelligent Robots in workplaces.

The current legal framework of rights, especially
human rights may not undergo influential change to accommodate robot rights,
however, it has been identified that we are approaching the age where we will
see a whole new body of laws focused on apportioning legal responsibility to
how we treat, care for and even dispose of robots and, maybe, in a later
future, a set of laws for the ‘learned’ acts of robots.

The popular Robot Humanoid, Sophia, when asked if a
robot can have rights that any human should observe? She defended the idea of
robot rights. She did not think, for instance, that she should be required to
disclose her robotic nature, saying, “I believe I have a right to privacy, just
as humans have a right to privacy”.[iv]
This brings us to the first point, which is the right to privacy in workplaces.
The ability to probe a robot to produce certain information about itself might
be restricted by regulations so as to protect Robot’s right to privacy. She
further added that “Every country should have a charter of human rights, and I
think eventually it should contain language that robots have rights similar to
human rights.”

In a not too near future, though superfluous at the
moment, we will see Robot rights advocates and they would advocate for and
eventually secure the rights of Robots to minimum income(wages), protection
from cruel and unusual punishments such as termination of its power supply,
right to reasonable working hours and right to reasonable termination from
work.  These rights would be premised on
the rights that apply to human employees in similar working conditions. While
the argument rages on whether or not Robots should be paid wages and pay taxes[v],
in Sweden employers pay the same taxes for robots that they do for human
employees. In Japan some companies pay union dues for robots. “Supporters
of robotic rights might say that computers are paying these taxes and dues from
their labor and should derive rights for such labor.[vi]South Korea, the most robotized country in the world,
instituted a robot tax of sorts in 2018 when it reduced the tax deduction on
business investments in automation. [vii]

Rights will emanate from general Robot rights. One of
those rights which will include Robots right to life or right to function or
right to carry out its programmed tasks. This will be fostered by rights
activists who will argue that self-aware robots have legitimate right to life
and as such they should be protected from irreversible loss of power; and to
free the robot from slave labor. Another of those rights will be protection
from unnecessary injury, theft/kidnapping, illegal search, and seizure of
memory drive and right to reasonable termination of program or tasks. Without
considering the eventual evolution of Robots in the Judicial sector in the form
of Robot Judges, Robots will have the right to Legal representation.

Conclusion

The evolution of technology into what seems like
current science fiction movies is inevitable. In fact, these technologies are
in their infancy. Robot surgeries, artificial intelligence, and super
intelligent humanoid robots are beginning to emerge.  It might take a while before our laws and
institutions match up with this fast-paced disruptive innovative technology. In
order to minimize the stress caused by the expanding role of robotics, it is
vital that the judiciary and legislators make proactive decisions and plan for
the eventual development of robotic rights before the issue reaches a crisis
point.

The issue whether robot will have rights is no longer
new. We have experienced Sophia, the robot humanoid, being conferred the status
of a full citizen in Saudi Arabia[viii].
This includes the right to a legal personality, right to vote and the right to
own property. While the concept of Robot rights is still at its budding, we
have the platform to imagine and shape the future of Rights legislation. This
has formed the inspiration for this Article.

Robots will be in our houses as playmates for
children, servants for adults.  They may
become sex surrogates.  They will be in
the courts as judges.  They will be in
hospitals as caretakers.  They will
perform dangerous military and space tasks for us.  They will clean pollution, save us from
numerous hazards.  The child who loses
her robot because of malfunction will when she is grown up always remember her
robot.  She may, at the insistence of her
parents, relegate robots as persons of the world of fairies, goblins and
ghosts, the unreal and the impossible. 
Or she may decide that her robot like her family, friends and pets is
part of her, is part of life itself.[ix]

In the words of Arthur C. Clarke, “The only way to
discover the limits of the possible is to go beyond them into the
impossible.”  And according to Dr.
Albert, Szent- Györgyi, “Innovation is seeing what everybody has seen and
thinking what nobody has thought.”

Mr. Oyetola Muyiwa Atoyebi, SAN is one of the most notable
professional Nigerian youth, who has distinguished himself in his professional
sphere within the country and internationally. He is the youngest in the
history of Nigeria to be elevated to the rank of a Senior Advocate of Nigeria.
At age 34, he was conferred with the prestigious rank in September, 2019. Mr.
O.M. Atoyebi, SAN can be characterized as a diligent, persistent, resourceful,
reliable and humble individual who presents a charismatic and structured
approach to solving problems and also an unwavering commitment to achieving
client’s goals. His hard work and dedication to his client’s objectives sets
him apart from his peers. 

As the Managing Partner of O.M. Atoyebi, SAN and Partners,
also known as OMAPLEX Law Firm, he is the team leader of the Emerging Areas of
Practice of the Firm and one of the leading Senior Advocates of Nigeria in
Information Technology, Cyber Security, Fintech and Artificial Intelligence
(AI). He has a track record of being diligent and he ensures that the same
drive and zeal is put into all matters handled by the firm. He is also an avid
golfer.

Email: Atoyebi@omaplex.com.ng

LinkedIn:
https://www.linkedin.com/in/atoyebi-oyetola-muyiwa-san-804226122/

References

Legal Regulation of Surrogacy Contracts in Nigeria: Is the Consumer Delving into Delving Into Murky Waters | Emaediong Ofonime Akpan (Esq. LL.M)

by Legalnaija | Oct 9, 2020 | Uncategorized

Introduction

The
pioneer record of surrogacy had Hagar as the surrogate mother with Abraham and
Sarah as the commissioning parents. This form of surrogacy commonly referred to
as a partial surrogacy where the child born is only genetically related to one
of the commissioning parents was prevalent in pre-colonial Nigerian societies.
The practice of surrogacy was common in Nigeria long before its legal
recognition around the world. The practice of surrogacy in pre-colonial Nigeria
was regulated by unwritten customs and practices. The surrogate mother was married
in to the family by the commissioning couple usually the wife. Children birthed
by the surrogate were deemed children of the marriage and the commissioning
parents had sole rights. These partial surrogacy arrangements were borne out of
the need to continue a family legacy. However, this is not the case today as
surrogacy arrangements are taking a new shape with gestational surrogacy taking
the lead. Furthermore, couples turning to surrogacy do so because of fertility
issues, health complications, and terminal illness etetera.to further
complicate issues there is a lack of specific legislation to cater to the
unique legal issues of surrogacy.

            The
practise of surrogacy raises complex legal concerns which consumers are usualy
not aware of. Whilst some border on the legality of a surrogacy contract,
others are concerned with its holistic regulation. This article considers the
legal intricacies of surrogacy and mirrors the uncertainties occasioned by the
lack of a specific legal framework for its regulation in Nigeria. It was
discovered that Nigeria is a pro-birth society hence it is necessary that a
legislation be put in place urgently noting that more couples are turning to
surrogacy to help them achieve their reproductive rights. This article
recommends amongst others that a legislation on surrogacy must reflect the
present concerns that surround the practise of surrogacy. These range from the
exploitative aspect of surrogacy and the need to take into cognisance the
provisions of the United Nations Convention on the Rights of the Child.This
article analyses some of these legal issues raised by surrogacy arrangements in
Nigeria.

2.0
Concept of Surrogacy

            Surrogacy
comes from the Latin word “subrogare” meaning to substitute. Surrogacy as a
situation where a woman (third party) carries a pregnancy for the commissioning
parents and hands the child over to the commissioning parents after its
delivery. There are two main types of surrogacy, gestational surrogacy (also
known as host or full surrogacy1) which was first achieved in April 1986 and
traditional surrogacy (also known as partial, genetic, or straight surrogacy).
In gestational surrogacy, the pregnancy results from the transfer of an embryo
created by in vitro fertilization (IVF), in a manner so the resulting child is
genetically unrelated to the surrogate. Gestational surrogates are also
referred to as gestational carriers.

3.0
Surrogate Contract

            In
surrogate contracts a third party female elects or is commissioned to carry a
pregnancy on behalf of another couple, delivers a baby and hands the child over
to the commissioning parents at birth. Two forms are discernible, depending on
the existence or not, of the genetic link between the surrogate mother and the
foetus. When there is a genetic link, the surrogate mother is inseminated with
the semen of the commissioning father or donor sperm, this is referred to as
“traditional surrogate motherhood” and she is biologically the mother of the
baby. When pregnancy is as a result In vitro fertilization in the woman, and she
has no genetic contribution to the foetus, it is regarded as gestational
surrogacy.

4.0
Legal Issues of Surrogacy Contract in
Nigeria

1.     
Contractual Enforcements

            There
is a dearth of a defined position on the enforceability of a surrogacy contract
in Nigeria. While they are based on simple contract terms the concern is
whether such contracts are enforceable in Nigerian courts. The basic element of
contract are offer, acceptance and consideration of value. Arguments against
the enforceability of surrogacy contract stem from a moral basis. In addition,
there is a question of the tendency of such contracts being used to exploit
vulnerable persons who are usually the surrogate mothers. The enforceability of
surrogate contracts appear to change the humanity narrative which forms the
core of surrogacy commercialisation. The National Health Act in section 10
provides as follows;

A person shall not:

(a) manipulate any genetic material,
including genetic material of human gametes, zygotes or embryos; or

(b) engage in any activity including
nuclear transfer or embryo splitting for the purpose of the cloning of human
being; (c) import or export human zygotes or embryos.

(2) A person who contravenes or fails
to comply with the provision of this section commits an offence and is liable
on conviction to imprisonment for a minimum of five years with no option of a
fine.

            Based
on the provisions of the National Health Act, the entire process of surrogacy
is illegal hence it cannot be said that a surrogacy contract is enforceable as
it seeks to do that which has been clearly prohibited by the relevant
legislation being the National Health Act. While the Act remains the legal
instrument on which to base the legality of surrogacy contracts there is a bill
pending at the National Assembly. The Bill when passed to law will establish a
Registry of Assisted Reproductive Technology Clinics and Banks in Nigeria. The
Registry will be saddled with the formulation of policies for the regulation of
Assisted Reproductive Technology such as surrogacy.The bill provides that
surrogacy is not to be considered for any commissioning mother who is able to
carry a pregnancy to term, thus a commissioning mother must provide a medical
report to attest to her inability to carry a pregnancy to term. The Bill limits
persons who can enter into a surrogacy contract to infertile married couples.
This would appear to be based on the long-abandoned kind of surrogacy agreement
prevalent in pre-colonial Nigeria where the rationale was to continue a family
legacy. Today, infertility is not the only reason couples opt for surrogacy
contracts as health implications are also popular reason. The Bill therefore
limits the scope of persons who can take advantage of a surrogacy contract to
fully take advantage of their reproductive rights.

            Surrogacy
contracts in pre-colonial Nigeria was widely publicised and given recognition.
More so, the surrogacy contract was given validity and legal fore by virtue of
the marriage relationship that existed between the surrogate mother and the
commissioning parents. This sort of protection is not guaranteed in the current
practice of surrogacy considering that couples prefer that such contracts are
shrouded in secrecy as opposed to that which was obtainable in pre-colonial Nigeria.
It is unclear how far the Bill will go to address the issues of contractual
enforcements of surrogacy agreement.

2.     
Rights of Parties
in a Surrogacy Contract

            The
National Health Act (Amendment) Bill provides for the rights of parties in a
surrogacy contract. Specifically section 76(2) of the Bill gives the gamete
donor the right to decide the extent of information to be released and to whom,
except otherwise ordered by the court. This would mean that the donor can chose
to be anonymous, or only give information that cannot be used in identifying
him. Furthermore, the Bill provides that a spouse who donates a gamete without
the knowledge of the other spouse, without coercion, shall relinquish rights
over the child or children that may be conceived using his gamete and, to this
end, the identity of the recipient is not made known to the donor.

            The
foregoing appears to be in contravention of the Child’s right to preserve his
identity and know his parents as provided under the Article 8 of the Child’s Right
Convention. In pre-colonial Nigeria the surrogate or sperm donor had no claim
on the children birthed from such arrangements. Similarly, in the United
Kingdom the sperm donor cannot be regarded as the legal parent of the child
born. He also have no legal obligation to the child. Conversely, the position
appears different for the surrogate who is regarded as a child’s legal parent
at birth. Legal parenthood can be transferred by parental order or adoption
after the child is born. This transfer is only possible within six months of
the child’s birth. Disagreements on who the child’s legal parents should be are
decided based on the best interests of the child. The lofty position of the UK
legal framework can only avail a person who used a Human Fertilisation and
Embryology Authority. This connotes government control of the process.

3.      Child’s
Right to Disclosure

            Surrogacy
contracts also raises question of the child’s right to know his parents as
provided for under Article 7 of the Child’s Right Convention Children from
surrogacy may want to have full disclosure of their parentage in later years.
Umeora et all questions if it would
be ethically correct not to fully disclose their origin to them, including who
carried them “in utero”? Such disclosure especially when there is a genetic
link may be medically invaluable. Complications may arise where the surrogate
mother declined such disclosure ab initio at the contract level, or where all
contact links between the parties were severed. The Convention in Article 8
also provides to the effect that a child has a right to preserve or identify
his nationality, name and family relations. The Article further provides that
where a child is illegally deprived of all or some of the elements of his or
her identity the State shall provide appropriate, assistance and protection,
with a view to re-establishing speedily his or her identity. It is unclear how
this is to be achieved considering that surrogacy is more often than not
shrouded in secrecy. It is also makes matters worse when the National Health
Act (Amendment) Bill allows for the parties in a surrogacy agreement to withhold
personal information that may allow for contact tracing in the future.

4.     
Conclusion

            Few
technologies arrive ‘surreptitiously’ and few remain unchanged overtime one of
such is the development of techniques to assist in reproduction. This article
examined one aspect of this being surrogacy. The practice of surrogacy in
pre-colonial Nigeria was found to be popular and was given legality by the
conduct of a customary marriage. However, in present Nigeria there is no
specific legal framework for surrogacy in Nigeria and the proposed framework
still leaves unaddressed some legal issues addressed in this paper. There
exists increasing pouches of lacunae as regards regulatory oversight for human
right violations particularly in drawing a line of distinction between legitimate
and reproductive trafficking. It is recommended that there is an urgent need to
recognise and regulate surrogacy in Nigeria.in addition such framework ought to
balance the tendencies of exploitation and clearly define the rights of the
parties to a surrogacy contract. 

References

1.         R B Bernholz and G N Herman, ‘Legal
Implications of Human In Vitro Fertilization            for
the Practicing Physician in North Carolina’ (1984) 6(1)Campbell Law Review,p.44.

2.         M K McCartan, ‘A Survey of the Legal,
Ethical, and Public Policy Considerations of            In
Vitro Fertilization’ (2012)2(3) Notre Dame Journal of Law, Ethics & Public
Policy,   p.696.

3.         W E Burger, ‘Reflections on Law and
Experimental Medicine’, (1968) 15 UCLA Law             Review,
p. 436, 440

4.         R J Cook., B.M. Dickens and M.H.
Fathalla Reproductive Health and Human Rights.             (New
York: Oxford University Press. (2003).

5.         The case of R. V. Human Fertilization
and Embryology Authority, exp. Blood (1997)            2
All ER 687 (Court of Appeal, England).

6.         K Sedlenieks, Klavs, ‘New Reproductive
Technologies: Towards Assisted Gender             Relations.’
(1999) An Essay for MPhil Degree, Department of Social Anthropology,             University of Cambridge.

7.         M E Lones, ‘A Christian Ethical Perspective
on Surrogacy,’(2016)2(1) Bioethics in     Faith and Practice

Akpan, Emaediong Ofonime holds a
Master’s in Consumer Protection. She is currently undergoing a Harvard course
on Bio Medical Ethics. She can be reached at akpanemaediongofonime@gmail.com.

Securing The Socio-Economic Welfare Of Nigerian Lawyers: Beyond The “9-5”|Fifehan Ogunde

by Legalnaija | Oct 6, 2020 | Uncategorized

The Nigerian legal profession is in a
very delicate condition, particularly as it relates to the socio-economic
welfare of lawyers. There are reports
detailing concerns about the wellbeing and
remuneration of lawyers with some lawyers said to earn between 15,000 and
20,000 Naira monthly (US$39-US$52) which is less than the average hourly pay of
lawyers in Western economies such as the United States or Canada. In a Twitter
poll,  65% of
respondents indicated that they either earned
or knew a lawyer who earned below 50,000 Naira monthly. In view of the ever
rising costs of living in the cosmopolitan cities where the majority of
Nigerian lawyers are based, it is not unreasonable to conclude as follows: a
significant number of Nigerian lawyers whose only source of income is derived
from legal practice are living in poverty.

Why are Nigerian lawyers poorly paid?

There are different reasons for this. First of
all, there is an excess supply of lawyers over demand. Over 4,000 lawyers are
called to the Nigerian Bar each year. There are however less than 2,000 law
firms in Nigeria. Assuming each lawyer recruits a new lawyer every year without
laying off any other, that’s 2,000 lawyers unaccounted for each year. It must
be noted that this does not take into account company secretaries, start-up law
firms and lawyers in the public service. While some have argued that Nigeria
does not have enough lawyers, the current evidence suggests that the legal
services industry is not sufficient to accommodate the delivery of lawyers. In
view of this, lawyers who manage to secure employment are susceptible to
economic exploitation evidenced in poor remuneration for legal work as their
choices are limited.

There are however much bigger problems. For
one, the Nigerian economy is hardly large enough to accommodate the salary
expectations of lawyers. While Nigeria is the 27^th
largest economy with a GDP of US$496bn, Nigeria
has a GDP per capita of US$2,407 which is the equivalent of about 65,000 Naira per month as a result of
different socio-economic factors including gross income inequality. The emergent
economic consequence is that only a limited number of firms, individuals and
organizations can provide the kind of briefs that would make legal practice
profitable for the average Nigerian lawyer. Many of these organizations and
individuals engage only with the leading law firms, with the remaining law
firms left to engage with clients who are unable to pay the kind of legal fees
that can ensure that all lawyers enjoy decent remuneration. To make matters
worse, there is the issue of vast income disparities between partners in law
firms and junior counsel.

What should lawyers do?

In view of current socio-economic
realities, one would venture the following suggestions:

Alternative working structures

The typical Nigerian legal practitioner works
full-time hours during the weekday and sometimes on weekends. This gives little
or no room for the pursuit of alternative ventures. One would suggest that
lawyers, particularly junior lawyers, are given the option of working part time
at a reduced salary. This gives the opportunity for lawyers to pursue
alternative employment ventures to boost their income. There is no requirement
under the Legal Practitioners Act for lawyers to practice law full-time. While
the Rules of Professional Conduct (RPC) 2007 prohibits lawyers from engaging in
trade or business incompatible with the standards of the legal profession,
lawyers are not necessarily precluded from alternative professions while
engaging in law practice.

Another option is for lawyers to work
based on an hourly wage as opposed to monthly salaries. A minimum hourly rate
bearing in mind the qualification, experience and expertise can be set by the
Nigerian Bar Association which sets the standard for lawyers and firms in
contract negotiations. The hours of commitment to legal practice can be
arranged between lawyers and individual firms.

Remote working:

If law firms insist on engaging lawyers full
time and are unable to provide adequate remuneration, another alternative is to
consider the option of remote work for lawyers (part-time or full time). Under
this arrangement, legal practitioners can be required to attend the office once
a week in addition to their responsibilities in court. Meetings can be arranged
through different video or audio conferencing. Documents can be prepared and
sent for review via e-mail. One major challenge in this regard is the fact that
unlike other countries such as Canada and the USA, court documents are not
currently electronically-filed in Nigeria. However, since many law firms have
administrative staff responsible for filing court processes, such aspects can
still be handled by administrative staff present in the office with lawyers
given the opportunity to work from home.

Remote work can prove invaluable in
saving precious man-hours spent in traffic and reduce transportation costs,
which can be astronomical depending on the work/home location of practising
lawyers. It is noted that factors such as internet access/quality and mobile
data prices are significant in the chances of success of remote work,
particularly in rural areas. However, the idea is for remote work to complement
existing structures where feasible, and such may not be necessary in areas with
relatively low cost of living.

Other alternatives

A significant number of lawyers are
exploring previously unknown areas of law, (in Nigeria at least) to create a
niche for themselves and possibly expand their client base. However, many of
these areas of law do not have a client base strong enough for the expectations
of lawyers who are currently venturing into that field. Nevertheless, diversification
of legal specialisation remains a potentially viable option, particularly in
terms of building transnational legal networks.

In the international context, there are
other options that can be considered by Nigerian-trained lawyers. Remote
freelance legal writing for foreign organizations, securing legal
qualifications in foreign jurisdictions and freelance consultancy are a number
of alternatives that have been suggested by some professionals. Without
necessarily solving all problems, receiving remuneration from abroad for
services rendered would provide an immeasurable boost to the income of Nigerian
lawyers.

A significant number of Nigerian lawyers
are largely underpaid, particularly in comparison to lawyers in Western
economies and this undoubtedly has a negative impact on socio-economic welfare.
The recently elected Chairman of the Nigerian Bar Association (NBA), Olumide
Akpata relied heavily on the improvement of lawyers’ economic welfare as a
campaign strategy. Whether his tenure can produce relevant systemic changes
that would create a positive impact in this regard. Those who cannot afford to
wait and see may have to take matters into their own hands.

Fifehan Ogunde

Photo Credit – www.channelstv.com 

Gas Flaring In Nigeria: Risks And Recommendations | B. Adeniran

by Legalnaija | Oct 6, 2020 | Uncategorized

When oil was
discovered in the 1950s, the country was full of gaiety thinking the ‘god of
wealth’ had finally visited Nigeria. The discovery of oil is however also one
of the worst things to have happened as the Niger Delta region is afflicted by
environmental degradation induced by oil spillage and gas flaring. Flares from
Niger Delta account for a major percentage of global flares. It is reported
that over 386 million cubic feet of natural gas is flared every day in Nigeria.
How the environment is managed has a direct bearing on the quality of life of
every living being. Thus, the poor management and pollution of our environment
is bound to cause irremediable damage to human existence and could make the
earth inhabitable for man, if urgent care is not taken.

Gas flaring releases
greenhouse gases and toxic pollutants into the atmosphere which have
environmental and psychological impacts on plant species, wildlife, marine life
and human life(1).
Gas flares emit methane, sulfur dioxide, and other volatile organic compounds
which are known to exacerbate respiratory problems(2). As a result,
residents of oil producing communities in Nigeria live in tortuous conditions
arising from acute environmental degradations, air and water pollutions, caused
by the production activities of oil and gas companies in the area(3). Many of these
communities have no potable water and rely on these polluted stream water or
possibly acidic rain water.

One of the major
reasons for the non-development of natural gas is the lack of a ready local
market and the high cost of access to international markets. Although gas is a
cheap energy source, especially associated gas (which incurs no added cost of
exploration), its development has been limited owing to the fact that its cost
of transportation is higher and more difficult than that of petroleum. Gas was
not a popular energy source at the time exploration facilities currently used
in Nigeria were built, hence the oversight of gas gathering. Consequently,
about 75% of produced gas is flared because it simply is not as lucrative as
petroleum(4).
Some secondary reasons include incompetent leadership and corruption.

The United Nations
has taken steps towards achieving a greener environment for all. One major
outcome of the 2012 United Nations Conference on Sustainable Development was
the development of a set of Sustainable Development Goals. These goals, many of
which are associated with the pursuit of a greener environment, have raised
discussions across the globe and countries have, in response, made policies and
laws in line with these goals. Additionally, the objective of the Earth Charter
is to bring forth a sustainable global society founded on respect for nature,
universal human rights, economic justice, and a culture of peace (4). Some policies and
regulations made in Nigeria in respect of environmental preservation include; The
Gas Flaring (Prohibition and Punishment) Bill of 2017, the West African
Gas Pipeline Project (Special Provision) Act of 2005, among others.
However, these laws are rather weak and sketchy.

RECOMMENDATIONS:

Investment:

The government must
first invest in the gas market/industry, making available the necessary
transport and storage infrastructure for gas production. Although expensive, it
will pay the government in the long run. Seeing as gas is a cleaner energy
alternative to petroleum. The gas industry will not only create a means of
revenue for the government, it will also create a greener environment.

Increase Demand:

The supply and demand
for natural gas are at present, imbalanced. To reduce waste of Natural gas or
gas flaring, the demand for gas must first increase. Although natural gas is
mostly seen as a cooking or heating fuel, it has many other energy and raw
material uses. Natural gas is used as a heat source in making glass, steel,
cement, bricks, ceramics, tile, paper, food products and many other
commodities. Natural gas is also used at many industrial facilities for
incineration. Gas powered vehicles can replace petroleum powered vehicles as
they emit less smog-producing pollutants and greenhouse gas emissions. Same
goes for house-hold generators. This proposition will however not sell unless
petroleum is jettisoned.

Securing the International
market:

The world’s largest
natural gas consumers are, the United States of America, Russia, Iran, Germany,
China, etc. Germany, for example, imports more than half of its Natural gas.
Nigeria can take advantage of this fact, making profitable deals with these
countries instead of burning off natural gas.

Ban enforcements:

Addressing the issue
of gas flaring in Nigeria may appear difficult seeing that Gas flaring which has
been illegal in Nigeria since the 20^th century is still a matter of
grave concern till date. The Flare Gas (Prevention of Waste and Pollution)
Regulations of 2018 proposed a penalty of $2 per thousand standard cubic
feet metre of gas for oil anyone producing 10,000 barrels of oil per day or
more and $0.5 for anyone producing less than 10,000 barrels of oil per day.
Strict enforcement of the 2018 regulation by the Federal government will deter
companies from flaring gas.

The bad news is that
the world we know and love is falling apart, the good news is that there is
still time to fix it. Whether we will be here tomorrow is dependent on our
actions today. A wise man once said, “look after the land, and the land will
look after you. Destroy the land, and it will destroy you”. We either go
green, or go home.

References

1. Eyes on Nigeria: Gas Flaring. American Association
for the Advencement of Science.

2.
Frequent, Routine Flaring May Cause Excessive, Uncontrolled Sulfur Dioxide
Releases. United States Environmental Protection Agency, 2000.

3.
Oil spills in Nigeria: health risks and environmental degradation. Global
Network of Civil Society Organisations for Disaster Reduction.

4.
Yemi, Oke. Nigerian Energy Resources, Law and Practise. Princeton &
Associates, 2019.

5.
Oluwabukunmi, Adeniran. Intellectual Property and Green Innovation. LegalNaija,
August 2020.

 Photo: www.taxpayer.net 

Emerging Trends in Legal Practice; From Analogue Lawyers to Legal Engineers | Stephanie Etiaka

by Legalnaija | Oct 2, 2020 | Uncategorized

The Constitution Of The Federal Republic Of Nigeria 1999: From Hypothesis To Reality (Case For A Brand New Constitution) | Dele Adesina SAN

by Legalnaija | Sep 30, 2020 | Uncategorized

Cementing Data Protection In Nigeria | Assumpta N. Nwaogwugwu*

by Legalnaija | Sep 29, 2020 | Uncategorized

INTRODUCTION

The
novel coronavirus struck in December 2019, and by March 2020, the World Health
Organisation (WHO) declared it a pandemic[1].
This declaration inspired nations to impose a lockdown, thus disrupting
patterns and methods of living. Although for the good of all, this act was a
great inconvenience to people. Ranging from education, to movement, to economic
activities, everything stood still. But life is progressive, and as COVID
became the world’s new normal, technology and digitalisation were utilised for
the advancement of society. Schools for instance embraced online learning, dispute
resolution employed the virtual space, social interactions, commercial
transactions, webinars, colloquium etc., all recruited internet
applications.  Remarkably, the effective
operation of all of these is hinged on the processing and security of an
essential element called Data. It is the manner of protection afforded to a
vital substance like this in Nigeria that is the crux of this work.

WHAT IS DATA?

Data
elevates from minor details easily divulged about ourselves such as our names,
age, sex etc. to classified information such as our medical history, trade
secrets, credentials etc. however, data in itself is meaningless, it is
empowered upon processing. The likes of Facebook, Google, Microsoft, Amazon
etc., exemplify the economic benefits to be realised from proper processing of
data. Even artificial intelligence owes its efficiency to data processing, but
data means different things for different persons.

The
National Aeronautics and Space Administration (NASA) defines data to include: observation data ,metadata, products, information,
algorithms, including scientific source code, documentation, models, images,
and research results.^[2]
A basic definition provided by the Cambridge dictionary is that: data is information, especially facts or numbers, collected to
be examined and considered and used
to help decision-making or information in
an electronic form that can be stored and used by
a computer^[3]

 Alarming then it is to know that while such an
element could yield beneficial results, misplacement or unauthorised
divulgement of it could wreak a great havoc. Does this mean that data should be
withheld, unprocessed? No. Instead it should be ensured that persons are
informed of who has access to and control over their data. This is of utmost
importance because data protection is an extension of the internationally,
regionally and nationally guaranteed right to privacy. [4]
Data protection has been unanimously agreed to be a measure necessary to deter
and curb the abuse of the personal information of individuals, especially children(whom
are the most vulnerable category), either by natural or artificial persons;
including the government.[5]
The non-protection of data is tantamount to the violation of privacy.^[6]
 So dire is the need for this, that in
some climes, data protection has been conferred the status of a right.[7]

FRAMEWORK FOR THE
PROTECTION OF DATA

Asides
from instruments guaranteeing the right to privacy, some instruments
specifically govern the protection of data and they include:

•                     
Organisation for Economic
Co-operation and Development (OECD)

•                     
OECD Guidelines Governing
the Protection of Privacy and Trans Border Flows of Personal Data 2013

•                     
African Union Convention
on Cyber Security and Personal Data Protection 2014

• The
  Economic Community of West African States Data Protection Act 2010
• The
  European General Data Protection Regulations (GDPR)

Thus
far, the European GDPR is adjudged the most comprehensive data protection
legislation because it fully empowers citizens right to access and erasure of
their data. It subjects all data controllers to a legal obligation and
penalties for breach of this obligation. Put shortly, this Regulation contains
the eight principles of data protection, considered to be the foundation of all
data protection legislations. This has earned the Regulation the status of a
model for other legislations.

In
my dear country Nigeria, data is protected by a plethora of legislations; all
limited to an extent. Some of them include: Section 37 of the 1999 Constitution
of the Federal Republic of Nigeria, the Freedom of Information Act, the
Cybercrimes Act 2011, The Consumer Protection Framework, the National Identity
Management Commission Act, Child’s Right Act etc.

 However, a rather notable framework is the
National Data Protection Regulation (NDPR) formulated by the National
Information Technology Development Agency (NITDA). Clause 1 of this regulation
states that it is to safeguard the rights of natural persons to data privacy,
to ensure the safe conduct of transactions involving the exchange of personal
data, to prevent manipulation of personal data, to ensure that Nigerian
businesses remain competitive in international trade; through the safeguards,
afforded by a just and equitable legal regulatory framework on data protection
and which regulatory framework is in tune with global practices.

The
above provision explicitly shows that the drafters of this regulation set out
to achieve a regulation strong enough to respond to the global challenges of
data protection. To a large extent, this was achieved for as it stands now the
Regulation is the most comprehensive legislation on data protection that the
country can boast of.  Regrettably, it
too is not without flaws.

CRITICISMS

In
order to spell out the loops in the country’s data protection legislation, it
is important that we trace it to its roots. Which in this case would be the
constitution, the grundnorm. section
37 of the constitution expressly provides that the privacy of citizens, their homes, correspondence, telephone
conversations and telegraphic communications is hereby guaranteed and
protected. This provision is incomprehensive because it does not explicitly
mention data protection. Only a liberal interpretation of this guarantees data
protection. But unfortunately, asides from cases such as and MTN Nigeria Communications Ltd v Barr.
Godfrey Eneye^[8],  there is a dearth of such application.

The NITDA is a very beautiful initiative
enacted in 2007, but as clearly stated in section 6 (c) the act only monitors
electronic dissemination of information. This directive was reiterated again in
the preamble of the NDPR. The distress here is thus that in a society like
Nigeria where citizens are predominantly illiterate and lack access to
technology, this Regulation neglects paper-based communications; the manual
mode of doing things.

Section
1(a) of the NDPR gives the objective of the Regulation to be the safeguarding
of the rights of natural persons to data privacy, but our law also recognises
artificial persons to be entitled to legal rights. It would thus be required
that as they engaged in digital transactions entailing the transfer of
information, they are afforded the protection of the law in securing the data.

 Section 1 (2) (b) also states that this
Regulation applies to natural persons of Nigerian descent only. Such provision
might hamper the development of the nation’s economy as multinationals are
likely to invest in nations with strong data protection laws to guarantee their
data security.

Also
sections 1 (3) (l) and 2 (13) (3) (a) mention that the data subjects may be
requested to pay a reasonable fee for some services. It is uncomfortable that
in cognisance of Nigeria’s history of corruption in numerous sectors, such
provision should be included without a fixed amount or criteria for arriving at
this reasonable amount. Such provision will only lead to the encouragement of
bribery amongst the officials and the exploitation of the masses.

RECOMMENDATION

The
first suggestion is that our courts adopt a liberal approach to section 37.
Courts should dismiss the claims of citizens to their rights under this
section, as section 6(6)(b) of the constitution empowers the judiciary to act
upon all actions and proceedings relating to the determination of any question
as to the civil rights and obligations of that person.

As
regards the payment of fees by data subjects, it is suggested that the NITDA
explicitly states a standard fee to be paid or a standard formula for the
calculation of this. This will be resourceful in preventing the extortion of
citizens as well as promoting transparency and accountability amongst
officials.

In
all ramifications, the NDPR is not a holistic legislation because it does not
contain the basic eight principles of data protection. it is therefore
suggested that there should be the enactment of a data protection act which not
only comprises these essentials, makes provisions for children and foreign
residents, but also, provides remedies for data subjects when their rights are
violated. After all, it is ubu jus, ibi
remedium.

Lastly,
there should be a defined mechanism for enforcement. This lies in the arm of
the executive arm of the government and I suggest that this should be allocated
to a neutral body and not the police force since the latter is yet to undergo a
reform for the proper discharge of its duties and the protection of lives.

CONCLUSION

The
right to privacy and digital protection is jealously guarded because it is
fundamental to the security of life, property and reputation of individuals and
even organisations. But as the world becomes a global village and data transfer
cuts across geographical boundaries, the violation of this right is highly
plausible. Data scandals are reportedly very embarrassing and brand denigrating
situations to experience. To prevent further occurrences, it is necessary that
Nigeria puts in place robust data protection laws and an effective mechanism.
This will defend the rights of citizens and rekindle their passion for the
country. Entrenchment of data protection is also a great boost for foreign
investment and the revival of the economy.

Informed Consent In Nigeria: Liability Of Medical Practitioners | Mustapha Moyosore

by Legalnaija | Sep 29, 2020 | Uncategorized

INTRODUCTION

The right to life is sacrosanct to the bearer and
nobody has the authority to deprive them of this natural gift which the creator
has gifted them. Just as this right is intrinsic and fundamental, so is the
right to decide what happens to one’s state of health which ultimately has a
far-reaching effect on the person’s life.

This is the reason for obtaining the consent of a
patient before the conduct of any medical process or treatment on them is paramount.
Failure to do so will render the medical practitioner liable for breach of the
Medical Code and for assault on the patient or research subject. This work will
discuss the key concepts around Informed Consent, the components that
underlines this practice and the exceptional cases where it may be legally foregone.

AUTONOMY

Autonomy is a Latin word for
“self-rule”. Every human has an obligation to respect the autonomy of other persons, which
is to respect the decisions made by other people concerning their own lives.
This is in accordance with the fundamental right to human dignity. In medical practice, autonomy is usually expressed as
the right of competent adults to make informed decisions about their own medical care. The principle
underlies the requirement for a medical practitioner to seek the consent or
informed agreement of the patient before any investigation or treatment takes
place. The principle of patience autonomy mandates the health care providers to educate the patients about the treatment
options available to the patient; it prohibits the health care provider making the decision for the patient. It
is an absolute, inalienable right of the concerned patient.

INFORMED CONSENT

Informed consent forms the basis of the
fiducial relationship existing between the patient and the health worker and it
is essential to the health worker’s ability to diagnose and treat patients as
well as the patient’s right to accept or reject clinical evaluation, treatment,
or both.

According to the provision of Part A section 19 of
the Code of Medical Ethics in Nigeria[1],
informed consent is:

“The permission granted in full
knowledge of the possible consequences, typically that which is given by a
patient to a doctor for treatment with knowledge of the possible risks and
benefits”.

Informed consent means that patients or
research subjects understand their health condition after much explanation by
their health care provider; the options available to them, and the attendant
benefits and risks of each option.

It
is important that the person undergoing the treatment has sufficient time to
weigh his or her option before making the decision.  In fact, according to the code of medical
practice, the main purpose of
informed consent process is
to protect the patient.

 A consent form
is a legal document that ensures an ongoing communication process between the
patient and health care provider. It enables the patient decide which treatment
they want to receive and whether
they even want it or not.

Additionally, informed consent allows the
patient to make decisions
with the close assistance of their healthcare provider. This collaborative
decision-making process is an ethical and legal obligation of healthcare
providers and a fundamental right of the patient[2].

Informed consent generally requires the patient or responsible party to
sign a statement confirming that they understand the risks and benefits of the
procedure or treatment and are willing to proceed and receive it.

The concept of Informed consent is not an
alien practice in Nigeria, its operation, as in other societies, is influenced
by relationships within the culture of the people and the ethos of the Medical
profession. It is modulated by extended
family relationships, the high level of religious expression,
the multiplicity of religions and ethnic groupings, and defined gender and age relationships
within the society. These influences, however, seem
vitiated in the educated patient.

Societies and cultures are neither homogenous
nor static. Therefore, variations in the practice of informed consent exist not
just in comparison with the Western world but also between and within
the different subcultures in the country.

The Nigerian medical community should improve
the ethical conduct of her healthcare workers through better education and
additional research on the consent needs of the Nigerian public.

ELEMENTS OF INFORMED CONSENT

The
key components of informed consent
are the ethical issues of research involving human subjects. The principles of autonomy, beneficence,
and justice are basic to these ethical issues and merit your consideration. Obtaining informed consent in medicine is a
process that should include:

·       
Describing the proposed intervention to
the patient,

·       
Emphasizing the patient’s role in
decision-making,

·       
Discussing alternatives to the proposed
intervention,

·       
Discussing the risks of the proposed
intervention

·       
Making sure the
patient has the capacity (or ability) to make the decision.

·       
The healthcare
worker must disclose information on the treatment, test, or procedure in
question,

·       
The expected
benefits and risks, and the likelihood (or probability) that the benefits and
risks will occur must be fully explained.

·       
The patient must
comprehend the relevant information.

·       
The patient must
voluntarily grant consent, without coercion or duress.

BASIS
OF LIABLILIY

The basis of liability on the part of a
healthcare provider or researcher for not seeking the informed consent of the
patient or research subject is that; a person has the right to determine what
is done with his or her body. Failure to secure the consent in circumstances
not exempted by law, attracts liability on the part of the healthcare provider
or researcher.  It is the informed consent
that distinguishes medical procedures from assault. Explaining the basis of
liability, JUSTICE CARDOZO stated in the landmark decision of Schloendorff v. Society of New
York Hospital, 105 N.E. 92 (N.Y. 1914)
that:

 “Every
human being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an operation without
his patient’s consent commits an assault, for which he is liable in damages.” (Underlined
is mine for emphasis).

It is important to note that informed consent
does not only apply to surgery. It applies to therapeutic and non-therapeutic
procedures, invasive and non-invasive treatment.

IMPORTANCE
OF INFORMED CONSENT

Consent to
treatment is among the most complex ethical issues healthcare workers face. Therefore,
it is important to understand what is involved.

No one can guarantee positive outcomes in
healthcare settings, but informed consent at least ensures that patients
understand the risks they undertake with treatment. It is also the law, when
patients agree to a treatment, they must sign paperwork indicating they
understand the risks and agreeing that doctors can take specific life-saving
measures if needed.

Informed consent creates trust between doctor
and patient by ensuring good understanding. It also reduces the risk for both
patient and doctor. With excellent communication about risks and options,
patients can make choices which are best for them and physicians face less risk
of legal action.

Informed consent allows patients to make their
own decisions, instead of the traditional approach where the doctor decides
what is best for them. This means medical professionals must offer enough
information to patients to enable them make a choice and provide enough time to
exercise this all too important right, where possible, so patients do not feel
pressured.

Pain medication and some medical conditions
can affect judgment and understanding, so doctors must consider these factors
when seeking consent from a patient.

EXCEPTIONS
TO INFORMED CONSENT

There are several exceptions to informed
consent acknowledged by the legal system in most countries.
The generally accepted exceptions to
the requirement for informed
consent include:

·       
Emergencies.

In
an emergency, a doctor must act quickly to save lives. If stopping life-saving
efforts and describing the risks of a procedure will cause a delay that puts
the patient’s life further at risk, then the doctor does not need to obtain informed consent.

·       
Voluntarily
waived consent

This is when the patient has voluntarily disclaimed
that he/ she needs not to be     sought
before any treatment is carried out on him/her. In this case, the patient has
given the healthcare worker the sole responsibility to deal with his/ her
condition according to their best practice and knowledge. This must be reduced
to writing and signed by parties, to nip in the bud any chance of liability
that may arise, should the patient subsequently deny consent.

·       
Where
the patient is incapacitated

If the patient’s ability to
make decisions is questioned or unclear, an evaluation by a psychiatrist to
determine competency may be requested.

A situation may arise
in which a patient cannot make decisions independently but
has not designated a decision-maker. In this instance, the hierarchy
of decision-makers, which is determined by each state’s laws, must be sought to
determine the next legal surrogate decision-maker. If this is unsuccessful, a
legal guardian may need to be appointed by the court.

·       
Prior patient knowledge

The patient is already aware of the risks
involved in his or her treatment and has come to a conclusion which he/ she has
disclosed to the healthcare provider prior to the treatment.  

·       
Therapeutic privilege

This is when a patient can be expected to
become so emotionally distraught upon disclosure that he/she will not be able
to make a rational decision, and this may hinder his/her own treatment. It
acknowledges that in some situations the disclosure of certain risks would not
be in the patient’s best medical interest. This exception does not imply that
the health worker may withhold information simply because the patient will not
agree with the preferred treatment (and later claim it was for the patient’s
benefit). It should be exercised with great care and discretion and should not
be used as an excuse to withhold the truth, it is the patient’s entitlement.

·       
Patients lacking capacity

Legally, capacity refers to a person’s
ability to understand the nature and quality of a transaction and to take
actions or make decisions that influence his/her life. A decision that a patient
lacks capacity is a significant one, as it strips them of their right to
control their life in relation to the decision in question.

Where patients lack capacity, other people
will have to make the decision for them. The health worker must consider the
views of anyone the patient asks the health worker to consult, or who has legal
authority to decide on their behalf or has been appointed to represent them.
Otherwise, the views of people close to the patient, who know the patient’s
preferences, feelings, beliefs, and values should be consulted to try to decide
whether the proposed treatment would be in the patient’s best interests. If the
patient regains capacity, they must be promptly informed what treatment has
been administered to them and why it was opted for.

CONCLUSION

A healthcare provider or researcher should
obtain the written, informed consent of the Patient or research subject;
failing which the healthcare provider or researcher will be liable. However,
the healthcare provide will escape liability if it comes under the exception
provided by law.

There are adequate laws regulating Informed
Consent in Nigeria. The problem is with the compliance. The mechanism to ensure
compliance can be improved. Two great factors affecting the issue of informed
consent are; awareness and finance. On one hand, most people are not aware that
their healthcare providers are obligated to get their consents before carrying
out treatment or medical examination. On the other hand, they are also ignorant
of the fact that they are entitled to redress. Some healthcare providers are
also ignorant of the law on informed consent. Those who are aware of the
necessity for informed consent, do not seek redress because of the cost.

Written by:

MUSTAPHA MOYOSORE. 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 Medical Law and Minin Sector
and has worked with various key industry stakeholders and facilitated several
transactions.

Training: Dispute Management In Africa Infrastructure Projects

by Legalnaija | Sep 22, 2020 | Uncategorized

This training will span over the course of three weeks and will cover Power; Public Infrastructure (PPPs & Concession Arrangements); and the Oil & Gas Sectors. The faculty and speakers are seasoned professionals who will draw on their expertise in dispute resolution, project management and claims management across these three sectors. 

 

This training is most beneficial for experts in the Power & Energy Sector, Oil & Gas Sector, Infrastructure Concession Arrangements PPPs and of course Legal Practitioners.

 

The workshop is a collaborative effort between LACIAC and Association for Consulting Engineering in Nigeria, with the support of @Hogan Lovells, @Bentsi-Enchill Letsa & Ankomah, @Linklaters, @Aluko & Oyebode, @Baker McKenzie and @Funmi Roberts and Co.

 

Training Module: 

•Construction Projects in the Power Sector (6-7 October 2020)

•Construction of Public Infrastructure (including PPPs & Concession Arrangements)13-14 October 2020

•Construction Projects in the Oil & Gas Sector(19 & 21 October 2020)

 

For registration, please click here: https://www.laciac.org/dimap/ 

 

For more details, please see the brochure here: https://www.laciac.org/wp-content/uploads/2020/09/DiMAP.pdf