Federal High Court Sets Aside N24 Billion Naira Order Against CBN

by Legalnaija | Oct 16, 2020 | Uncategorized

On Tuesday, 13^th October 2020, the Federal
High Court, delivered a ruling, setting aside the Garnishee Order Nisi made
against the Central Bank of Nigeria in Suit No: FHC/ABJ/CS/563/2020 between Bendu
Peter Services Nigeria Limited & Anor V. Guaranty Trust Bank Plc & Anor.

Bendu Peters Services Nigeria Limited, instituted a
suit before the High Court of the Federal Capital Territory, Abuja, challenging
the actions of the Guaranty Trust Bank in freezing, suspending and refusing to
allow cash withdrawal from her account when requested.

On the 23^rd of March 2020, the High Court
delivered its judgment and amongst the declaratory reliefs and, consequential
orders granted in favour of the Plaintiff, the court also awarded a judgment
sum of N24,282,017,249.00 (Twenty-Four Billion, Two Hundred and Eighty-Two
Million, Seventeen Thousand, Two Hundred and Forty-Nine Naira) against Guaranty
Trust Bank.

In a bid to reap the fruits of the judgment gotten at
the High Court, Bendu Peters Services Nigeria Limited, instituted garnishee proceedings
at the Federal High Court, Abuja and sought for the immediate attachment of the
sum belonging to Guaranty Trust Bank Plc in the custody of the Central Bank of
Nigeria.

In compliance to the Garnishee Order Nisi, ordering
the Central Bank of Nigeria to appear in court and to disclose by evidence,
reasons why the Order Nisi should not be made absolute against it, in which
circumstance, the counsel to the Central Bank of Nigeria, O. M. Atoyebi, SAN and
other counsel in the matter now before the Federal High Court Abuja, filed all
necessary processes alongside an objection, wherein they also sought the order
of court to set aside the entire proceedings and on the part of the Bank in
particular, counsel sought the order of court to set aside the Order Nisi made
against the Bank.

 The court in
considering the application filed before it, held that the failure of the Plaintiff
now Judgment Creditor at the Federal High Court to disclose the pendency of an
application for the stay of execution of the Judgment obtained from the High
Court of the Federal Capital Territory, Abuja on the 23^rd of March
2020, deprived the court of its jurisdiction to entertain the garnishee
proceedings and on that rationale, the court vacated the Order Nisi made
against the Central Bank of Nigeria and consequently dismissed the action in
its entirety.

The Menace Of The Nigeria Police Force Special Anti – Robbery Squad (The Group of Death): Beyond Its Existence | Debo Oladinni Esq.

by Legalnaija | Oct 14, 2020 | Uncategorized

                                                         

Arbitral Awards As Sovereign Debt Risks: Impact Of P&Id And Eurafic Cases | OAL

by Legalnaija | Oct 14, 2020 | Uncategorized

Background

Deriving
from the sovereignty principle, sovereign debt literary refers to how much a country’s government owes. Often times the primary source is
through outside borrowing hence it can be defined as national or
government debt because
the word “sovereign” connotes national government. However, due to its
nationalistic nature and the fact that internal national borrowing is rarely
existent especially in developing economies like Nigeria, it generally refers
to how much a country owes
to external creditors. While borrowing remains the principal source of
sovereign debts, debts also accrue from other sources and one of such is
Judgement Debt(s) from Court Cases or Arbitral Awards arising from Arbitral
proceedings in disputes involving federal government. Simply explained, it
implies what a National government owe to foreign Judgement Creditors. It is
imperative that developing nations focus on mitigation, reduction or management
of judgement debts or arbitral awards that are of such critical importance or
volume that they portend risk for a country in form of sovereign debt risk. The
reason is that huge exposure to national debts of whatever nature and form has adverse
economic and investment implications.

P&ID and Eurafic Power
Cases

In
January 2017, an ad-hoc arbitral tribunal sitting in London by a majority of
two is to one made a final award of $6.597 billion, together with interest at
the rate of 7% starting from 20 March 2013 until the payment is made, in favour
of Process and Industrial Development Limited (“P&ID”), a company based in
the British Virgin Islands and against the Federal Government of Nigerian (“FGN”).
This was following an alleged
breach of a gas supply and processing agreement (“GSPA”) between the FGN and P&ID,
which was signed on 11 January 2010, based on which, FGN was to supply natural gas to P&ID’s production facility over a
20-year period. In return, P&ID would process the wet gas by removing
natural gas liquids and return approximately 85% of the processed gas to the
government at no cost to the Nigerian government. However, according to P&ID,
FGN renounced their obligation under the agreement by failing to take any steps
to supply the wet gas to the processing facility for three years. Consequently,
in March 2013, P&ID commenced arbitration proceedings against the FGN pursuant to Clause 20 of
the agreement and a final award of $6.597 billion was made by the
tribunal. P&ID was granted leave to enforce the
arbitral tribunal’s final award which now stands at about $9.6 billion by the Queen’s
Bench Division of the English Commercial Court. However, on 4 September 2020,
Sir Ross Cranston of the Queen’s Bench Division of the High Court of England
granted an application made by FGN for extension of time to challenge the
award. The application was granted on the ground that there is prima facie
evidence that the award was obtained by fraud and that Nigeria ought to be
allowed time to prove the allegation of fraud.

Also, 28 January 2017, an arbitral tribunal sitting at the London
Court of International Arbitration (“LCIA”) awarded a combined sum of ₦1.12
billion to Eurafric Power Limited (“Eurafric Power”) against FGN for the
alleged breach of a share sale agreement between Eurafic Power and FGN over the
assets of Sapele Power Station. A High Court in United Kingdom presided over by
Justice Popple Well subsequently recognized the award as a court judgment on 15
January 2018. As at 23 October 2019, Eurafric Power has identified about 33
assets belonging to the government of Nigeria and situate in England over which
it intends to enforce the award if the Nigerian government fails to pay the
award sum.

These incidents generated massive public interest, accusations and
counter-accusations of professional negligence and how an execution of such
heavy judgements would affect a large chunk of Nigeria’s revenue position. The
economy is already bleeding and the Nation became wary of further economic
pillage. Expectedly, it has revived or shown the need for Nigeria to review her
arbitration policy especially as it affects to international commercial agreements
to which Nigeria is a party. This article therefore examines the impact of these
arbitral awards and the consequent enforcement proceedings commenced in foreign
jurisdictions vis-à-vis the sovereignty of Nigeria and the impact of these
debts on the nation’s economy.

Enforcement
of Arbitration Awards

Arbitration as a dispute resolution mechanism is only valuable to
the extent that parties can enforce an agreement to arbitrate and a resulting
award. Ordinarily, international law does not recognise the obligation to
arbitrate or enforce an arbitral award. However, contracting states can by
agreement impose such obligation on themselves. Therefore, where a state enters
into a bilateral treaty which provides for arbitration in the event of dispute,
the state is bound by the agreement to arbitrate and an award from such arbitration
will be enforced accordingly. This is in line with the principle of pacta sunct
servanda in international law.[1]

Further
to the foregoing, the New York Convention of 1958 (“the Convention”) makes
provisions for the direct recognition and enforcement of arbitral awards as
judgments of the courts of any state party, subject to review by that court on
the grounds of fairness, non-arbitrability, public policy and due process. As
at August 2020, the New York Convention has 165 state parties. By Article III of the
Convention, these state parties have the obligation, subject to the conditions
set forth in the Convention, to recognize arbitral awards as binding and
enforce them in accordance with the rules of procedure of the territory where
the award is relied on. Thus, foreign arbitral awards are enforced by state
parties to the Convention in the same manner and without additional obligations
as domestic arbitral awards.

A person against
whom an arbitral award is sought to be enforced has the burden of establishing
the invalidity of the award. This burden may be discharged by proving one of
the grounds provided in Article V of
the Convention. These grounds include: absence of a valid arbitration
agreement[2], lack of fair hearing[3], award in excess of jurisdiction
of the arbitral tribunal[4], improper composition or
procedure of the arbitral tribunal[5], award has not yet become
binding on the parties or has been set aside or suspended by a competent
authority in the country in which or under the law of the country in which it
was made[6]. In addition to the above
grounds, the court may on its own motion refuse to recognize and enforce an
arbitral award on the grounds that the subject matter of the dispute is not
arbitrable[7] and that recognition and
enforcement of the award will be contrary to the public policy of the country
of enforcement[8].

Generally, the courts
recognize and enforce international arbitral awards whenever possible. Thus,
application for recognition and enforcement under the New York Convention is seldom
refused.

Sovereign
Immunity

Under the doctrine
of sovereign immunity, a sovereign state may not, without its consent, be made
a defendant in the courts of another state. The policy behind this doctrine is
that national interest will be better served if disputes with parties who are related
to foreign powers are resolved through diplomatic negotiations rather than by
the compulsions of judicial proceedings. This doctrine has a number of
exceptions. The first is that where a vessel is the subject of controversy, a
claim of immunity will only succeed if the foreign government is able to show
that at the time the suit was filed, the ship was actually in its possession
and control.[9]
Secondly, foreign state-controlled corporations engaged in commercial
activities are usually subject to local jurisdiction. In addition to the
foregoing, sovereign immunity can be waived. In National City Bank v. Republic
of China[10], the Republic of China had brought
suit to recover a bank deposit.
The bank filed a counterclaim based on defaulted treasury notes of the Republic. The plaintiff claimed sovereign
immunity as a defense to the
counterclaim. The Court held that the Republic had waived its immunity by bringing suit, and that the
counterclaim would be permitted
even though it did not arise out of the same transaction as the original claim.

The doctrine of
sovereign immunity has evolved over time and states have gradually shifted from
the concept of absolute immunity to the concept of restrictive immunity.
Absolute immunity is the traditional principle that a sovereign cannot be made
a defendant in the court of another state. On the other hand, restrictive
immunity makes a distinction between commercial activities and sovereign
governmental activities.[11] In many jurisdictions, a
foreign sovereign’s immunity from proceedings in local courts is recognised
with regard to sovereign or public acts (jure imperii) of the state and not
with respect to private acts (jure gestionis)[12]. Consequently, sovereign
states cannot invoke the shield of sovereign immunity for disputes arising from
or assets stemming from commercial activities. The rationale behind this is
that where the government of a sovereign engages in business activities, it is
necessary to enable persons doing business with them to have their rights
determined in court. In National City Bank v. Republic of China[13],
the majority of the court approved, in principle, the restrictive theory of sovereign immunity.

It must be noted
that in arbitral proceedings, arbitrators derive their powers from the
arbitration agreement. The arbitration agreement constitutes a waiver of
immunity from jurisdiction. However, in the absence of express words to that
effect, immunity from execution is not waived by entering into an arbitration agreement.
Therefore, while a sovereign may waive his immunity from being a defendant
before a foreign court, such waiver hardly applies to execution of judgments
and awards.

The
asset of a sovereign is usually immune from execution except where the
sovereign consents to the execution in writing or where the relevant property
is used or intended to be used for commercial purposes. In Donegal International v. Republic of Zambia[14], the English court accepted the following waiver of immunity
clause as effective consent to execution:

“If
proceedings are brought against it or its assets, no immunity from those
proceedings (including without limitation, suit, attachment prior to the
judgment, other attachment, the obtaining of the judgment, execution or other
enforcement) will be claimed by or on behalf of itself or with respect to its
assets.”

On
the other hand, in L R Avionics[15], proceedings were brought
to enforce a judgment (together with an arbitration award) against the Federal
Government of Nigeria. L R Avionics was granted permission to register the judgment
in England and it subsequently obtained a final charging order in respect of
premises located in London, which were owned by Nigeria. The London premises
were leased to a company for the purpose of providing Nigerian visa and
passport services, amongst other things. Nigeria applied to set aside the
charging order on the basis that the property was immune from enforcement. It
was accepted that the use by a state of its own premises to carry out consular
activities such as providing visa and passport services, could not be said to
be a use for commercial purposes within the meaning of Section 13(4) of the
State Immunity Act 1978. However, the Court had to consider the position if,
instead of handling the applications itself, the state had granted a lease of
the premises to a privately-owned company, to which the processing services
were outsourced. The court held that the London premises were not being used
for commercial purposes within the meaning of the State Immunity Act but were being
used for a consular activity which, even if outsourced, is only carried out on
behalf of the state.

In
Botas Petroleum Pipeline Corporation v.
Tepe Insaat Sanayii AS[16], the Privy Council held
that the question of whether assets are state property is to be determined by
first considering whether the property was owned by the state or a separate
entity. Thus, the state must have some proprietary interest in the property for
immunity to be conferred. While separate entities may have close relationship
with the state, they are not covered by state immunity unless they are acting
“in exercise of sovereign authority”.

Additionally,
embassies, goods and monies held in banks account for a sovereign’s diplomatic
mission will not be generally available for enforcement.

A
Central Bank of a foreign sovereign is also given absolute immunity under
English law, subject to the written consent of the Central Bank. In AIC Limited v. The Federal Government of
Nigeria & Anor.[17], the question before the court was whether funds in a bank account
in the name of the Central Bank of Nigeria were liable to execution if those
funds were used or intended for use for commercial purposes. The court held
that even where the use of the funds would be commercial, the property of a
Central Bank should not be subject to execution. This English court also considered
and applied this reasoning in Thai-Lao
Lignite (Thailand) Co. Ltd. v. Government of the Lao People’s Democratic
Republic[18].

Arbitration
Awards as sovereign debt risks

Considering
the nature of arbitration and the minimal procedural delay in enforcing
arbitral awards, sovereign states may suffer debt risks on account of arbitral
awards made against them. First, such an arbitration award may be recognised and
enforced as a judgment of a court in any country that is a state party to the
New York Convention. Where an award is so recognised, the assets of the state
used for non-consular activities stand the risk of being attached to satisfy
the award.

It is
noteworthy that Eurafric Power has identified about 33 assets belonging to the
Nigerian government but situate in England, which are used for non-consular
activities and against which the company intends to enforce the arbitral award made
against the government of Nigeria. This was communicated through a letter by
the company’s counsel, Godwin Obla, SAN to the Attorney-General of the
Federation.

In
addition to identifying the assets a state judgment debtor and enforcing the
judgment debt against such assets, where the award was made
by the International Centre for the Settlement of investment Disputes (“ICSID”),
being an organisation of the World Bank, the centre could utilise the capacity of
the Bank to compel compliance. It is also noteworthy that the World Bank may
aid a judgment debtor even where the award is not a product of ICSID arbitration;
in so far as the award is made against a member of the World Bank.

The Way
Forward

In the light of the foregoing, it is recommended that there is
urgent need to review all existing bilateral agreements to which Nigeria is a
party. Nigeria has over 30 Bilateral Investment Treaties (“BITs”) signed with
various foreign countries, though only 15 of them are in force.
These BITs explicitly afford various forms of protection in cases of disputes
and provide a right of recourse to international arbitration. The BITs with
France, Germany, Korea, the Netherlands, and the United Kingdom provide
exclusively for ICSID arbitration. All the other BITs allow investors to pursue
an arbitration claim through ICSID or ad hoc arbitration in accordance with the
UNCITRAL rules or any other rules as the parties may mutually agree. It is
important to note that the seats of arbitration in these treaties are all
foreign. In any case, Nigeria is bound by these provisions of these BITs as
they have the force of law by virtue of being treaties as identified under Article
2 (1) (a) of the Vienna Convention on the Law of Treaties (VCLT), to which
Nigeria is a party.

However, by submitting to a foreign jurisdiction in a BIT, Nigeria
waives its sovereign immunity. Therefore, she can be made a party to
proceedings in a foreign court. The case of Libyan American Oil Co. (LIAMCO) v. Socialist People’s Libyan Arab Jamahirya[19] illustrates this. Around 1973/1974,
Libya nationalised LIAMCO’s rights under petroleum concessions that it had
granted nearly twenty years earlier. Dissatisfied with the compensation for its
interest and equipment, LIAMCO pursued arbitration and an award was rendered in
Geneva in favour of LIAMCO. When LIAMCO tried to enforce the award in the
United States, Libya opposed it by claiming, inter alia, that the Libya is
immune from proceedings in a foreign jurisdiction. The court denied Libya’s sovereign immunity claim on the
grounds that by agreeing to arbitration governed by foreign law, Libya waived
its sovereign immunity.

In
the light of the foregoing, there is therefore an urgent need to review these existing
BITs and all future BITs. It is suggested that future treaties be negotiated to
include a dispute resolution provision with Nigeria as the seat. With respect
to existing BITs, it is suggested that the provisions be renegotiated with the
aim of making Nigeria the seat of arbitration. Where renegotiation is not
possible, it is further suggested that the BITs be revoked. While it may be a
concern that revocation or termination of BITs may discourage investors and
reduce the inflow of foreign direct investments (“FDI”), recent studies have
shown than investment inflows are driven by a number of facts and the presence
of BITs is clearly not a determining factor.[20]

For
instance, Ecuador began to terminate BITs in 2018 and as at 2018, the overall
FDI stock into Ecuador increased by 38 percent, from $13 billion to $17
billion. Notably, after Ecuador terminated its investment treaty with Uruguay
in 2008, FDI from Uruguay into Ecuador increased by 420 percent, from an annual
average of $6.3 million before termination to $32.6 million after termination.
Similar indices are seen in Bolivia, South Africa and Indonesia.

The
article, therefore, calls on the Federal Government of Nigeria through the
office of the Attorney-General of the Federation, the Minister for Trade and
Investment and the National Office on Trade Negotiation to set up a committee
for the review of all bilateral agreements between Nigeria and foreign
entities.

Furthermore,
there is need to amend relevant statutes that govern investment promotion and
arbitration in Nigeria. This will help not only to protect Nigeria’s sovereign
immunity but also to improve the arbitration framework in Nigeria and make
Nigeria an arbitration hub.

It
is noteworthy that some countries are already taking steps in this regard. For
instance, South Africa enacted the Protection of Investment Act (the “PIA”) in
2015. The PIA creates a framework for the resolution of investment disputes in
South Africa. Section 13 of the PIA provides that where a foreign investor is
aggrieved by an action of the government, he may request the Department of
Trade and Industry to appoint a mediator to resolve the dispute. Alternatively,
the investor may approach any competent court, independent tribunal or
statutory body within South Africa for the resolution of such an investment
dispute.

Taking
a cue from the foregoing, especially given that investment treaty arbitration
is statute driven, there is need to review the relevant statutes governing
investment arbitration in Nigeria. These statutes include the Nigerian Investment
Promotion Commission Act, Cap N117, Laws of the Federation of Nigeria 2004
(“NIPC Act”). Specifically, Section 26 of the NIPC Act provides that disputes
between Nigeria and foreign investors shall be determined in accordance with
the provisions in the BITs. It is suggested that the provision of this section
be amended to include a proviso that notwithstanding anything contrary contain
in the BITs, the seat of the arbitration must be Nigeria where the dispute
arises between an investor and the Government of Nigeria.

It
is also recommended that the provisions of Arbitration and Conciliation Act
(Cap A18, Laws of the Federation of Nigeria 2004) (“the ACA”) which defines
international arbitration in Section 57(2)(b)(i) and (d) to include an
arbitration that has its place in a foreign country and where the parties agree
that the arbitration should be treated as an international arbitration should
be amended. Section 16 of the ACA which allows the arbitral tribunal to
determine the place of arbitration deserves a review to ensure it meets demands
of current reality in terms of national policy thrust vis-à-vis international frameworks.

Additionally, there is need for diligence in prosecuting
arbitration cases involving Nigeria. While granting Nigeria extension of time
to challenge the award in the P&ID case, the Queen’s Bench Division of the
High Court of England per Sir Ross Cranston noted that “there is strong prima
facie case
that (P&ID) main witness in the arbitration, Mr Quinn, gave a perjured
evidence to the Tribunal, and that contrary to that evidence, P&ID was not
in the position to perform the contract”. The judge also noted that there is
possibility that the counsel to the Nigerian government at preliminary and
jurisdiction stages of the arbitration was corrupted, in view of statements
made to the Economic and Financial Crimes Commission (“EFCC”) by the then Legal
Director of NNPC and the legal adviser to the Ministry of Justice in which both
persons admitted receiving $100,000 each from the said counsel while the
arbitral proceedings are pending.

Nigeria
should not merely rummage on allegations of corruption upon which it secured
its current reprieve but the consequential lack of broader policy,
institutional and professional protocols on Arbitration undertakings especially
where the Country is a party as a sovereign entity. The corruption allegations
might have buoyed up the UK Court in granting the relief sought by Nigeria for
extension of time, but the lessons should be of broader significance in terms
of fostering attitudinal change in people and procedure. For instance, a
National practice framework on international commercial arbitration and
adoption of critical principles that emphasize and guarantee sincerity,
selflessness, loyalty, conscientiousness and diligence in arbitral proceedings
to which Nigeria is a party, would be of wholesome effect. This will help to
curb the legal risks and economic implications of having an award rendered
against Nigeria.

Conclusion

Interestingly, the Honourable Attorney-General of the Federation,
Mr. Abubakar Malami has announced the Federal Government’s intention to launch
the National Arbitration Policy. Originally the brainchild of Dr. Olisa
Agbakoba, SAN, the policy is premised upon the concept that arbitration
agreements in respect of all disputes arising from contractual relationships in
Nigeria will have Nigeria as the seat of arbitration.

It is recognized that the implementation of this policy will
require statutory interventions and amendments, legislative advocacy, regulatory
frameworks review, policy directives and extensive stakeholders’ consultations
to ensure that the basic principles of international arbitration are upheld and
avoid the risk of engendering the Country to become an arbitration pariah state.
For instance, statutes which contain provisions on arbitration, especially
investment arbitration ought to be amended to accommodate this policy.

It is expected that with the implementation of the National
Arbitration Policy bearing in mind the suggestions made in this paper and other
critical opinion and contributions harmonized through series of consultations, Nigeria
would achieve a highly recognized and balanced status as an Arbitration
destination supported by systems that ensure the exposure to legal and economic
risks on account of arbitral awards rendered and enforced in foreign
jurisdictions will be greatly reduced.

Victor Akazue
Nwakasi                            Ugochukwu
Eze

Partner/Head– ADR/Arb. Group               
Associate Counsel, ADR/Arb.Group

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