#Employmentlaw: The Effect of Giving Inadequate Notice of Voluntary Resignation or Retirement — Kayode Omosehin, Esq.

by Legalnaija | Sep 8, 2020 | Uncategorized

There is some confusion
amongst human resources professionals and in-house counsel about the validity
and effect of an employee’s notice of resignation that is short of the period
agreed in the employment contract. Corollary to the foregoing is the issue
regarding whether an employer can reject an employee’s resignation letter for
any reason, including ongoing investigations or disciplinary proceedings
against the employee or inadequacy of the length of notice or other reasons of
the employee’s non-compliance with the employment contracts. In practice, many
employers include the power to reject an employee’s resignation letter in their
#HR policies or Employee Handbook without seeking legal advice on the propriety
of such power.

In law, every employee has
absolute right to resign at any time before termination of, or dismissal from
an employment. An employer has no discretion on whether to accept or reject a
resignation letter. Also, it is immaterial that the employer did not issue a
formal reply or acceptance of the resignation letter. The Courts have held that
all the employee needs to show is that the employer received the resignation
letter and that a rejection letter or email from an employer is an evidence
that the employer received the resignation letter. Whether the length of notice
of resignation is adequate or inadequate, once an employee indicates an
intention to leave an employment, any attempt by an employer to reject that
move or hold the employee down would amount to forced labour and would be
contrary to all known labour standards. In fact, the Court in Taduggoronno
v. Gotom [2002] 4 NWLR (Pt. 757) 453 CA specifically held that no
employer can prevent an employee from resigning from its employment to seek
greener pastures elsewhere.

The only point that needs to
made separately, in addition to the above, for emphatic purpose, is that an employer
cannot dismiss or terminate the employment of an employee who has given a
notice of resignation, notwithstanding the fact that he remains with the
employer during the notice period. This is because a notice of resignation
takes effect from the date it is received by the employer, not on the last
working day as erroneously believed by some employers who still engage in
post-resignation termination or dismissal.

What then is the
effect of inadequate notice of resignation? The
courts have held in Adetoro v. Access Bank Plc and many
other similar cases that where the length of notice of resignation given by an
#employee is less than the period agreed in the employment contract, then, the
notice is deemed to be with immediate effect. So, where, for instance,
the contract provides for termination or resignation by one (1) month’s notice
or salary in lieu, any notice that is short of the agreed period
will amount to RESIGNATION WITH IMMEDIATE EFFECT.

In law, the implication of
“Resignation with immediate effect” vary, depending on whether
the reason for exiting a company is #resignation or #retirement. Resignation
with immediate effect gives the employee the right to leave the employment
immediately and automatically, without any benefit and subject to the employee
paying his outstanding indebtedness (if any) to the employer. Please note that
the fact there is an outstanding indebtedness owed to the employer does not
entitle the employer to insist that the employee must continue to work for the
employer. It merely gives the employer the right to enforce its contractual
right to recover the amount owed. Retirement, however, does not appear to
confer on a retiring worker such a right to leave service immediately and
automatically. In OSHC v. Shittu [1994] 1 NWLR (Pt. 321) 476 CA,
the Court of Appeal (Benin Division) opined that a notice of voluntary
retirement does not entitle the employee to leave the employment immediately or
automatically, and that he or she would still remain in the employer’s service
(especially where the notice is rejected by the employer and the employee
returns to work). 

In that case, the employee
submitted his resignation with immediate effect and paid one month’s
salary in lieu of notice. The #employer rejected his
resignation and directed him to return to work immediately, to which the
respondent responded by another letter, wherein he maintained his stand of
resigning. The Court found that the employee never returned to work. The one
(1) month’s salary in lieu of notice paid by the employee was
never returned to him to show that his resignation was not accepted. The only
inference from all these facts, according to the Court of Appeal, was that the
employee never returned to his duty post and it could not be said that he was
back in the employment of the appellants.

But I need to point out the
extent of the effects of law’s prohibition of an employer’s rejection of a
resignation letter. The rejection of the notice of retirement is an unlawful
act, which the employer cannot rely on to make any claim against the employee
because doing so would amount to approbating and reprobating, thus, making the
employer a beneficiary of its own unlawful act. Indeed, the Court of Appeal in
the OSHC v. Shittu case held that”

“If the
cross-appellant (employee) had returned to his work with appellants, then the
appellants would be estopped from saying that he was no longer in their
employment and would have been held liable for any consequences arising from
their illegal conduct towards him with regard to his employment.”

The above statement was
an obiter dictum (a remark made in passing), which does not
command the respect or status of a binding judicial pronouncement. The National
Industrial Court refused to apply the above reasoning in Adetoro v.
Access Bank Plc (which was decided in 2016 by Hon. Justice B. B.
Kanyip of the National Industrial Court), where the employee’s resignation was
rejected by the employer twice for being inadequate and on ground that there
was an ongoing investigation about ATM imbalance against the employee. The
argument of the claimant is that the defendant was wrong to have deducted from
his gratuity and that because his two letters of resignation were rejected by
the defendant he remained an employee of the defendant until 20th March 2012
when his gratuity was paid to him. The National Industrial Court upheld the
argument on the unlawfulness of the deductions but rejected the argument on the
claimant being an employee after submitting his voluntary resignation,
notwithstanding the fact that the resignation letters were rejected by the
employer. The Court held that the employee could not sue for salaries and other
benefits after the date of resignation because he had ceased to be in the
defendant’s employment. The Court relied on Adefemi v. Abegunde
[2004] 15 NWLR (Pt. 895) 1 CA and Yesufu v. Gov. Edo
State [2001] 13 NWLR (Pt. 731) 517 SC, in holding that a notice of
resignation of an appointment becomes effective and valid the moment it is
received by the person or authority to whom it is addressed.

From the above, the lesson
for employers is very crucial and, so, can be summarized as follows:

–      the
right of an employee to resign without hindrance is still a good labour law and
best practice;

–      No
employer has discretion to reject resignation on account of any ongoing
investigation against the employee or his outstanding indebtedness or
inadequacy of the notice period given in the resignation letter;

–      Also,
any defect in a resignation letter cannot invalidate or impugn the right of an
employee the employment though it may deprive him or her some benefits which
would have been available if he or she resigns properly.

–      It
goes without saying, therefore, that the power to reject an employee’s
resignation letter in any staff #handbook, employee manual or #HR policy will
be unlawful and unenforceable to the extent of its inconsistency with
international best practice and labour standards in employment and labour
relations. The argument that an employee who signs an employment contract
giving the employer such oppressive power cannot later complain is beside the
point. Under Nigerian law, as stated in many cases, including the Supreme
Court’s decision in Menakaya v. Menakaya, public policy
forbids two parties from contracting out of a mandatory law.

Kayode Omosehin is a
Principal Associate and Notary Public at KORIAT & CO. in Lagos.

The Legal Practicalities Of The Use Of Blockchain As A Form Of Online Dispute Resolution (Part 2) | T. Koroye

by Legalnaija | Sep 2, 2020 | Uncategorized

THE
LEGAL PRATICALITIES OF THE USE OF BLOCKCHAIN FOR ONLINE ARBITRATION.

Asides the technical
inhibitions in the complete adoption of blockchain (such as technical know-how,
space for retention of data, protection of confidential information, etc.),^[1]
blockchain is not currently used in all earnest for offline commercial
international transactions due to the legal ambiguities; some of which have
been previously hinted on and addressed earlier on in this work. The legal
uncertainties span from the questionability of the legality of a smart
arbitration contract (and if it falls under the ambit of forced consent of
parties who decide to use blockchain as an online platform) to the
enforceability of the arbitral awards. Thus, the legal uncertainties arise from
the initiation of the arbitration agreement through blockchain, to the
recognition of the award by the State. This work will however, limit itself to
the ambiguities to the applicable law of arbitral proceedings (lex situs) and the practicability of
the enforcement of the award.

I.                  
Lex
Situs in Blockchain Arbitration.

An essential and admirable
feature of Blockchain is its decentralised nature, as it operates on a
peer-peer operational system, above any regulatory authority.^[2]
This, however, poses a legal uncertainty as to the governing law applicable to
the international commercial dispute, also referred to as lex situs. Most
international arbitration statutes recognise this, as provided in Article 14 of the International Chamber of
Commerce (ICC) Arbitration Rules^[3]
and Article 16 of the London Court of International Arbitration (LCIA)
Arbitration Rules.^[4]  This position is recognised in the case of Hiscox
v. Outhwaite^[5] where the House of Lords held that the
seat of the award is where the contract was signed. The seat of arbitration
will determine the level of State intervention into the arbitration process
(concerning the arbitration theory employed by the State) and the arbitrability
of the subject matter (as was held in the case of Soleimany v. Soleimany^[6]).
The seat of arbitration also determines the degree to which the arbitral award
can be challenged.

Legal jurists hence have
criticised the practicality of the use of blockchain as a platform of online-
arbitration as Smart Contracts are enabled through distributed nodes, which cut
across multiple legal jurisdictions, especially on instances of international
contracts, consequently obfuscating the actual lex situs.^[7]
In rectifying this uncertainty, scholars have proposed that the arbitrators can
apply the principle of ex aequo et bono by resolving the
dispute on what is deemed fair and just, on instance of no clear applicable
law.^[8]
Hence, arbitrators in blockchain assume the powers of amiable compositeur^[9]
to carrying out their duties. This position has been criticised due to the very
nature of the technology itself, as it excludes parties through “forced
consent”^[10]
from expressly vesting arbitrators the powers to apply the principles of ex
aequo et bono.^[11]

Another theory proposed by
legal jurist is the adoption of the jurisdiction of the Fifth party in the
arbitration agreement (referencing the provider of the online-arbitration
service) as the lex situs of the
dispute.^[12]  This theory proposes that the service
provider maintain a degree of responsibility as owners and maintainers of the
service, and therefore can be accorded the appropriate seat of arbitration.^[13]
This position has been given judicial credence in the cases of re
Tezos Securities Litigation^[14] and Alibaba Group Holdings Ltd v.
Alibabacoin Foundation et al^[15]
where the U.S Courts, in determining issues relating to cryptocurrency and
blockchain, held inter alia that ‘the physical location of the verifying nodes’
is an important factor in determining the jurisdiction of the court.^[16]
This writer finds this theory persuasive, as it provides a practical resolution
to this legal debacle.

II.              
Enforcement
of the award.

As stated earlier, the New
York Convention stipulates in Article V
the prerequisites of a valid arbitral award, stating that it must written for
it to be recognised and enforced in another State.^[17]
This is necessary because the enforcement of an award requires judicial
assistance of the State where the award is to be recognised.^[18]
States are empowered to decline enforcement of an award in its jurisdiction on
the ground of public policy. Blockchain, however, provides an automatic
execution of the arbitral award through Smart Contracts for online disputes
relating to cryptocurrencies.^[19]

Advocates for the inclusion
of blockchain argue that this is a redeeming factor of the technology, as it is
an effective and practical implementation of the award without encumbrances.^[20]
This has been criticised by legal scholars who are of the view that this is a
deviation from traditional commercial practice as it automatically enforces the
award (this mostly involves the transfer of cryptocurrencies from one wallet to
the other) by bypassing the public policy position of the State.^[21]
This school of thought also argue that such an enforcement will disregard the
principle of favor debitoris^[22]
which protects the interests of the debtor of the award to ensure his
rights are not violated in enforcement.^[23]

CONCLUSION/RECOMMENDATION.

As contractual relations
become autonomous through novel technological platforms, the role of dispute
resolution is also expected to adopt to the changes. The procedure of ‘old
wine, new bottle’ approach proposed by traditionalists is ill fitted here, as
with new frontiers comes new challenges. An example is the blur of boundaries
between procedure and execution in Smart Contracts. As legal jurists propose,
the use of blockchain creates more problems than it actually aims to resolve
due to its uncertainties from its ambiguous definition to concept of
decentralisation.^[24]

Regardless of legal
skepticisms, Blockchain has been adopted as an ODR platform to resolve online
disputes concerning cryptocurrencies. This, however, has not been implemented
into offline transactions despite its numerous advantages. Reasons for this are
not farfetched, as blockchain is riddled with legal uncertainties. The
technology has been related to the Wild West where there exists little or no
regulations, and all innovators are in a virtual race to the most reliable.^[25]
This writer, however, opines that this is a necessary process to streamline the
technology into a more favorable legal platform. Traditional commercial
practice emerged through centuries of practice by traders, referred to as lex
mercatoria.^[26]
This organic evolution is also the essential trigger of the internationally
accepted concept of arbitration. This legal Darwinism is essential for
regulation standards that are intricately interwoven with Blockchain and its
services, as not all old wines fit into new bottles. This is essential because
the proposals from jurists that Blockchain should be ‘centre-regulated’ negates
the entirety of the technology itself, as it operates on a decentralised,
peer-to-peer assessed medium.

This writer agrees with the
suggestion of the use of the ‘Oracle’^[27] in
the blockchain platform to serve as an interface between the technology and the
real world, to reflect the data and agreements of parties that are not encoded
into the Smart Contract.^[28]
This can include parties’ agreement on the use of arbitrators on instance of
conflict, choice of law applicable, seat of arbitration and the enforcement
procedure.^[29]
These updates can act as the necessary restrictions of the automatic nature of
Blockchain during arbitral proceedings, making it more suitable to resolve
offline commercial issues, resolving most of the highlighted legal issues.

In conclusion, blockchain is
relatively a new technology, and the extent of its potential, either alone or
mixed with another sector such as arbitration, are currently unknown. The
unknown, however, will so remain, if depths are not pushed. Blockchain will
revolutionise the commercial world, and as consequence, the legal world as
well.

BIBLIOGRAPHY.

CASES.

1. Alibaba
   Group Holdings Ltd v. Alibabacoin Foundation et al No. 18-02897, Southern
   District of New York
2. Hiscox
   v. Outhwaite [19911 2W.LR. 1321 (C.A.)
3. re
   Tezos Securities Litigation 17-CV-06779-RS,D.N.D.Cal.
4. Soleimany
   v. Soleimany [ [1999]  3  All 
   ER 847

STATUTORY
INSTRUMENTS.

5. United
   Nations Convention on the Recognition and Enforcement of Foreign Arbitral
   Awards of 1958, 330 UNTS 38
6. United
   Nations Commission on International Trade Law [UNCITRAL Model law on
   International Arbitration UN Doc A/40/17, Annex I

BOOKS

7. Bercovitch
   J, Kremenyuk V, Zartman W I. ‘The SAGE Handbook of Conflict Resolution’,
   (1st edn,  SAGE, 2008)
8. Duchateau
   M et aul, Evolution in Dispute Resolution : From Adjudication to ADR
   (Governance & Recht), (Eleven International  Publishing, 2016
9. Fiadjoe
   A, Alternative Dispute Resolution; A Developing World Perspective (Taylor
   & Francis Group, 2004)
10. Katsh
    E and Rifkin J, Online Dispute Resolution: Resolving Conflicts in
    Cyberspace, (Wiley, 2001)
11. Laudon
    K C, E-Commerce: Business. Technology. Society, (13th edn, Harlow: Pearson,
    2019)
12. Newcombe
    A and Paradell L, Law and Practice of Investment Treaties: Standards of
    Treatment, (Kluwer Law, 2009)
13. Reisman
    W. M et al, International Commercial Arbitration, (2nd edn, West Academic,
    2015)
14. Solovay
    N and Reed C K, The Internet and Dispute Resolution: Untangling the Web,
    (Law Journal Press, 2003)
15. Vide
    CR, Favor Debitoris: Ana´lisis Crı´tico (Temis, Madrid 2010).

JOURNALS

16. Dahiyat
    E A R, ‘A Legal Framework for Online Commercial Arbitration in UAE: New
    Fabric but Old Style, (2017) 26 ICTL 272
17. DiMatteo
    L A and Poncibo C, ‘Quandary of Smart Contracts and Remedies: The Role of
    Contract Law and Self-Help Remedies’ (2018) 26 European Review of Private
    Law 805.
18. Ebner
    N and Zeleznikow J, ‘No Sheriff in Town: Governance for Online Dispute
    Resolution : Governance for Online Dispute Resolution’, (2016) 32
    Negotiation Journal 297
19. Exon
    S N, ‘Ethics and Online Dispute Resolution: From Evolution to Revolution’,
    (2017) 32 Ohio St. J. on Disp. Resol. 609, 616
20. Goldenfien
    J and Leiter A, ‘Legal Engineering on the Blockchain: ‘Smart Contracts’ as
    Legal Contract, (2018) 29 Law Critique 141
21. Gurkov
    A, ‘Blockchain in Arbitration Development: Multi-Signature Wallet
    Showcase’ (2018) 2 IJODR 63
22. Johnson
    M E and Loone P, ‘ Court’s second ’07‐’08
    ADR case challenges arbitrator supremacy’, (2008) 26 Alternative DR,  5
23. Katsh
    E, Rifkin J and Gaitenby A, ‘E-Commerce, E-Disputes and EDispute
    Resolution: In the Shadow of “eBay Law”’, (2000) 15 OMiO ST. J.
    DiSp. RESOL. 705
24. Lainer
    T J, ‘Where on Earth Does Cyber-Arbitration Occur? : International Review
    of Arbitral Awards Rendered Online, (2000) 7 ILSA Journal of International
    & Comp. Law, 1
25. Low
    K F K and Mik E, ‘Pause The Blockchain Legal Revolution’, (2020) 69 ICLQ
    135
26. L.Q
    H, ‘Online Dispute Resolution Systems: The Future of Cyberspace Law’,
    (2001) 41 SCLR 354
27. Mania
    K, ‘Online Dispute Resolution : The Future of Justice,’(2015) 1, ICJ, 76
28. Micheler
    E and Heyde Lv, ‘Holding, Clearing and Settling Securities Through
    Blockchain/Distributed Ledger Technology: Creating an Efficient System by
    Empowering Investors’, (2016) 11 J. Int’l Banking & Fin. L. 652, 653
29. Mik
    E, ‘Smart Contracts: Terminology, Technical Limitations and Real World
    Complexity, Law, Innovation and Technology’, (2017) 9 LITJ 269, 280
30. Ortolani
    P, ‘Self-Enforcing Online Dispute Resolution: Lessons from Bitcoin’,
    (2016) 36 OJLS, 602
31. Ortolani
    P, ‘The Impact Of Blockchain Technologies And Smart Contracts On Dispute
    Resolution: Arbitration And Court Litigation At The Crossroads’, (2019) 24
    Unif. L. Rev, 430
32. Rabinovich-Einy
    O and Katsh E, ‘Digital Justice: Reshaping Boundaries in an Online Dispute
    Resolution Environment’, (2014) 1 IJODR 5.
33. Shaikh
    Z A and Lashari I A, ‘Blockchain Technology the New Internet’, (2017) 6
    IJMSBR 4
34. Shehata
    I, ‘Three Potential Benefits of Blockchain for Arbitration’, (2018) 31 YAR
    32
35. Smith
    S S, ‘Implications of Next Step Blockchain Applications for Accounting and
    Legal Practitioners: A Case Study’, (2018) 12 AABFJ 78
36. Xuhui
    F,  ‘Recent ODR Developments in
    China’, (2017) 2 IJOR 35
37. Young
    B, ‘World Wrestling Federation Entertainment Inc. v. Michael Bosman:
    ICANN’S Dispute Resolution: ICANN’S Dispute Resolution Policy at Work’,
    (2000) 3 I N.C.J.L & Tech
38. Yu
    H, ‘A Theoretical Overview of the Foundations of International Commercial
    Arbitration’, 2008, 1(2) CONTEMP.ASIA ARB. J. 255

INTERNET
SOURCES.

39. Ashish
    Chugh, ‘Why We Don’t Need Blockchain to Manage Cases in International
    Arbitration’, (Kluwer Arbitration, 2018)

    Why We Don’t Need Blockchain to Manage Cases in International Arbitration

    
    accessed 10th April 2020.

40. Association
    for International Arbitration, ‘Electronic Consumer Dispute Resolution’,
    (Arbitration-Adr, 2020)
    https://www.arbitration-adr.org/resources/?p=serviceproviders&a=show&id=40
    accessed 1st April 2020.
41. BENOAM,
    (Benoam, 2020) https://benoam-tech.com/ accessed 8th April 2020
42. Chamber
    of Digital Commerce, ‘“Smart Contracts” Legal Primer Why Smart Contracts
    Are Valid under Existing Law and Do Not Require Additional Authorization
    to Be Enforceable’ (Digital Chamber, January 2018),
    https://digitalchamber.org/wp-content/uploads/2018/02/Smart-Contracts-Legal-Primer-02.01.2018.pdf  accessed 8th April 2020.
43. Chris
    Skinner, ‘The Wild West of Crypto’, (The Finanser, 2019) https://thefinanser.com/2019/12/the-wild-west-of-crypto.html/
    accessed 10th April 2020
44. Chandru
    Ganesh, ‘Arbitration as a Dispute Resolution Mechanism for the Domain Name
    System’, (WIPO, 1999) https://www.wipo.int/amc/en/domains/ accessed 8th
    April 2020.
45. Civil
    Justice Council, ‘Online Dispute Resolution for Low Value Civil Claims,
    (UK Judiciary, 2915)
    https://www.judiciary.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf   accessed 8th April 2020.
46. Crunchbase,
    ‘eQuibbly’, (Crunchbase, 2012)
    https://www.crunchbase.com/organization/equibbly accessed 9th April 2020
47. ebay,
    ‘Dispute Resolution Overview’, (eBay, 1995), 
    https://pages.ebay.com/services/buyandsell/disputeres.html  accessed 8th April 2020
48. Emmanuel
    Gaillard, ‘Transcending National Legal Orders for International
    Arbitration’, (ICCA, 2013)
    https://www.arbitration-icca.org/media/8/37646744616595/gaillard_20131001_eg_book-congress-series-no-17_transcending-national-legal-order.pdf
    accessed 10th April 2020
49. Fabian
    Frank, ‘Consent Management on the Ethereum Blockchain’, (Univeristy of
    Twente, 2018) 
    https://essay.utwente.nl/76745/2/Frank_MA_BMS.pdf accessed 10th
    April 2020
50. Fredrik
    Milani, ‘Blockchain Oracles’, (University Of Tartu, 2019)
    https://comserv.cs.ut.ee/home/files/Mammadzada_MasterThesis_ITM.pdf?study=ATILoputoo&reference=B913660BDAEE6C01D5D887A09A79331E898F990F
    accessed 11th April 2019
51. FINRA,
    ‘Arbitration Process’, (Finra, 2014)
    www.finra.org/ArbitrationAndMediation/Arbitration/Process/ accessed 9th
    April 2020
52. Graham
    Ross, ‘Challenges and Opportunities in ODR’, (Mediate, 2003)
    https://www.mediate.com/Integrating/docs/ross.pdf accessed 9th April 2020
53. Ibrahim
    Shehata, ‘Arbitration of Smart Contracts Part 2- Recommendations for the
    Future Landscape Smart Contracts’, (Kluwer Arbitration, 2018)

    Arbitration of Smart Contracts Part 2 – Recommendations for the Future Landscape of Smart Contracts

    
    accessed  8th April 2020

54. ICC,
    ‘Arbitration Rules’, (ICC, 2017)

    2021 Arbitration Rules

    
    accessed 9th April 2020

55. ICANN,
    ‘Domain Name Dispute Resolution Policies’, (ICANN.ORG, 2020)
    https://www.icann.org/resources/pages/dndr-2012-02-25-en accessed 8th
    April, 2020
56. Internet-ARBitration,
    (Net-ARB, 2005) https://www.net-arb.com/ accessed 8th April 2020
57. Ihab
    Amro, ‘Online Arbitration in Theory and in Practice: A Comparative Study
    in Common Law and Civil Law Countries’, (Kluwer Arbitration, 2019) 
    http://arbitrationblog.kluwerarbitration.com/2019/04/11/online-arbitration-in-theory-and-in-practice-a-comparative-study-in-common-law-and-civil-law-countries/
    accessed 8th April 2020
58. Jelena
    Madir, ‘Smart Contracts: (How) Do They Fit Under Existing Legal
    Frameworks?’, (SSRN, Dec 2018)
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3301463  accessed 8th April 2020 
59. LCIA,
    ‘LCIA Arbitration Rules’, (LCIA, 2014)
    https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx
60. Michael
    Crosby et al, ‘BlockChain Technology: Beyond Bitcoin’, (Berkeley,
    2015) 
    https://scet.berkeley.edu/wp-content/uploads/BlockchainPaper.pdf
    accessed 8th April 2020
61. Osinachi
    Nwandem Victor, ‘Online Dispute Resolution: Scope And Matters Arising’,
    (Elsevier, 2015),
    <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2592926>
    accessed 8th April 2020
62. Satoshi
    Nakamoto, ‘Bitcoin: A Peer-to-Peer Electronic Cash System’ (Bitcoin 2008)
    https://bitcoin.org/bitcoin.pdf accessed 9th April 2020
63. Stephan
    W. Schill, ‘Lex Mercatoria’, (OPIL, 2014)
    https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1534
    accessed 10th April 2020
64. SquareTrade,
    (Square Trade, 2020) http://www.squaretrade.com accessed 9th April 2020
65. The
    Mediation Room, (the Mediation room, 2020)
    http://www.themediationroom.com. accessed 8th April 2020
66. UNCITRAL,
    ‘Technical Notes on Online Dispute Resolution’, (UNCITRAL, 2020) 
    https://www.uncitral.org/pdf/english/texts/odr/V1700382_English_Technical_Notes_on_ODR.pdf
    accessed 3rd April 2020
67. WIPO,
    ‘Alternative Dispute Resolution’, (WIPO, 2020),
    https://www.wipo.int/amc/en/ accessed 8th April 2020
68. WIPO,
    Guide to the Uniform Domain Name Dispute Resolution Policy (UDPR), (WIPO,
    2020) https://www.wipo.int/amc/en/domains/guide/ accessed 28th March 2020
69. US
    Census Bureau, ‘E-stats’, (Us Department of Commerce, 2019)
    www.census.gov/eos/www/2007/2007reportfinal.pdf , accessed 8th April, 2020

The Legal Practicalities Of The Use Of Blockchain As A Form Of Online Dispute Resolution (Part 1) | T. Koroye

by Legalnaija | Sep 2, 2020 | Uncategorized

INTRODUCTION

Conflict is an integral part
of society and in all facets of human interactions and relations, prompting the
development of means and avenues for the resolution of those conflicts, either
through exaggerated violence, or other peaceful means.^[1]
These avenues of dispute resolution have evolved over the centuries, from
settlement by the elderly, to royal or religious institutions, to the
institutions set up and recognised by the State.^[2] Most
developed and developing societies have adopted the State’s means of dispute
resolution, which is the recognition of the Court system to resolve issues
ranging from personal grievances to complex contractual matters.^[3]

The increasing complex
nature of disputed issues and industry, the number of contracting parties
involved, and the increasing strain on the court system due to the number of
issues to be resolved with limited resources, necessitated the rise of Alternative Dispute Resolution systems
(hereinafter ADR).^[4]
ADR comprises of, but is not limited to, mediation, negotiation and
arbitration. With growing interest from contracting parties, both national and
international, on the inclusion of an arbitration clause in their commercial
agreements as the first form of resolution on instance of a dispute, States and
the international community have developed robust regulatory regimes for the
recognition and enforcement of arbitral awards.^[5] The United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention)^[6]
is the foremost international treaty for the standardisation of arbitration by
States, regardless of their internal theory of recognition, such as the
jurisdictional, hybrid and autonomous theories.^[7]

In recent decades, the
nature of commercial transactions have evolved, due to the rise of
globalisation and digitalised platforms, prompting the emergence of a new
medium of dispute resolution referred to as Online Dispute Resolution (ODR), revolutionising dispute settlement
through its prompt and cost effective process.^[8] The
existence of ODR relies on the
virtual prowess of Information and
Communication Technology (ICT), which constantly evolves with innovations.
The emergence of Blockchain as a disruptive technology on not just the
commercial industry, but including real estate, health-care, content
distribution, etc., has drawn an enquiry on the applicability of the technology
as a means of dispute resolution.^[9]
This work will explore the nature of online dispute resolution and blockchain
as a disruptive technology, and the legal practicalities of adopting same as a
form of ADR for international commercial transactions.

With the aim of analysing
theoretical and practical aspects of the central theme, this work is so
structured to highlight the necessity for the emergence of ODR, as well as the
different outlooks at its definition. This work also addresses Online
Arbitration as a concept, the practicalities and challenges in today’s
commercial society (if any) and the modes the practice is effected. This
analysis also addresses the Blockchain technology, its operations and
applicability in conducting online arbitration. In conclusion, this writer will
give his researched recommendations on the legal practicality of using
Blockchain as a form of dispute resolution. 

EMERGENCE
OF ONLINE DISPUTE RESOLUTION (AN OVERVIEW)

Through the medium of the
internet and ICTs, contracting parties from different nations are able to
conduct and conclude commercial transactions (e-commerce)^[10],
with little or no human contact. This interconnected nature of e-commerce has
made dispute resolution complex, as the transactions can involve multiple
jurisdictions.^[11]  With the astronomical growth of commercial
activities in the Cyberspace (e-commerce transactions accounted for $1,856
billion of manufacturing shipments in the United States in 2008^[12]),
the necessity of a viable dispute resolution system was recognised.^[13]
As aforementioned, there are already established mechanisms to recognise and
enforce the rights of parties, from the traditional adjudication procedures, to
the erstwhile Alternative Dispute Resolution systems, which are inundated with
documented challenges.^[14] 

With the advancements made
in information technology law, and the growing need of an expedient and cheaper
method of dispute resolution,  the  Centre de recherche en droit public
(CRDP) at the University of Montréal started the project known as ‘CyberTribunal’ in 1996, which offered
customers online mediation and arbitration services in resolving disputes
arising with traders online.^[15]
The CRDP project presented the necessary research on the practicability of
conducting computer based disputes resolution with advantageous convenience.^[16]

In January 2000, an
international legal dispute on domain name was completely resolved online by
parties and an arbitrator, all located in different States, birthing the first
use of the internet as a means of dispute resolution. This led to the
formulation of the Internet Corporation
for Assigned Names and Numbers (ICANN ^[17])
administered by eResolution, an organisation set up to resolve domain name
disputes.^[18]
This promoted the emergence of SquareTrade,
which offers online mediation services for disputes arising out of eBay
transactions.^[19]
The successes of these systems in administering ADR for online disputes
stimulated the recognition of ODR by legal practitioners and technology
enthusiasts.

ODR is defined as the
‘practice of resolving disputes via the Internet or digital applications.’^[20]
Legal scholars postulate that ODR is mainly another aspect of, or is
synonymous, to ADR, but enabled through the internet and ICT services.^[21]  This theory argues that ODR employs the
traditional means of mediation, arbitration and negotiation in settling
disputes virtually, with a ‘Fourth
Party’ being the technological platform used, and the ‘Fifth party’ being the provider of 
the service.^[22]

There is the argument that
ODR is not the simple adoption of virtual services in resolving a dispute, as
it also acts as a medium of prevention of commercial disputes that occur within
and outside the internet.^[23]
This school of thought proposes that, as all novel systems, ODR involves new
tools/skills, techniques and assumptions for its effective applicability,
hence, making it distinct from the traditional ADR.^[24]
Some examples of the distinctive features of ODR from ADR is the lack of
face-to-face interaction between parties and the automatic record of all
dispute data.^[25]
ODR platforms also have fully automated dispute resolution processes which
makes use of developed algorithms in resolving disputes.^[26]

ADR, although developed as a
private-sector based regulatory regime, currently has governance introduced for
certification and ethical behavior models.^[27]
Proponents of this theory propose that ODR should have organic emergence of its
own regulations and governance.^[28]
It is proposed by jurists of this school of thought that ODR can generate its
own internal system of governance, with premise on both I.T. law and ADR. This
is has been coined as Legal Darwinism.^[29]  This writer finds this school of thought on
the nature of ODR more persuasive, as the system, although adopts the
traditional forms of ADR, exists on a distinct medium which requires its
individualistic set of rules, skills and governance.^[30]

ODR has grown over the past
decade to be a recognised form of dispute settlement by States and
international bodies. The European
Commission initiated the Electronic
Consumer Dispute Resolution (ECODIR)^[31]
project for the virtual resolution of disputes between Europeans and
cybersellers.^[32]
The United Nations Commission on
International Trade Law (UNCITRAL) has also adopted its Technical Notes on Online Dispute
Resolution^[33]
in recognition of ODR. The World
Intellectual Property Organisation (WIPO) is another international entity
that has also adopted ODR through the Uniform
Dispute Resolution Policy.^[34]

Although States such as the
United Kingdom (UK),^[35]  and the United States of America (U.S.) are
keen on the adoption of ODR as part of their multi-door courtroom system, ODR
is mainly employed by the private sector, with institutions such as eBay
setting up comprehensive ODR mechanism to resolve disputes arising out their
transactions.^[36]
There are other ODR platform service providers, who use specific dispute
resolution applications, such as Benoam^[37] and
the Mediation Room.^[38]
This work will limit itself to the use of ODR by the private sector for
commercial transactions dispute resolution.

As aforementioned, ODR makes
use of ADR such as mediation, arbitration and negotiation. This work however,
will limit itself to Online Arbitration, in consideration of the implication
and legal feasibility of the novel Blockchain technology in settling arbitarble
disputes online. To understand this, an analysis of the nature of Online
Arbitration is expedient.

ONLINE
ARBITRATION.

Online arbitration, also
referred to as electronic-arbitration (e-arbitration), is one of the foremost
aspects of ODR in resolution of cross-border e-commerce disputes through an
asynchronous process,^[39]
although it is not rampantly in use as online-mediation.^[40]
E-arbitration is currently used mostly in the resolution of conflict arising
from domain names.^[41]
A claimant, who intends to settle the dispute through e-arbitration, initiates
the process by submitting statement of claim, indicating relevant facts and
remedies, to the ODR platform.^[42]
Examples of ODR platforms that render such services are WIPO Arbitration and Mediation Centre,^[43] internet-ARBitration (net-ARB)^[44]
and eQuibbly.^[45]  The arbitration agreement is concluded with
the arbitral process conducted virtually, as parties (claimant and respondent)
virtually select an arbitrator from the list of accredited arbitrators
registered with the ODR platform.^[46]
Either parties are entitled to raise objections as to the arbitrator.

E-arbitration can be
conducted through e-mail, as all the documents for filing, as well as evidence
and written submissions are filled through e-mail. This also includes the
interaction between the arbitrator and the participating parties.^[47]  Online arbitration also uses the mode of
video-conferencing, by virtue of the ODR service provider.^[48] The
first award settled under the online-arbitration platform of WIPO on a dispute
on domain name was the case of World Wrestling Federation Entertainment,
Inc, v. Michael Bosman^[49].

The
New York Convention stipulates, through Article II Clause 1, that for an arbitration award to be validly
recognised internationally, there must be a written form of agreement on the
instance of a dispute in an international trade.^[50] The
term ‘written’ is described by the Convention to include the “exchange of
letters or telegrams”,^[51]
which provides a liberalized interpretation of the term by State signatories
indicating minimum requirements.^[52]
Article IV(I) makes provisions that
an arbitral award should be in writing, signed by the arbitrator(s) on the
original or certified copy of the award.^[53] The
UNCITRAL Model law on International Arbitration has broadened
this position, by providing that an arbitration agreement can be documented via
telex, telegram or other means of telecommunication, which records the
agreement.^[54]
This position is indicative of the recognition of the online arbitration by
States that have adopted the UNCITRAL model law interpretation as well.

Hence, on the premise of the
interpretation by the UNCITRAL Model law, online-arbitration fulfills the
necessary requirements of a valid arbitration agreement by the New York
Convention, as it involves written agreements of parties to submit the dispute
to an arbitral panel either, as provided by the ODR platform.^[55]
Legal jurists, who claim the use of ODR excludes parties from voluntarily
submitting to the arbitration panel, have challenged this position using the
WIPO model as a case study as that of mandatory arbitration.^[56]

Scholars have also argued
that on the instance of both parties failing to agree on the lex
situs, the ODR platform will have to select the jurisdiction where the
arbitration will be conducted.^[57]
The lex
situs is an essential part of an arbitration proceeding as it dictates
the procedural law that is applicable to the arbitral panel, and possibly
influence and determine the outcome of the case.^[58]
Enforcement of the award however, is not as straight forward, as legal scholars
have raised arguments against the governing laws of the arbitration, as
e-commerce transactions involve multiple jurisdictions.^[59]
These arguments will be succinctly addressed subsequently in relation to
e-arbitration and blockchain.

Although e-arbitration is
not fashionably applicable to offline commercial disputes (as most of the
disputes that occur with this medium relate to conflict on domain name) due to
the legal uncertainties,^[60]
parties however make use this ODR service due to its convenience. Parties can
conclude dispute resolution processes through a virtual medium unlike in
traditional ADR.^[61]
This makes online arbitration more cost effective and cheaper that other ADR
means.

THE
TECHNOLOGY KNOWN AS BLOCKCHAIN

The phrase, ‘one size fits
all’ very much applies to the description of Blockchain, as it is one of
the  21^st century trending
subjects due to its diversity and transformative potential in application in
most aspects of human interaction.^[62]
Regulators, academics, legal practitioners and technology enthusiasts all are
promoting the inclusion of the blockchain into various industries, with
arguments of numerous advantages.^[63]
Blockchain is the foremost Decentralised
Ledger Technology (DLT) that allows network members to share, store and
transmit information in a continuous manner in the form of ‘blocks’.^[64]
These blocks contain series of data from past transactions accessible to
participants of the network with either a private or public key.

Satoshi Nakamoto introduced
the concept of Blockchain in 2008 in his paper on bitcoin and the great
financial revolution introduced by cryptocurrencies.^[65]
However, this sparked interest into the technology itself and stretched beyond
financial activities to include governance, real estate, entertainment and
voting, etc.^[66]

The types of blockchain
depends mainly on the members of the network with access to the block, as there
are permissioned and permissionless blockchains, which can be sub-divided into
four categories: the public and private permissionless, as well as the
private  and public permissioned.^[67]
Blockchain performs on two principal mechanisms, which are a decentralised and distributed network (which ensures that the
technology can survive data breaches and other malevolent attacks as there is
no regulatory central authority),^[68]
and consensus approval (where new
blocks are added on validated approval by members of the network).^[69]
These two mechanisms make blockchain a well-secure technology for sensitive
data storage and protection.^[70]
 

It is imperative to state
that Smart Contracts are an essential aspect of blockchain, as they possess the
computerized transaction protocol that executes the terms agreed on by
participating parties in the network.^[71]  Legal scholars, who hold more traditional
views, have postulated that Smart Contracts can never be legal contracts as
they lack the foundations of a contract, such as consensus ad idem, offer,
acceptance and intention to enter into legal agreement, and thus fails to
qualify under the provisions of the New York Convention.^[72]
This writer humbly disagrees with this position, as the UNICTRAL model law has made profound interpretation of Article II, to include any form of
communication. The communication carried out through blockchain is through
algorithms, and the subsequent signing in by parties with their private keys
can transcribe the intentions of parties to be subjected to same, and can be
interpreted to cover the legal concepts of offer and acceptance.^[73]

Consequently, Developed
States are on the verve of incorporating blockchain into the State recognised
ODR platforms. An example of this is the application of blockchain technology
by the Chinese government to the Hangzhou
Westlake Court with a planned cooperation by the Hangzhou Blockchain Technology Research Institute to use blockchain
technology to prevent tampering with digital evidence. In addition, the
Guangzhou Arbitration Commission has issued the first arbitral award based on
the ‘Arbitration Chain’.^[74]

How
is Blockchain applicable to online arbitration?

As aforementioned,
blockchain is a buzzing topic in today’s legal sphere, as legal practitioners
and technology enthusiasts deliberate on the nexus between the two spheres,
especially concerning international commercial arbitration. Arbitration
practitioners have argued that blockchain is not a suitable platform to conduct
arbitral proceedings, stating that the technology is “quite slow and expensive
to store massive volumes of data.”^[75]  This writer humbly disagrees with this
position, as, although, the use of a public permissionless blockchain might be
slow to store such data, private permissioned blockchain is the best suited for
online-arbitration, as it has the potential to process thousands of
transactions per second with low costs.^[76] 

Within the bitcoin system,
users have formulated a private adjudication system that works essentially with
two digital keys (public or private), as parties can have access to the coins
without dispute.  However, on an instance
of a conflict, parties can contact a private adjudicator, who will have a third
access key into the network to assess the facts through the blocks and trace
the origination of the dispute, to determine the case.^[77]  Blockchain as a form of transnational
arbitration uses ‘multi-signature address’ system, which is highly
self-sufficient and operates outside the influence of the State.^[78]
A multi-signature address allows private parties to set up a dispute resolution
procedure that is effectively able to enforce its own outcomes.^[79]
Due to its technical and decentralised attributes, blockchain is argued to be
the most practical and advanced form of online-arbitration.^[80]

As Smart Contracts are self-executing,
it raises the question of the possibility of the necessity of third party
enforcement, as dispute resolution is considered to be rendered obsolete.^[81]
This writer humbly disagrees with this position, as there is the necessity for
a third party adjudicator (as Smart Contracts are liable to disputes due to a
number of issues such as human error in coding).^[82]

African Feminism And Women’s Rights In Nigeria | Adeniyi Aderinboye

by Legalnaija | Sep 2, 2020 | Uncategorized

1.0.          
INTRODUCTION

Women have
been at a disadvantage since the beginning of the history of human race because
of several prejudices and patriarchal order. Suffering of women created the
concept of feminism as a gender based political and social movement[i].
This movement advocates for Social, Political and economic equality for but
gender in any given Society.

The African
women are very unique by their culture and location on the continent. Their
experience and understanding about life and equality will necessarily be
different from American women, or say European Women.  So when an African woman  or expresses a strong opinion or share her
perspective within the feminism curve, such opinion might be extreme or
moderate depending on the story behind such expression. African Feminism is a
form of feminism that is developed by African women and
specifically addresses the conditions and needs of continental African women.

The
stories, forming the ideologies of African Feminism are not entirely the same even
within Africa, as many women faces different social realities depending on the sub-region
on the continent[ii].

This paper
examines the uniqueness of African Feminism, through the lens of an African and
the challenges and prospects of this School of thought vis-à-vis Women’s right especially
in Nigeria. It will
also reflect on the key and emerging issues affecting gender justice and the
rights of contemporary Nigerian Women, and the possible legal panacea to these
continuing challenges.

2.0.          
WHAT IS FEMINISM

2.1.          
 The word “Feminist” is derived from the Latin
word ‘femina’ which means woman. This Latin word was later adapted to the
struggle and agitation of women all over the world for an egalitarian society. Feminism is
a belief in the political, economic and cultural equality of women and the
movement represents the long demand for the upliftment of the weaker or
suppressed section of women or girls in the society.

2.2.          
The Black’s
Law Dictionary[iii],
did not specifically define feminism, but it defines Feminist Jurisprudence as
a branch of jurisprudence that examines the relationship between women and law,
including the history of legal and social biases against women, the elimination
of those biases in modern law, and the enhancement of women’s legal rights and
recognition in society.

2.3.          
Different
Authors and commentators have described feminism in their own perspective.  A lot of women define it as the right of
women to aspire politically while some limits it to women’s right over their
body. Again some may argue that it is the right of women to independently own
and acquire properties.

2.4.          
 However, Feminism is a movement for the rights
of women against gender discrimination. It means that women should not have
less political, economic, and civil rights merely because they are women. The
essence of feminism is well reflected in the famous quotation of the publicist
Mary Shire when she said: “Feminism is a radical view that a woman is a
person[iv].”
It is therefore safe to say that feminism stands for equal opportunity for both
sexes without favouring one over the other.

2.5.          
 

3.0.          
FEMINISM IN AFRICA

3.1.          
Some have argued
that Feminism is a western concept. That it is just another example of how
uninformed society has become and how much we turn a blind eye to the struggles
of women all around the world, in Europe, Africa and all around the world.
Ascribing the origination of this movement to the West will amount to
disrespecting the effort and memories of the fearless women who fought
courageously for the emancipation of the women folks in Africa.

3.2.          
Feminist
activism has always being in Africa before a name was placed on it. While the
name Feminism was not attached to the movement at the early stage, we have had
brave African women standing against Gender discrimination and social injustice
as far back as 19^th Century.

3.3.          
African
Feminism is different from its Western Counterpart in a lot of respect; this is
so because many of the challenges faced by an average African Women are largely
non-existent in the Western World. These conditions include poverty, franchise,
illiteracy, political inclusion, war, marriage et.c. Therefore, underpinning
African Feminism, are cultural and social issues that pertains to and affect largely
only African women while the Western Women may only share a part of it.

3.4.          
Several
Contributors have classified development of African Feminism into two; the
Pre-Colonial Feminism and the Colonial Feminism[v].
In Nigeria Pre-colonial era, Nigerian very few Nigerian women actively
participated in public life and had independent access to resources. However, social
and political exclusion is worse with women from Hausa-Fulani in the Northern
part of Nigeria. Their commercial activities and engagements were limited by
Islam.  Only Women with a high position
by birth had more rights regarding their decisions and their funds. The example
is Queen Amina of Zazzau. In 1576, she became the famous ruler of Zazzau in
Northern Nigeria. The Igala Kingdom, located in Northern Nigeria, was also
founded by a woman Ebele Ejaunu[vi].

3.5.          
For
decades, African activists have rejected the notion that one can subsume all
feminist agendas under a Western one. As far back as the 1976 international
conference on Women and Development at Wellesley College, Egyptian novelist
Nawal El-Saadawi and Moroccan sociologist Fatema Mernissi challenged efforts by
Western feminists to define global feminism. In the drafting of the 1979 Convention
on the Elimination of Discrimination Against Women (CEDAW), the All African
Women’s Conference was one of six organisations and the only regional body
involved[vii]

3.6.          
In the
early 20^th century,  an
emerging set of  African Women
feminist  dominated the scene , with
women like Adelaide
Casely-Hayford, the
Sierra-Leonean women’s rights activist referred to as the “African Victorian Feminist” who contributed widely to both Pan-African
and feminist goals, Charlotte Maxeke who in 1918 founded the Bantu Women’s
League in
South Africa and Huda Sharaawi who in 1923 established the Egyptian
Feminist Union to mention a few.

3.7.          
In Nigeria, on the fore front of Feminist movement, we had Mary Ekpo and
Funmilayo Ransom- Kuti . Also recently, Chimamanda Ngozi Adichi among others. Mary
Ekpo for instance, was a Women’s Rights activist and a Pioneering female
politician in Nigeria’s first republic that played key role in the Country’s
Male-dominated Nationalism movement. Funmilayo Ransom-Kuti on the other hand established
in 1932, the Abeokuta Ladies Club (later renamed Abeokuta’s Women Union) which
advocated political and social inequalities faced by Nigerian women at the
time. The Union was famous for fighting unfair price controls and burdensome
taxes imposed on Nigerian women at the time by the Colonial Masters. She is
also regarded as the first woman to ride a car in Nigeria

3.8.          
 Chimamanda Ngozi’ Adichie is Novelist and one
of the most prominent African Feminist of the 21^st century.
Adichie’s consciousness and feminist movement was built up after she relocated
to the US on a Communication scholarship.  In 2013, her Popular lecture; “We
Should All Be Feminists[viii]” discusses
the damaging paradigms of femininity and masculinity. She has since then expressed
her opinion on issues inequality and the marginalization of women at various
forum

3.9.          
Although
the Africa Feminist movement largely focuses on the Africa continent, many of
its contributors also lived in the Diaspora[ix]
.
Therefore, 
one’s inquiring minds should not be limited by a geographical location
as the name would imply. The debates, agitations and practices are however
largely pursued on the African continent.

4.0.          
WOMEN’S RIGHTS IN NIGERIA

4.1.          
In Nigeria,
the idea of women’s right to equal treatment as their male counterpart is still
not generally acceptable. The Country remains a patriarchy society that
entrenches women’s subjugation through cultural, religious and Cultural
validation. Up until the 1950s’ for the South and 80’s for the North, the
Nigerian women had no right to vote or be voted for in  an election[x]and
it has been argued that even though this right is now made available to them,
the discrimination to being elected into a political office still never goes
away.

4.1.1.     As far back as 1929, the Nigerian
Women in the Eastern part of the Country led the Aba Women’s riot to protest
the unfair tax regime levied on women. The protest saw participation of over
10,000 women[xi].
It is still regarded as the pioneer protest for enforcement of Women’s right in
Nigeria. These women were reputed to have displayed strength, courage in their
opposition to repressive colonial policies that violated women’s rights at the
time

4.1.2.     The inequality and the unfair
treatment melted out on women in Africa and in Nigeria are quite enormous and
it ranges from undue disadvantage at birth to discrimination at workplace,
social gatherings, Public institution and the list goes on.  It is common place to see job vacancies
specifically exclude women and Political parties having only all men candidates
for elections regardless of whether there are more competent women who could
take the positions.  

4.1.3.     The presence of forced marriages and
non-consensual sexual intimacy of women is still very prevalent. In some parts
of Nigeria and largely the Northern part for instance, Women are largely still
objectified sought of and are betrothed to the men to be taken as wives even when
as Young as the age of 10[xii].
This inevitably denies female children of school age their right to the
education for their personal development, preparation for adulthood and
effective contribution to the future well-being of their family and society[xiii].

4.1.4.     Although, men also suffer from abuses,
it is common place for women to experience domestic violence in their
relationships from their male counterpart in Nigeria. The United Nations
Declaration on the Elimination of Violence against Women (1993) defines
violence against women as “any act of gender-based violence that results
in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or in private life[xiv].

4.1.5.     Sadly, domestic violence against women
is hugely a social context in Nigeria, and is based largely on the patriarchal
nature of our society where violence against a wife is seen as a tool that a
husband uses to chastise her so that she improves her ways. It is therefore
common, for a woman to lose her basic rights upon marriage, a challenge that is
strange to the Western Feminists. This is because the man is given some sense
of ownership then woman who mustn’t question his authority[xv].

4.1.6.     The percentage of women who suffers
domestic violence in their matrimonial homes has continued to soar with
increase in reported cases of husbands killing and maiming their wives in the
media. According to a report[xvi], every fourth Nigerian
woman suffers domestic violence in her lifetime and   25 per
cent of women in Nigeria have to go through ordeal of domestic violence. The
worst forms of them are battering, trafficking, rape and homicide.

4.1.7.     Inheritance to family property is another
challenge peculiar to women in Nigeria, as it is still seen to a large extent
as an exclusive preserve of the male children. Nigerian customary law of succession
and inheritance is patrilineal, which does not allow women to inherit real
property. The fact that a wife is not a blood descendant of her husband’s
family deprives her of succession rights in that family. As regards her
father’s place, a woman by culture is never allowed to come from her husband’s
house to inherit her father’s property. In both cases the female loses, as she
cannot inherit on either side[xvii].
This does not also exclude widows who jointly owned properties with their
husbands while alive.

4.1.8.     Although Section 42 of the
Constitution[xviii]
provides for right to freedom from discrimination in Nigeria, Job discrimination
against women is still also prevalent. Many employment opportunities are
unwelcoming of the female gender. It is usual practice to see vacancies with
the proviso that “a male candidate is preferable”. Some industries are open
enough about this discriminatory policy while many hide it for the fear of
being criticized, but even at that, the women never gets the job no matter how
highly qualified.

4.1.9.     There are several discriminatory
provisions against female Police Officers in the Nigerian Police Force
Regulations as it is, worthy of mention is Police regulations under the Police Act[xix].
For instance, section 124 of the regulation provides:

“A woman police officer who is
desirous of marrying must first apply in writing to the Commissioner of Police
of the state police command in which she is serving, requesting permission to
marry and giving the name, address, and occupation of the person she intends to
marry. Permission will be granted for the marriage if the intended husband is
of good character and the woman police officer has served in the force for a
period of not less than three years”

4.1.10. It is shameful that an institution
like the Nigerian Police Force can have such discriminatory regulation
and policies in place, part of which its female officers will have to obtain
permission to enjoy matrimony only after three years of service. More appalling
it is that the Commissioner of Police may still choose to refuse such
application.

5.0.          
IMPROVEMENTS ON WOMEN’S RIGHT S AND ADVOCACY.

5.1.          
There has
been a lot of improvement in the social, economic and political atmosphere for
women in Nigeria in the last decade. Although it is not yet time to celebrate,
a lot of progress has been made in terms of advocacy and policies’ improvement
towards giving equal opportunity to both genders in Africa and Nigeria.

5.2.          
Remarkably,
the Child Right Act was passed into law in 2003 in Nigeria. The law
domesticated the International Convention on Rights of child and has very many commendable
provisions that guarantees and protects the rights of the children, especially
the female gender in Nigeria. Regrettably, so far, at least, 11 states in the
North are yet to pass it into law in their respective states[xx].

5.3.          
Under the Child
Right Act, a Person under the age of 18 years is incapable of contracting a
valid marriage and where such marriage is contracted, it is null and void[xxi].
This provision has therefore nipped in the bud, the challenges of early marriage
for women and a plus for the Feminist movement in Nigeria. However, since most
states in the Northern part of the Country where Sharia law is predominant has
refused to domesticate the law, the challenge of child marriage still persists.

5.4.          
Also,
worthy of mention is that the Child Right Act[xxii]
provides that every child, both male and female has a right to free,
compulsory, universal primary education and all parents and guardian must
ensure their children of both gender attends and completes both primary and
secondary education. This provision helps to put an end to the discriminatory
policies in many homes where the female children are made to stay at home while
their male counter-part are sent to school instead.

5.5.          
Also, for a
longtime in Nigeria, there has been an age long tradition among the Igbo
culture, to the effect that women has no right to inheritance to their parents’
properties on the account of their sex and gender. However, by a judgment of
the Supreme Court of Nigeria in 2014, in the case of UKEJI V.UKEJI (2014) LPELR-22724(SC)
, the court invalidated the Igbo customary law that discriminates against
female children’s right of inheritance to their late fathers’ property.
According to the judgment of the apex court, the Igbo customary law, aside
being contrary to natural justice, equity and good conscience, also violates
sections 42 (1) and (2) of the 1999 Constitution of the Federal Republic of
Nigeria (as amended). By this Landmark decision, the age-long discriminatory
succession rights against the women under the Igbo customary law declared
anachronistic  has been expunged and laid
to rest once and for all.

5.6.          
It is also
commendable to mention the pass into law of the Violence against Persons
(Prohibition) Act 2015[xxiii]
 which extends its coverage to acts
normally regarded as cultural and created offences such as domestic violence
against women, harmful traditional practices, psychological violence, sexual
violence and socio-economic violence. The Act expanded the scope of rape,
prohibits female genital mutilation[xxiv],
harmful widowhood practices, partner battery, stalking, domestic violence,
among others. It is also now an offence to forceful ejection a woman from home.

5.7.          
In 2019, a
bill was presented to the Senate to end the existing discriminatory policies against
female officers in the Nigerian Police Force[xxv].
The bill sought to expunge all the discriminatory regulations in the Police Act
against women. This covers several gender issues which encompass various
spheres of policy and practice, ranging from language, recruitment, training
and posting; to marriage, pregnancy and childbearing. This Bill is still going
through the parliamentary procedures and appears to be receiving a lot of
support from members of the national assembly. When eventually passed into law,
it will put an end to all the bias against women in the Nigeria Police Force.

6.0.          
CONCLUSION

6.1.          
In the
words of Chimamanda Ngozi Adichie, “We should all be Feminist” and the
statement is quite agreeable. Both male and female should be given an equal
opportunity to fly. We have seen what women are very capable of achieving when
given the chance to be expressive without any prejudice. All across the world,
women have distinguished themselves in various sector of the economy. Lately we
saw what Jacinda Ardern[xxvi]
has done as the Prime Minister of New Zealand and how honorably she handled and
still handling the outbreak of the Covid-19 pandemic in her country. This is
one out of the many brave women worthy of mention all around the world. Women
in Africa have also set new standards for women’s political leadership
globally. For instance, Rwandan women today hold 62% of the
country’s legislative seats, the highest in the world. 

6.2.          
Conclusively,
in recent times, there has been a lot of social media advocacy for equal
opportunities for women and Men in the society. The new generation of African
women and by extension Nigerian women appears to be very conscious of their
right and it is refreshing to see. On Twitter for example, it is now common
place to see various trending feminist hash tags like; “Feminarchy, Feminazy,
The Feminist Coven, Masculinist Feminista, Angry Feminist” and the likes. The
journey for women’s liberation has been tough and a rough one, however, it
gives respite to see improvement over the years in way of support for women and
their social inclusion in Policies.

Understanding the ‘Transfer Window’ for Portability of Retirement Savings Accounts in Nigeria | Michael Dugeri

by Legalnaija | Aug 27, 2020 | Uncategorized

Introduction

Prior to the commencement of the Contributory Pension Scheme in 2004,
Nigeria operated the Defined Benefit scheme which was challenged on many levels
with issues such as terrible service delivery by administrators of the scheme in
the form of delayed or non-payment of pension entitlements to retirees. As a
result, the Contributory Pension Scheme (CPS) was introduced, to among other
things, decentralise pension administration and establish an institutional
framework for the safety, management and custody of pension assets in favour of
all categories of workers in Nigeria. Pension Fund Administrators (PFAs)
licensed under the Pension Reform Act (PRA) have the responsibility to provide
customer service support to employees, invest pension assets under their
management, offer returns on the investments, and ensure prompt payment of retirement
benefits to retirees, in accordance with the provisions of the Act.

The CPS introduced the concept of portability of pension assets to
pension administration in Nigeria by granting to beneficiaries the statutory
rights to open retirement savings accounts with PFAs of their choice and to
carry along with them the account and the funds in the account from one
employer to another and/or from one PFA to another. Portability is however not
being fully exercised by employees, who are currently not able to carry along
with them, the funds in their retirement saving accounts from one PFA to any other
of their choice. This is due to operational challenges that the pension
industry has struggled with since portability was introduced under the 2004 PRA.
This means that currently, RSA holders, whose PFAs are underperforming in terms
of return on investments, are stuck with such PFAs as they cannot move their
contributions to PFAs with better history of high returns on investment or to
PFAs with better history of customer service. Against the backdrop of PenCom’s latest
timeline of December 2020 for the opening of the Transfer Window this article
aims at providing clarity on the key aspects of this important aspect of the
CPS.  

Legal Basis for Portability of Retirement Savings Accounts in Nigeria

What is commonly called ‘The Transfer Window’ means the coming into
effect of section 13 of the PRA. The PRA requires every employee to maintain a Retirement
Savings Account (RSA) in his name with any PFA of his choice. Section 13 of the
Act stipulates that, “subject to
guidelines issued by the Commission, a holder of a Retirement Savings Account
maintained under this Act may, not more than once in a year, transfer his
account from one Pension Fund Administrator to another”. The employee need
not provide any reason for such transfer. This provision is, however, yet to
become operational due to challenges associated with the requisite IT application
and infrastructure, on the one hand, and management of the data of contributors
and pensioners, on the other.

The RSA holder’s choice to freely open his RSA and move the funds in the
RSA from one employer and or PFA to another was first introduced under section
11 of the 2004 PRA. The provision was retained under the 2014 Act and made subject
to guidelines issued by the National Pension Commission (PenCom). PenCom has
since issued Regulations for the Transfer of RSAs, first in 2012 and again in
2015, preparatory to the coming into effect of Section 13, even though it is
yet to open ‘The Transfer Window’, which will authorise PFAs to allow RSA
holders to transfer their RSAs from one PFA to another. It is unclear at this
point if PenCom will revise the 2015 Regulations in view of further changes
that it has introduced since then, such as the introduction of the Enhanced
Contributor Registration System (ECRS) to replace the former Contributor
Registration System (CRS).  

There are however, a few key points worth noting about the 2015 PenCom Regulations
for the Transfer of RSAs.  The
Regulations have four broad objectives, namely:

a.      seamless transfer of RSAs from one PFA to another;

b.     facilitating full and equitable pension assets portability within the
pension industry;

c.      enhancing ethical competition amongst the PFAs, and

d.     improving service delivery to RSA holders.

The Regulations, which make the benefit of the transfer available to
both employees and retirees, binds PFAs under the pain of sanctions. For
instance, a sanction of N200,000.00 per RSA and additional N100,000.00 daily
where the offence continues are to be imposed on any PFA/PFC that violates the
transfer processes as specified in the PenCom’s sanctions regime under section 5.0
of the Regulations.  

Challenges of Implementation
of a Data Governance Framework for the Pension Industry

The opening of the transfer window will facilitate full and equitable
pension assets portability within the pension industry, enhance ethical
competition amongst the PFAs and improve service delivery to RSA holders. This
is, however, not without challenges.

One of the major challenges to the opening of the Transfer Window is the
quality of the data that operators have over time collected about contributors
and pensioners. It is pertinent to note that at inception in 2004 contributors
were added to the CPS by PFAs without their bio-data and biometrics captured as
part of requirements for opening or operating an RSA. Registration of
contributors was concluded under a system known as the Contributor Registration
System (CRS), which was ill-equipped to ensure the integrity of the contributors’
data. This led to a situation of the pension industry’s data on contributors
and pensioners being of poor quality in terms of accuracy, completeness,
consistency, reliability and currency. There has therefore been the real concern
that until the matter of integrity and quality of extant contributors’ data is firmly
handled cases of identity theft and large-scale frauds may result from the opening
of the Transfer Window.

In order to address the issues on the quality of data on contributors
and pensioners, in 2019 PenCom developed and deployed the Enhanced Contributor
Registration System (ECRS) to facilitate an industry-wide data recapture exercise
for the over 9,039,748 RSA holders. The ECRS
consists of six major functions, namely, contributor registration to generate
unique pin, recapture for existing contributors, bio-data update, update of
signature (and picture where applicable), temporary PIN for employer-initiated
registration and RSAs verification service.

Furthermore, the ECRS, which replaces the former CRS, is integrated with
the National Identity Management Commission for authentication of the
uniqueness of individuals seeking to register under the CPS. This, it is hoped,
will greatly enhance the integrity of contributors’ data and also facilitate
the seamless operation of section 13 of the PRA. Also, integrating RSAs with
NIN and BVNs will help the PFAs to clean up their databases to combat identity
theft as well as prevent fraud in the pension industry.

Following the ECRS PenCom has announced the development of RSA Transfer
System (RTS), an e-platform to enable seamless RSA transfers. The RTS platform is
said to enable PFAs to electronically submit to receiving PFAs RSA transfer
requests initiated by RSA holders to receiving PFAs. As rightly noted by
PenCom, the full deployment of the RTS will, however, entail extensive training
of the PFA’s relevant personnel and simulation of the associated processes,
industry-wide. It should also include the plan to keep the general public
sufficiently informed about it.

At the back of the data management challenges of the industry, there is
also the issue of requisite IT infrastructure for the RSA transfer process. The
2015 PenCom Regulations require every PFA/PFC to deploy IT infrastructure,
which must have adequate storage and retrieval capability for a period of Ten
(10) years. In addition, every PFA/PFC is to achieve and maintain an IT infrastructural
level to be specified by PenCom, which shall include the following:

a.      Automated fingerprint capturing equipment for capturing fingerprints
(for PFAs), and

b.     Automated Document Management System.

It is needless to say that these infrastructural commitments will come at
a huge cost to PFAs that are already struggling with increasing operational
costs and dwindling returns on their investments of AuM. There is also the cost
to contributors and pensioners who must now make themselves physically available
for the data recapture exercise in order to continue the seamless operation of
their RSAs.

In anticipation of the increase in competition among PFAs from the
opening of the ‘Transfer Window’ section 2.2.38 of the Regulations provide that
all personnel of PFA/PFCs shall abide by the PenCom Code of Ethics and Business
Practices and respect the confidentiality of all information relating to the
transfer process. PFAs with a history of poor customer service will now also
have to worry about losing customers to other PFAs that the customers may
prefer.

RSA Transfer Process under the 2015 PenCom Regulations for the Transfer
of RSAs

It is unclear at this point if PenCom will revise the 2015 Regulations
in view of further changes that it has introduced since the regulations were
issued in 2015, such as the introduction last year of the Enhanced Contributor
Registration System (ECRS) to replace the former Contributor Registration
System (CRS) and the development of the RSA Transfer System (RTS).

In order to ensure the effective implementation of RSA transfers, the
2015 Regulations established the Pension Administration System (PAS) as an
electronically driven infrastructure for handling inter-PFA RSA transfers in
order to remove potential bottlenecks associated with RSA funds transfers and
settlements. PAS, to be domiciled at PenCom, will warehouse all data on pension
matters relating to registered contributors/members. PAS is to have an
interface with all PFAs and Pension Fund Custodians (PFCs) to facilitate
transfers between the PFAs.

Section 2.2.14 of the 2015 Regulations further provided that the
transfer process could only be initiated by an RSA holder who has been duly
registered on PAS. To be registered on PAS an RSA holder must have his/her
bio-data and biometrics captured by his/her PFA and transmitted to PAS. PAS was
to operate the RSA Transfer Clearing Module (RTCM) to facilitate electronic RSA
balances transfers, automated direct debits and credits. The 2015 Regulations
state that the “RTCM shall serve as a
platform for the processing of Transfer of RSA from one PFA to another,
settlement of Net Transfer balances between PFAs, reconciliation of transfer
balances and monitoring of the transfer processes”. It further provided
that the RTCM shall maintain an IT platform that facilitates seamless
coordination of transfer processes through a link that shall be accessed by
only authorised officials of the PFAs/PFCs.

The RSA holder intending to transfer his/her RSA to another PFA shall
obtain a Transfer Form, complete and submit it to the Receiving PFA with a copy
of certificate of registration or RSA statement of account issued by the
Transferring PFA (TPFA), and valid means of identification. If the beneficiary
is a retiree, he/she is also required to provide a copy of Programmed
Withdrawal Agreement (PWA) with the TPFA. This is because section 2.2.4 of the
2015 Regulations provided that only retirees on PWA are eligible for transfers.

Upon the receipt of a duly completed transfer form and authentication of
submitted documents, the receiving PFA shall electronically forward the RSA
transfer form and captured fingerprint images of the RSA holder to RTCM to
validate the form for completeness. If successful, RTCM shall forward the PIN, surname,
fingerprint images and Transferring PFA Code to the Registration Module of PAS
for validation.

The RTCM shall, within two working days from the date of receipt of the
transfer request determine the Effective Transfer Date (ETD) and electronically
communicate both the ETD and provisional approval to both Receiving and
Transferring PFAs and request the TPFA to forward the transaction history. On
the ETD, the Transferring PFA shall move the balance in the RSA to the TSA and
determine period of outstanding contributions if any. Upon completion of the
transfer process, the Receiving PFA shall notify the RSA holder of the transfer
value received within two (2) working days.

It is pertinent to note that all RSA balances to be transferred by the
Transferring PFA shall be in Naira value and shall be calculated based on the
unit price of the Transferring PFA’s RSA Fund as at the ETD. It is to be noted
further that RSA transfers under the Regulations shall attract no transfer fee.

Conclusion and Recommendations

The opening of the Transfer Window, long overdue, will facilitate full
and equitable pension assets portability within the pension industry, enhance
ethical competition amongst the PFAs and improve service delivery to RSA
holders. There should however be extensive training of the PFA’s relevant
personnel and simulation of the processes, industry-wide. RSA holders are
advised to immediately approach their PFAs to provide
their Bank Verification Numbers (BVNs), NIN as well as other required biodata

The sanctions regime under section 5.0 of the Regulations is not a
sufficient deterrence as the perceived gains from holding on to pension assets
to be transferred may outweigh the specified penalties for non-compliance. It
is suggested that penalties for non-compliance should be tied to a percentage
of the pension assets that are wrongfully withheld by a defaulting PFA. This
way, minor infractions will also not be over-penalised.

Also, the Regulations are silent on the procedure for establishing
breach by PFAs of the Regulations. This is important in view of the sanctions
regime, which is prone to abuse in the absence of a fair and transparent
dispute resolution mechanism. 

Finally, it cannot be over-emphasized that this exercise should be given
the maximum publicity so that the general public, especially stakeholders like
contributors and pensioners, are sufficiently informed on all the different
aspects of the exercise and its importance to the CPS and their retirement
savings.  

Michael
Dugeri is a Lagos-based Legal Practitioner with specialties in Energy Law,
Employment and Capital Markets 

COVID-19: African Free Trade Zone And The Ecowas Trade And Commerce | O. M. Atoyebi, SAN

by Legalnaija | Aug 25, 2020 | Uncategorized

The world has never
been more ignited in recent times for survival than at the end of2019 and the
launch of 2020 through to the mid-year and still counting. For many, the
outbreak of the COVID-19 pandemic projected a rather unannounced arrival of end-time.
While the world is still adjusting to the disease and fighting to curbit,
unfortunately,COVID-19 has triumphed in disrupting the entire chain of human
affairs across the globe with its rippling effect.

The African Free Trade Zone and the Economic
Community of West African States (ECOWAS) Trade and Commerce, being one of
those economic engagements violently hit and halted by this crisis,along with
the repercussions birthed by various emergency measures adopted by member
countries and regions in curbing its overarching population sapping effects,
would have otherwise been the take-off of a tremendous economic transposition
for the African continent and indeed, the rest of the world.

Theeffect of the
pandemic and withthe gradual easing of imposed lockdownsin
member countries (which until recently resulted in an indirect placing of
unintended embargo on these kinetic commercial interactions, all in a bid to
prevent the multiplicity of the contagion) spells for the growth of the African
market,is the focal point of this work.

THE AFRICAN
CONTINENTAL FREE TRADE AREA

The African
Continental Free Trade Area (hereinafter referred to as “AfCFTA”) is a trade deal designed to drop barriers in intra-African
trade[1].
According to Brookings Institution, intra-African exports made up only 19% of
total trade in 2018, compared to 59% and 69% for intra-Asia and intra-Europe
trade respectively[2],
this sharp variance defines the rationale for the need to put such a long
overdue deal in place. Simply put, theAfCFTA aims at rewriting this
unproductive narrative by means of increasing in-house African
trade through the removal of barriers.

The 55-nation
continental Free-trade Zone which has been referred to as the world’s largest Free-trade
Zone, is being expected to create $3.4Trillion combined
gross domestic product of economic bloc with 1.3 Billion people across Africa
and constitute the largest new trading bloc in the world, since the inception of the
WorldTrade Organizationin 1994[3].
Interestingly, the International Monetary Fund (IMF) remarked that the AfCFTA
is a “potential economic game changer and
eliminating tariffs (in Africa) could boost trade in Africa by 15-25% in the
medium term”.

COVID-19
AND THE KICK-OFF OF THE LONG-AWAITED AFRICAN FREE TRADE AGREEMENT

The landmark
African Free Trade Agreement is the instrument intended to initiate the laid
out liberal trans-border commercial activities across the coastal regions of
the continent once implemented on the 1^st day of July, 2020, having
been ratified by all member countries, with Nigeria following suit in July,
2019 (after series of delays and protracted consultations with relevant
stakeholders). This decision of the largest economy in Africa to sign the agreement
was a massive amplifier to the deal. The AfCFTA entered into force on 30^th
May, 2019^[4].

A Free Trade Agreement
simply means where a country has a lower cost of production in her home Nation,
such Nation will gain market share by offering products cheaper than the competition[5].
Also, by the Agreement, Nations can no longer artificially increase prices of
imported goods by imposing import duties[6].
Free Trade Agreements are designed to cut trade tariffs among member countries,
help make a country’s exports cheaper and get easier access to other markets.
It removes border taxes or trade barriers, get rid of quotas in such a way that
there will be no limit to the amount of trades indigenous businessmen can
conduct. These tariffs are usually in the form of taxes.[7]

Beyond dispute is
the fact that though the Agreement is already legally in force, a number of details
are still unsolved as part of the first phase of the process which would have
brought the July zero hour for the take-off of trade in goods and services
under the new tariff into fruition. This was as a result of the direct fallout
of the African Union’s inability to hold its earlier scheduled Conference in
Johannesburg, South Africa in May, 2020, to place the lid over the Agreement,
owing to the cross-border travel restrictions and in-country imposition of
lockdowns to arrest the rapid spread of the coronavirus pandemic[8].
As it stands, only a rescheduling of both the meeting and take-off dates by the
Assembly as soon as practicable, would see to the successful unveiling of
trading inter-relations in the zone as initially earmarked, especially with the
gradual easing of the somewhat stiff control measures placed in concerned
territories.

ECOWAS TRADE AND COMMERCE

Trade in the Community
is evolutionary. There was a time when old trading links were still being
relied on to sustain business exchanges in the area. What
is being awakened now however is trade with development dimension. The Economic
Community of West African States (ECOWAS), since its inception has had a trade
policy designed to increase intra-regional commerce, raise trade volume and
generally galvanize the economic activities within the region in such a way as
to positively impact on the economic wellbeing of ECOWAS citizens[9].

The ECOWAS trade
policy is also meant to foster the smooth integration of the region into the
world economy with due regard for the political choices and development
priorities of states in the desire to engender sustainable development and
reduction of poverty[10].

The total trade of
the region has averaged $208.1 Billion. Exports are projected at approximately
$137.3 Billion while imports total about $80.4 Billion. The main active Countries
in trade are Nigeria; which alone accounts for approximately 76 percent of
total trade, followed by Ghana; (9.2 percent) and Cote d’Ivoire; (8.64
percent). The trade surplus of the region, estimated at about $47.3 Billion is
attributable to Nigeria ($58.4 Billion) and Cote d’Ivoire ($3.4 Billion) when
all other Countries have a deficit in the trade balance[11].

Today, the total
ECOWAS trade has increased by an average of 18 percent per year between 2005
and 2020. It is dominated by Mining Commodities (oil resources, iron, bauxite,
manganese, gold, etc..) and Agriculture (coffee, cocoa, cotton, rubber, fruits
and vegetables and other products rather marketed within the region such as dry
cereals, roots and tubers, livestock products) etc. Nigeria, Cote d’Ivoire,
Ghana and Senegal concentrate 87 percent of this trade, with 79 percent of
regional imports ($55,520Million per year) and 94 percent of exports and
re-exports ($77,792 Million per year)[12].

THE ECOWAS TRADE LIBERALIZATION PROGRAMME: CATALYST FOR
ECONOMIC TRANSFORMATION IN THE COMMUNITY

A main feature of
the Community’stradingand commercial policy is ECOWAS Trade Liberalization
Programme(ETLP). The objective of the programme is to progressively establish a
Customs Union among the Member States of the Community over a period of fifteen
years, starting from 1^st January, 1990, the date of entry into force
of the Scheme. The Customs Union will among others involve the total
elimination of customs duties and taxes of equivalent effect.

The ECOWAS Trade
Liberalization Programme, involves three groups of products; unprocessed goods,
traditional handicraft products and industrial products. The programme is meant
to give several advantages to member States and their citizens as they trade
among themselves. An example of this is, the advantages accruing to unprocessed
goods imported from a member state as contained in Decision C/DEC.8/11/79 of the Council of Ministersis, total
exemption from import duties and taxes, free movement without any quantitative
restriction as well as non-payment of compensation for loss of revenue as a
result of their importation, provided that unprocessed products among other
conditions, originate from member states of the Community and must appear on
the list of products annexed to the decisions liberalizing trade in these
products.

COVID-19 CLOG ON ECOWAS TRADE AND COMMERCE

The unpremeditated advent
of COVID-19 and the measures placed to curb its dispersion across ECOWAS member
states, with the commonest of such steps being the ban on cross-border
movement, resulted in a huge dip in the progress of the ETLP in particular, and
all forms of commercial interrelations in the region in general. This could
otherwise be channeled along a more productive and economically transforming
axis for the concerned States and in fact, even the rest of the Continent. 

Continuous Trade in
both goods and services would have played a key role in overcoming the pandemic
and limiting its health and economic impact, especially on the poor through
adopting coordinated measures on trade in response to the COVID–19
epidemic. Trading and Commerce would have contributed immensely by providing
countries access to essential medical goods (including material inputs for
their production) and services to help contain the pandemic and treat those
affected; ensuring access to food, maintaining and enhancing nutritional intake
of the poor which will boost immune systems and contribute to the ability to
resist the virus; providing farmers with necessary inputs (seeds, fertilizers,
pesticides, equipment, veterinary products) for the next harvest; and
supporting jobs and maintaining economic activity in the face of a global
recession, disruption to regional and global value chains, and reduced
employment and increased poverty.

Conversely, measures
to contain the pandemic in West-Africa and the whole of Africa is reducing
trade. African countries are highly dependent on global trade, and measures put
in place that limit trade are rapidly having negative impacts on most countries
hitherto operating in the ETLP. Thirty-two countries in Africa have put in
place flight restrictions[13].
Some have suspended all commercial passenger flights, others have blocked
international flights, while a few have limited the restrictions to countries
with high infection rates.

Experience from
previous crises, such as the 2008-2011 food price crisis of 2009, clearly shows
that imposing export restrictions on medical and food products will increase
the international prices of these products which will impact most negatively on
the poorest people. Export bans on food also lowers domestic prices which
reduces the incentive to grow food crops in the next season. If the pandemic
spreads in Africa the same way as in Europe and the USA, it will result in
critical hotspots that could overwhelm local health capacities and food
security, the two most vital survival necessities for everything alive.

URGENT NEED FOR IMPLEMENTATION OF THE AfCFTA

The last World
Economic Outlook from IMF forecasts a -3% contraction in world GDP in 2020 and
a -1.6% contraction for sub-Saharan Africa for the same period[14].
The fall in the world GDP will no doubt lead to a severe fall in the exports
demand for African products due to the fall in the global demand as COVID-19
persists. Given the specificities of African economies, the negative impact
would be more than proportional, hence more trade among African nations and
between Africa and the rest of the world is of essence. The AfCFTA will thus
have the advantage of boosting intra-African trade contributing to mitigate the
rapid decline in African GDP[15].

COVID-19 is both a
supply and demand shock. Given this magnitude, the crisis may lead to a
significant upending of global value chains, perhaps leading to a higher
reliance on regional value chains. Given the potential for the AfCFTA to serve
as a real economic engine at the continental level, policymakers must maintain
the momentum towards its implementation so as to empower the region to more
successfully navigate the hit its economies will take and have already taken.
Trade liberalization under the AfCFTA is among many policies that could help
pull countries out of recession after the pandemic is over.

CONCLUSION

Indubitably,
the very soul of every nation is the income that accrues to it. From the
provision of basic amenities (with food, shelter and even clothing being the
constant variables), to the more political cum economically motivated projects,
policies and programmes aimed at maintaining the stronghold of a nation among
its other dominating contemporaries. African countries have managed to devise
tactical progressive models designed to rescue the continent from sinking into
the abyss of hunger, war and poverty, by evolving a medium via which trade and
commercial activities will flourish among the inhabitants of the black-nation
with little or no need of reliance on external channels.

The bid to
introduce the AfCFTA and the push to advance the long existing ECOWAS Trade and
Commerce(for the benefit of member-countries and by extension, the whole of
Africa), have been the forces at the forefront of achieving this mandate.
Unfortunately, just when plans were set to go on motion, the
COVID-19 pandemic trotted its way from other parts of the Globe into the shores
of the Continent and is threatening to cancel the anticipated success of these
plans.

With the stiff
measures to fight the pandemic now being tenderly relaxed coupled with the
positive available windows it has helped to expose, the time is ripe for
African leaders to intensify their strength to see to the quickened implementation
and diversification of the masterplan for the economic development and
transformation of our dear continent.

Paper by OyetolaMuyiwaAtoyebi,
SAN.

Mr. OyetolaMuyiwaAtoyebi, 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/

Pre – Order Your Copy Of Social Media For Lawyers

by Legalnaija | Aug 24, 2020 | Uncategorized

Post-Judgment Interests In Nigeria |Nonso Anyasi

by Legalnaija | Aug 23, 2020 | Uncategorized