Chartaville https://chartaville.com Publish. Preserve. Peruse. Wed, 27 Jun 2018 17:45:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.9.8 https://i1.wp.com/chartaville.com/wp-content/uploads/2018/05/cropped-Chartaville-2.jpg?fit=32%2C32&ssl=1 Chartaville https://chartaville.com 32 32 140304025 Right to food as a fundamental human right in Nigerian constitutional jurisprudence https://chartaville.com/2018/06/27/right-to-food-as-a-fundamental-human-right-in-nigerian-constitutional-jurisprudence/ https://chartaville.com/2018/06/27/right-to-food-as-a-fundamental-human-right-in-nigerian-constitutional-jurisprudence/#respond Wed, 27 Jun 2018 17:45:01 +0000 https://chartaville.com/?p=509 Layeni Elizabeth Imoleayo, Bauchi State University This article dwells on the consideration of the right to food as a justiciable right – that is, as a right that can be interpreted by the courts and can be the subject of litigation, what the right to food entails as well as strategies to the actualization of […]

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Layeni Elizabeth Imoleayo, Bauchi State University


This article dwells on the consideration of the right to food as a justiciable right – that is, as a right that can be interpreted by the courts and can be the subject of litigation, what the right to food entails as well as strategies to the actualization of the right to food in Nigeria.

 

Introduction  

“Right” is a condition of living without which in any given historical stage of society, men cannot give the best of themselves as active members of the community because they are deprived the means to fulfil themselves as human beings.[1] Similarly, according to Maurice Cranston, a  right by definition is a universal moral right, something which all men everywhere, at all times ought to have, something of which no one may be deprived without a great affront to justice, something which is owing to human being simply for being human.[2]

The right to food is a human right protecting the right for people to feed themselves in dignity, implying that sufficient food is available, that people have the means to access it, and that it adequately meets the individual’s dietary needs. The right to food protects the right of all human beings to be free from hunger, food insecurity and malnutrition.[3]

The desirability to make the right to food enforceable under the Nigerian constitutional Jurisprudence is apposite to examining whether the right to food has met the minimum requirements as a human right under substantive international human right in Nigeria. Alston argued that one of the substantive criteria that a claim must satisfy in order to qualify as a human right in terms of international law is the eligibility for recognition on the ground that it is an interpretation of the UN charter obligations.[4] Similarly, it should also reflect customary rules or formulation from general principles of law – which should be consistent with an existing body of international human rights law among others.[5]

However, given the debate on the substantive criteria for what qualifies as a human right, it becomes difficult to state what should precisely be a qualification to attain a human right.[6]  The reasons are that the establishment of a criterion of enduring relevance is almost impossible in a field that is frequently undergoing evolutionary flux. Even if such criteria can be agreed upon, the process of transforming a claim into international human rights is far from being scientifically pure.[7]

This would imply that a list of substantive criteria that could be agreed by all is an unworkable approach. Given that the Universal Declaration of Human Rights is an important legal instrument embodying one conception of natural right (right to food) into international soft law, it is argued that the right to food meets the requirement from the natural law conceptual foundation. Furthermore, given the pervasiveness of hunger that confronts the average Nigerian citizen, it is further argued that the Nigerian government has a moral obligation to protect and promote the right to food for its citizens as any system where food is insufficiently matched by supply is no doubt one with looming food crisis.

 

Right to food under International Law

Food as a human right emerged along with the rest of contemporary international law in the aftermath of World War II. The right to food was initially codified in the UN Declaration of Human Rights in 1948.[8]  The treaty refers to the right to food as one aspect of the right to a standard of living adequate to ensure the health and wellbeing of each person.[9]   This right is intrinsically linked to an individual’s health and wellbeing. The right to food under international law implies the right to means of production or procurement of food of sufficient quantity and quality, free from adverse substances and culturally acceptable.[10]  While the importance of creating an enabling environment where everyone can enjoy the right to food by their own efforts should be stressed, it remains incumbent on the State to ensure that those who are unable to do so for themselves are adequately provided for, so that as a minimum, no one suffers from hunger.[11]  Every State is obliged to ensure for everyone under its jurisdiction access to the minimum essential food, which is sufficient, nutritionally adequate and safe, to ensure their freedom from hunger.[12]

The Special Rapporteur on the Right to Food in 2002 defined it as follows: ‘’the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear’’.[13]

Like any other human right, the right to food , adequate food, entails three levels of obligations on the State; the obligation to respect, to protect , and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide.[14]  The obligation to respect existing access to food requires the State not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food.[15]   The obligation to fulfil (facilitate) means that the state must proactively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood including food security.[16]

According to the Food and Agriculture organization of the United Nations, the right to food does not imply that governments have an obligation to hand out free food to everyone who wants it. This is a common misconception. The right to food is not a right to a minimum ration of calories, proteins and other specific nutrients, or a right to be fed. It is about being guaranteed the right to feed oneself, which requires not only that food is available – that the ratio of production to population is sufficient – but also that it is accessible – i.e., that each household either has the means to produce or buy its own food. However, if individuals are deprived of access to food for reasons beyond their control, for instance because of an armed conflict, natural disasters or because they are in detention, recognition of the right to life obliges States to provide them with sufficient food for their survival.[17]

While the economic, social and cultural rights (hereinafter referred to as ESC rights) have been part of the international human rights regime at least since the adoption of the Universal Declaration of Human Rights in 1948, considerably less efforts has been made to develop a conceptual framework to give them content and to construct protection mechanisms to enforce them than in the case of civil and political rights. One of the traditionally neglected issues regarding ESC rights has been their justiciability – that is, the possibility for alleged victims of violations of ESC rights to file a complaint before an impartial body, and request adequate remedies or redress if a violation is deemed to have occurred.

One particular issue is the fact that, while other ESC rights – such as the rights to health and to education – have had a broader constitutional recognition throughout the world, this has not been the case for the right to food, and thus there are fewer countries with an express constitutional provision of this right.

A second problematic factor is, that statutes regarding food security and other food issues usually state public policy goals and principles, but rarely enunciate an individual (or collective) right to food.

These factors may create some difficulties in the identification of a firm legal basis to take a case to court regarding the right to food, and there is no clear statutory basis either, directly arguing a case on the basis of the text of International Covenant on Economic, Social and Cultural rights and on soft law documents such as the General comment No. 12 and the FAO Voluntary Guidelines on the Right to Food before domestic courts with little or no knowledge about international law, can be a highly uncertain bet.

This is the case even in the monistic legal systems where international law is directly part of domestic law and can be directly invoked before courts. Difficulties increase in dualistic systems, where international law is not automatically incorporated into domestic law. Moreover, the right to food is a relatively ‘’young’’ right and lacks a consistent body of case law on which to draw in order to frame a new case and apply law to a new set of facts.

While the foregoing may indeed contribute obstacles for justiciability, they are not insurmountable – on the one hand, the experience of directly applying international human rights instruments and standards is a growing practice in domestic courts in different parts. And the absence of case law is just a state of affairs that can change gradually, when cases start being decided by courts and therefore accumulate.

Even in those cases where the right to food is not directly enshrined in a constitution or defined by a legislative statute, and even when international law cannot be directly invoked before domestic courts, or – as a matter of fact is not frequently invoked before domestic courts, there are a number of indirect ways highlighted by comparative legal experiences of protecting the right to food through litigation.

In fact, in legal systems where the ESC rights are generally not granted a complaint mechanism, or in domestic systems where ESC rights have no constitutional recognition, or where the doctrine of non-justiciability of ESC rights is still prevalent among judges, judicial protection of ESC rights has been mainly channelled through its interconnection with civil and political rights or with general human rights principles.

Right to food in Nigeria

Nigeria has ratified and domesticated the African Charter via the African Charter (Ratification and Enforcement) Act 1983. Notwithstanding that the right to food is not expressly enshrined in the African Charter, the African Commission posits that there is an implied right to food in the African Charter. The Commission in Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria (SERAC case),[18]  argued that the right to food is implicit in the African Charter flowing from the provisions on the right to life (Article 4), right to health  (Article 16), and the right to economic, social and cultural development (Article 22).[19]  The Commission also averred that the right to food is interlinked with the right to dignity of human beings and it is essential for the enjoyment and fulfilment of such others as the right to health, right to education, right to work and right to political participation.[20]

In Nigeria, there is the absence of an explicit right to food provision in the constitution. However, a semblance of right to food or food security is localised in section 16 (2)(d) of the constitution that states that the State shall direct its policy towards ensuring suitable and adequate shelter, suitable and adequate food are provided for all citizens.  However, this is contained in Chapter II of the constitution, which is neither justiciable, nor enforceable. Notwithstanding that it is not enforceable against the state, this provision can be made justiciable and enforceable via different mechanisms.

The right to food can be implied into the Nigerian constitution via Chapter IV of the constitution, which is enforceable. For example, the right to food and the right to life are interwoven and interdependent.[21]  As Oluduro has argued, ‘’without the right to food, all other rights will be meaningless’’.[22]   Furthermore, whether one speaks of human rights or basic human need, the right to food is the most basic of all. Unless that right is fulfilled, the protection of other human rights become a mockery for those who must spend all their energy merely to maintain life itself.[23] The right to life includes the protection of health and normal longevity of an ordinary human being, and these can be threatened by the lack of food security or access to adequate food.  If the right to life is interpreted strictly, it would cover only those cases where lack of access to food is life-threatening – freedom  from starvation. A broader interpretation of the right to life, as a life according to human dignity, may encompass a wider variety of aspects of the right to food, such as those relating to food adequacy.  Some courts have, of course framed violations of the right to food as violations of the right to life.

The Nigerian constitution should take a cue from the Indian judiciary (the socio-economic rights provision of Nigeria’s constitution is modelled on the Indian constitution) which has consistently creatively interpreted the constitutional provision regarding socio-economic rights to make them justiciable and enforceable. With specific regards to the provision on the ‘right to food, Article 47 of the Indian constitution enjoins the government to raise the level of nutrition and standard of living of its people.[24]  Decisions from Indian courts are of persuasive influence to their Nigerian counterparts. The situation should not be different with respect to the right to food debate.

Another mechanism wherein the right to food may be enforced in Nigeria is by holding the country to respect international obligations regarding the conventions it has ratified in respect of the right to food.[25]  A major reason for this is that contracting countries to treaties cannot rely on the basis of its domestic laws as reasons or justification for not performing its expected obligations under such treaties.[26]  Nigeria must be seen to respect and implement the various treaties it ratified. Furthermore, by virtue of section 19 (d) of the Nigeria’s constitution, respect for international law is one of the foreign policy objectives of Nigerian government enunciated in the constitution.

A somewhat third strategy consists in deriving duties regarding the right to food from a ‘’right to a vital minimum’’ or ‘’existential minimum’’, considered to stem from the constitutional formula of the social or welfare state, and sometimes from the notion of human dignity. The reasoning implied here is that the goal of the social or welfare state is achieving at least the material conditions necessary to honour its commitment to human dignity. Access to food is therefore considered to be one of those material conditions.

Another way to protect the right to food through courts is consumer rights. Although consumer rights do not form part of international human rights law, consumer protection laws and consumer protection agencies have regularly been part of domestic law throughout the world.  Consumer law has been one of the distinctive ways through which adequacy of food products has been dealt with before courts. For example, courts deal regularly with issues regarding non-compliance with food information requirements, and cases requiring withdrawal of food products from the market for failure to comply with health and sanitary standards are not rare.

Since it has been said that the right to food does not imply that government hands out food to everyone who wants it, but that it entails the guarantee to feed oneself, another mechanism for the realization of the right to food in Nigeria is by agriculture. The government should protect the rights of land users, in particular of minority and vulnerable groups, smallholder agriculture in the face of mega-development projects, and to stop soil and water degradation through massive shifts to agro ecological practices.

Food is the most basic of all needs and should be afforded every man. It is of great necessity at this point as a country, to uphold and respect the right to food. Its fulfilment impinges on the realisation of many other human rights. For the comfortable man who is able to meet his material needs, it is difficult to imagine that the right to food is an issue of much urgency. Nonetheless, for those who live on the border of starvation, or whose children suffer from chronic malnutrition and often die at a very early age, the right to food is a very real and urgent issue, and should be made justiciable in Nigeria.

 

 

 


[1] Universal Declaration of Human Rights, 1948

[2] Maurice Cranston, what are Human Rights? (London: Bodley Head, 1973)

[3] Jean Ziegler 2012: ‘’What is the Right to Food?’’

[4] Philip Alston, ‘Conjuring up new Human Rights: A proposal for quality control’, (1984) 78 American  Journal of International law 3, 607

[5] Ibid

[6] Ibid; Philip Alston et al, International Human Rights in context: Law, Politics, Morals, (3rd edn, Oxford: Oxford University Press, 2007) Chapter 2

[7] Ibid

[8] UN General Assembly Resolution 3217A, III, Article 25 was reaffirmed in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);  the treaty recognized as part of an adequate standard of living, which also includes housing and clothing, and separately as the fundamental right to be free from hunger.

[9] See UN Declaration of Human Right 1948. Art 25 para 2

[10] Ibid, art 11

[11] Ibid, art 3 – 11. Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’, (1995) 25 Georgia Journal of International and Comparative Law, 287, 317

[12] FAO, (The) State of Food Insecurity in the world :Addressing food insecurity in protracted crisis (Rome, FAO 2010)

[13]  Special Rapporteur on the Right to Food 2008: para 17; quoted in Special Rapporteur on the Right to Food 2012a.

[14] (n 12)

[15]  Ibid.

[16] ECOSOC, U.N. CHR, The Right to Food, 59th Sess, U.N. Doc. E/CN.4/2003/54, 2003.

[17] Food and Agriculture organization, 2012c.

[18] Communication 155/96, (2001)

[19] SERAC case, ibid para 64.

[20] SERAC case (n 19) para 65

[21] Olubayo Oluduro Oil Exploitation and Human Rights Violations in Nigeria’s oil Producing Communities    (Intersentia Publishing  2014)

[22] Ibid.

[23] Presidential Commission on World Hunger, 1980, cited in Philip Alston, ’International Law and the Right to Food’ in Wenche  Eide and Uwe  Kracht (eds.) Food as a Human Right (United Nations University, Tokyo 1984) 162 – 174

[24] Article 47 of the Indian constitution

[25]  Universal Declaration of Human Rights 1948, International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 and the African Charter on Human and People’s Rights amongst others.

[26] Generally see Kenneth Ajibo, ‘Facing the Truth: An Appraisal of the Potential C ontributions, Paradoxes and Challenges of Implementing the United Nations Conventions on Contracts  for the International Sale of Goods in Nigeria (CISG) in Nigeria (2013).

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DOWNLOAD: An analysis of the bill passed by senate to repeal and amend CAMA 1990 https://chartaville.com/2018/06/05/download-an-analysis-of-the-bill-passed-by-senate-to-repeal-and-amend-cama-1990/ https://chartaville.com/2018/06/05/download-an-analysis-of-the-bill-passed-by-senate-to-repeal-and-amend-cama-1990/#respond Tue, 05 Jun 2018 12:48:33 +0000 https://chartaville.com/?p=499 By: Iyinoluwa Ajayi Click here to download pdf file!  It is common knowledge that there is a strong link between a country’s ‘ease of doing business ranking’ and its economic prosperity. According to the 2018 World Bank Doing Business (WDBD) Ranking Index, Nigeria ranks 145 out of 190 economies. While this is an improvement as […]

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By: Iyinoluwa Ajayi


Click here to download pdf file! 

It is common knowledge that there is a strong link between a country’s ‘ease of doing business ranking’ and its economic prosperity. According to the 2018 World Bank Doing Business (WDBD) Ranking Index, Nigeria ranks 145 out of 190 economies. While this is an improvement as against the previous position of 169 in 2016 and 2017, it is still not the best the country can get.

This index is a resource which serves as reference for private sectors and others interested in investing in a country. One of the things measured by the Index is the ease or difficulty of doing business in a country. It may therefore be said that the content and operation of a country’s business legal framework is instrumental to its ranking on the Index. Companies and Allied Matters Act (CAMA) 1990 is critical to this ranking because it is about the most critical piece of legislation that affects the business climate in Nigeria. It sets out the legal basis by which companies are formed, operated and managed.

Where the provisions of CAMA are effective and at par with international standards, a business friendly economy is built, small and medium-scaled enterprises thrive and investors are encouraged to invest in the country. Conversely, where the framework is out-dated, growth is inhibited and investor confidence is undermined.

On the 15th May, 2018, the 8th Senate passed the repeal and re-enactment of the Companies and Allied Matters Act (CAMA) and it has largely been considered by many as one of the biggest business reform bills passed in Nigeria in the past 28 years.

This paper would point out some of the major changes the Bill puts forth in comparison with the 1990 Act as well as examine the impact of these changes on the Business Climate in Nigeria.

Click to button below to download file.

 


The author is a First Class Law Graduate of the Class of 2017, University of Ibadan, and former intern, Legal Department, Oando PLC.

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Irradiation: an exaggerated obstacle to accepting preserved foods https://chartaville.com/2018/04/01/irradiation-an-exaggerated-obstacle-to-accepting-preserved-foods/ https://chartaville.com/2018/04/01/irradiation-an-exaggerated-obstacle-to-accepting-preserved-foods/#respond Sun, 01 Apr 2018 11:52:13 +0000 https://chartaville.com/?p=448 By: Alaka AbdulQuadri, University of Ibadan What will your expression be if after you might have finished eating a plate of rice served with ground beef and a chilled soft drink you realize that the ground beef had been irradiated? From experience, I can justifiably say 90% of such victims will be in dilemma as […]

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By: Alaka AbdulQuadri, University of Ibadan


What will your expression be if after you might have finished eating a plate of rice served with ground beef and a chilled soft drink you realize that the ground beef had been irradiated? From experience, I can justifiably say 90% of such victims will be in dilemma as to whether the food consumed is safe or not. But why the quandary you must subject yourself to? I guess that is radiophobia. Dear! Do you know that irradiating food doesn’t make it radioactive? Interestingly, it can be a veritable tool to safeguard your food from critical food borne infections.

For you to know, when it comes to irradiation, you might need a primer. Simply put, irradiation — first approved by the FDA in 1963 to control insects in wheat and flour — is a non-thermal and non-chemical preservative method through which microbes in food can be killed when foods are exposed to radiant energy (such as γ-rays, electron beams and x- rays) during which a prescribed dose is absorbed. Dosages of irradiation not more than 10 kGy on average would not result in problems of toxicity and nutrition loss while ensuring microbial safety of foods.

Different foods are treated with different dosages. To extend the shelf-life and improve some technological qualities of foods are part of major reasons for the use of food irradiation. Through irradiation, unacceptable high bacterial loaded foods could be made otherwise saleable. Several bacteria (such as E.coli, Campylobacter jejuni, Salmonella, Listeria monocytogenes etc.) responsible for incurable infections can be immensely got rid of through irradiation. Numerous studies have shown that irradiation eliminates bacteria and parasites that Centers for Disease Control say are responsible for 10,000 deaths in the United States.

Put differently, a number of other useful applications of food irradiation can be highlighted. Such applications include inhibition of sprouting of vegetables, insect disinfestation of fruits and control of ripening. Sprouting –a major cause of loss in root crops (potatoes, onions, yams, etc.) can be effectively inhibited by irradiation with low doses. Unconditionally, the use of irradiation in prevention of sprouting has been granted approval in countries like U.S.A, China, Japan, and South Africa.

Grains and tropical fruits that have been infested with insects, thus lowering their sale potential, when treated with low doses (below 1kGy) can be effectively disinfested while shelf –life extension is simultaneously achieved by delaying ripening. Ripening and maturation of fruits and vegetables are also arrested by inhibiting hormone production and interrupting the biochemical processes of cell division and growth.

Just before you ask, of course, the use of irradiation in food processing and preservation has a number of limitations. To start with, if spoilage micro-organisms are destroyed but pathogenic bacteria are not, consumers will have no indication of the unwholesomeness of a food. Also, there could be a health hazard issue if toxin-producing bacteria are destroyed after they have contaminated the food with toxins. Loss of nutritional value and possible development of resistance to radiation in micro-organism could be also be very challenging later.

However, for the sake of safety, the concerns earlier stated have been addressed by the joint FAO/IAEA/WHO expert committee on the Wholesomeness of Irradiated food (JECFI) which concluded that the maximum average dose of 10kGy ‘presents no technological hazard and no special nutritional or microbiological problems in foods’ (World Health Organization, 1977, 1981). To this end, irradiated foods are safe to eat, have longer shelf-life and are nutritiously stable.

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Why do lawyers use the footnoting reference style? https://chartaville.com/2018/03/31/why-do-lawyers-use-the-footnoting-reference-style/ https://chartaville.com/2018/03/31/why-do-lawyers-use-the-footnoting-reference-style/#respond Sat, 31 Mar 2018 06:01:10 +0000 https://chartaville.com/?p=433 By: Oyafajo Ridwan Ayodeji, Obafemi Awolowo University Academic writing relies on more than just the ideas and experience of one author. It also uses the ideas and research of other sources: books, journal, articles, websites and so forth. None of us know everything and rely on the work of others, so it is academic courtesy […]

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By: Oyafajo Ridwan Ayodeji, Obafemi Awolowo University


Academic writing relies on more than just the ideas and experience of one author. It also uses the ideas and research of other sources: books, journal, articles, websites and so forth.

None of us know everything and rely on the work of others, so it is academic courtesy to acknowledge the work of others; this is what will lead us to footnoting reference style. Although, there are other ways of acknowledging others work when making a legal draft/writing, we will be talking about footnoting.

Footnoting cannot be discussed without talking about referencing. Referencing is used to tell the reader where ideas from other sources have been used in an assignment or text. Footnoting is a style of reference, explanation, or comment usually placed below the text on a printed page. The word ‘footnote’ was first used in 1607. Footnoting emerged in the 17th century but it’s now in vogue virtually in all forms of writings, be it Science, Law, Geography, History, Philosophy, Bible, Quran and so on.

Footnoting is a style employed in legal writing. Legal writing is a type of technical writing used by lawyers, judges, legislators and others in law to express legal analyses and legal rights and duties. So it will be wrong for someone to produce a work without the recognizing the sources they get some of the information used in their work from. Failure to properly acknowledge sources is called plagiarism, and it carries a significant academic penalty and a punishable offence. Plagiarism is strictly prohibited in academic work, especially in law review articles, seminar papers and similar writing intended to reflect the author’s original thoughts.

So, to avoid charges of plagiarism in legal writing, materials must be referenced and cited properly and this achieved by footnoting. Footnoting is the most common way of citing materials. There are two types of footnoting; the textual footnoting and the citation footnoting. Textual footnotes reference material/research of related interest to the subject but which does not directly impact the focus of the paper while citation footnotes cite the source of the argument or quotation used. A single footnote can contain both textual and citation information.

Footnotes are indicated in legal writing by superscripted numbers numbered sequentially from 1 [one] to the end of the text. Roman numerals and special characters should not be used in footnotes. Footnote numbers should be placed at the end of the sentence after the punctuation.

It should also be placed directly after the word when referring to just one word and the footnote number should be placed after the quotation marks when quoting a source. A writer may decide to elaborate more about information cited within the footnotes. Items footnoted must be footnoted on the same page on which the references appear, not on the next page. The exact page/s on which the information came from must also be cited in a footnote.

Footnoting is very important in the sense that it properly credits the originators of ideas, theories and research findings. Readers need to see how widely the writer has read and whether the writer has used key sources and how to date the information is and it also provides the readers the options to check on the information used and read more about it.

In conclusion, it can be seen that footnoting in legal writing is tailored towards efficient writing. The credibility of a legal work solely relies on how a writer can research and in the process of research, a writer has to use other source materials and by using it, he has to acknowledge these sources, we also saw the consequences of not acknowledging it which is plagiarism.

Footnoting is not only important for the writer but for the readers also because it enables them to read more about the topic discussed. Other hints in legal writing are introduction, originality, clarity, brevity, grammatical expression, accuracy, organization, use of paragraphs, mechanical accuracy and conclusion.

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A call for the repeal of Statutes of General Application in Nigeria https://chartaville.com/2018/03/30/a-call-for-the-repeal-of-statutes-of-general-application-in-nigeria/ https://chartaville.com/2018/03/30/a-call-for-the-repeal-of-statutes-of-general-application-in-nigeria/#respond Fri, 30 Mar 2018 14:21:58 +0000 https://chartaville.com/?p=377 By: Oyafajo Ridwan Ayodeji, Obafemi Awolowo University Most legal systems in the world over have, in varying degrees, been influenced by others. The main question to answer here is: Should the Statutes of General Application (SOGA) still be applied in Nigeria after independence? Should they (statutes of general application) have been abrogated or reviewed by […]

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By: Oyafajo Ridwan Ayodeji, Obafemi Awolowo University


Most legal systems in the world over have, in varying degrees, been influenced by others. The main question to answer here is: Should the Statutes of General Application (SOGA) still be applied in Nigeria after independence? Should they (statutes of general application) have been abrogated or reviewed by the legislatures in the states (besides Ogun, Osun, Ondo, Oyo, Ekiti and Delta) in which they were received? These are the questions that will be looked into in this paper.

It is important to define what a statute means before we start. A statute according to Merriam-Webster is ‘a law enacted by the legislative branch of a government’. We can infer from this that the Statutes of General Application are laws enacted by the British legislature and are applied to Nigeria. Examples of these statutes as applicable in Nigeria are:

  • Infant Relief Act 1874
  • Trustees Act 1888
  • Limitation Act (Real Property) 1874
  • Statutes of Frauds 1677

Although the term “Statutes of General Application” was not clearly explained by the legislature, many tests have been applied to determine what a Statute of General Application really means and one of them is the case law. Judges have construed it the way they see it and an example is the rough but infallible by Osborne Jsc in Attorney General v John Holt & Co Limited where His Lordship stated as follows:

‘… two preliminary questions, can however be put by way of a rough but not infallible test, viz: (1) by what courts is the statute applied in England? And (2) to what   classes of community in England does it apply? …’

These two tests have seen criticism because of their restrictive nature and have been subjected as fallible. The West African Court of Appeal has also construed the statutes of general application in their decided cases and an example is when, in the case of Young v Abina, the court overruled the decisions in the Dede and Re Estate of Sholu cases as wrongly decided and that the Land transfer Act of 1897 was a statute of general application. Other tests for determining the application of these statutes in Nigeria include: the ‘of general application’ test, ‘matter of statute’ test, ‘local circumstances’ test  and the ‘formal verbal alterations’ test.

Problems would not have arisen in construing the meaning of these statutes if the legislature had adequately determined the meaning. We could infer from the definition of statutes that the sole work of the legislature is to make laws – but they intentionally left them to be general because they didn’t want to go through the stress of repealing the laws, so they therefore accepted them and applied them. That is why the then western region legislatures have to be commended for their brave act of substitution of regional laws for such of these statutes of general application in force in England on 1st of January, 1900, and as such in force in the region, as were deemed appropriate to … and dealt with as matters within the competence of its legislature.

Accordingly, the law of England (Application) Law was enacted, forbidding the further enforcement of all ‘Imperial Acts hitherto in force within the region’. These statutes bordering on matters outside the legislative competence of the region remained in force alongside the rules of Common Law and doctrines of Equity which were untouched. The legacy of this regional exercise has been inherited in the respective states that subsequently emerged from the old Western Region.

Nigeria is now a sovereign state. It is no longer the baby it used to be under the spell of the imperialists during the early stages of colonization. The legislature should know what is good for the country. That is why they are the law-making organ, instead of making good laws, the legislators are there because of the money they get from the House and cause some illegalities like embezzling public funds and quarrelling in the House.

The Nigerian culture is almost, if not totally, different from the British way of life and it is wondered why we still have to practice their laws, although, we could still tap from a few of their laws. If for example, the reason why the legislature enacted the Interpretation Act then was because of their naivety or inexperience, the legislature is presumed to now be mature and should use its discretion to infer what is best for it. Is it not laughable that a fifty-four year old man still follows the dictates of his father and cannot make a decision on his own?

Another sad thing is that most of these laws which were in force in England in 1900 and still practiced by the federal, eastern and northern legislatures have been repealed by the British legislature; an example is the Land Transfer Act (1897) repealed in 1925. It is absurd that a repealed English Statute is still in force in Nigeria (a former colony) because of the reception which was the direct and exclusive volition of the colonialists.

W.C Daniel was not wrong when he said:

‘‘The words ‘statutes of general application’ are a slovenly expression made use of by the legislature to save itself of the trouble of explicitly declaring what the actual law of the colony shall be.’’

It will be necessary for the federal, northern and eastern legislature to imbibe the bold step of the then Western Region Legislature to repeal the unnecessary statutes of general application, abrogate the reception clause, and enact new Nigerian laws for the inhabitants of Nigeria in order to sustain and create Nigeria’s common law in a view to have a stable legal system in Nigeria.

 

References

Introduction to Nigerian Legal Method, Edited by Abiol Sanni (pages 248-249)

Introduction to Nigerian Legal System, J.O Asein (pages 100-113)

A document on sources of law in Nigeria by Dr Fayokun (pages 1-45)

 

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A look at the difficulties, defects and values in the law of tort https://chartaville.com/2018/03/30/difficulties-defects-values-nigeria-tort/ https://chartaville.com/2018/03/30/difficulties-defects-values-nigeria-tort/#respond Fri, 30 Mar 2018 14:03:38 +0000 https://chartaville.com/?p=374 By: Oyafajo Ridwan Ayodeji, Obafemi Awolowo University Some difficulties arise as a result of the rules of tort law while other difficulties can be attributed to the operation of the legal system and are more general in nature. These difficulties, defects and values of law of tort will be our subject of discuss. Before we […]

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By: Oyafajo Ridwan Ayodeji, Obafemi Awolowo University


Some difficulties arise as a result of the rules of tort law while other difficulties can be attributed to the operation of the legal system and are more general in nature. These difficulties, defects and values of law of tort will be our subject of discuss. Before we delve into the issue at hand, however, it is necessary to introduce the concept of tort.

Due to the hustling and bustling nature of the social and commercial life, some civil wrongs arise whereby a person’s right is infringed by another or somebody breaches a duty he owes to another person which brings loss or injury to the other person. It is this situation and other civil wrongs in distinction to Crimes, Contract and Trust that led to the development of the law of Tort from the 13th century onwards in the Kings Common-law Courts.

 

Problem of Definition

Thereof, the first difficulty that arises in the law of Tort is the problem of definition. Academics have gone a long mile in a view to getting it a suitable and precise definition but no exact definition was gotten. Notwithstanding this, a tort can be broadly defined as a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressible primarily by an action for damages. From this definition, the essential aim of the law f torts is to compensate persons harmed by the wrongful conduct of others.

Another mode by which the problem of definition of tort was dealt was by comparing it with Contract, Criminal law and Trust. There are different torts – which include trespass to land, person and chattel, defamation, etc – covering different ways of doing wrong against someone else, and each one comprises a set of things that the claimant must prove in order to win their case. These rules are put in place with a view to have orderliness in litigation because if there are no rules guiding it, the whole system would be muddled up (claimants may bring actions at the slightest provocation) coupled with the fact that not all damage amount to injury and not all legal injury are actionable – this brings us to the principles of damnum sine injuria and injuria sine damno.

Another of this guiding principle is de minimis non curat lax which means the law does not bother or concern itself with trivialities and thus there is no liability. In addition, most torts have four elements, via; an act or omission by the defendant; harm to the claimant, of a type that the law protects against; the harm must be caused by the act or omission; strict liability; motives and malice.

 

Nature of Sources

There is no law without its own defects and tort is not an exception, therefore another difficulty arising out of tort is the nature of its sources. The sources of the Nigerian law of tort just like other substantive laws are; Received English law (which comprises of Common law, Equity and the Statutes of General Application); local and national statutes and judicial precedent.

Just a small number of torts take their rules from statutes, but the vast majority of tort law rules come from common law court decisions and we can see examples in the rules in Ryland v. Fletcher, Donoghue v. Stevenson and some others like that. It is this rules that the court follows when making decisions and not statutes because of the strict rule of stare decisis. Therefore, we can boldly say a difficulty arising out of law of tort is the problem of non-codification like criminal law. So, this leaves the law expansive and not defined.

An irony in the law of tort is that, after the ancient tort known as form of action represented by Royal Writs was abolished by the Common Law Procedure Act 1852 because of its difficulty. Prior to this date, the question in every tort claim was “has the Plaintiff any form of action against the Defendant?” and not “has the Defendant broken some duties owed the Plaintiff?” however, these laws are still practiced; hence the legal luminary Maitland’s remark;

the forms of action we have buried, but they still rule us from their graves.

It is in this view that the legal system practiced in a country comes in, the legal system of a particular country goes a long way in shaping the law, and maybe if the legislature or judiciary has done the right thing, this defect would not be present. Most rules of tort practiced in Nigeria are from the old common law decisions and old statutes predating 1900, these rules have gone archaic and they don’t fit into the modern day tort but they are still followed here.

Another point that should be noted is that some of these statutes have been abolished while some have been repealed, so it is left to the Nigerian legislatures to enact laws dealing with the current problematic areas in the law of tort which have recently been the subject of statutory reform such as liability for animals, liability for defective premises and defective equipment and so on. Lesson can be learnt from the defunct western Nigeria legislature that did not gullibly receive all the statutes in force in England but made some recommendable changes law of torts reform in 1961. It is also left to the courts to recognize their overriding powers to determine what the current law in England is and apply them only as the local jurisdiction allows.

 

Defects in the Nigerian Law of Tort

Having mentioned some difficulties in the law of tort, it has some defects also. All it defects contained in the law of tort in Nigeria cannot be mentioned because it will take a century to list them.

Since there aren’t enough statutes guiding the law of tort in Nigeria, a defect is that of interpretation. The judge interprets some provisions by his mere initiative. An example of this is the “reasonable care” a defendant is required to take. This is not a fixed and easily definable standard because reasonableness is not a static matter, what is reasonable to Mr. X might not to Mr. Z.

Another aspect we would like to look into is the aspect of fault in liability. Most jurisdictions have subjected this to strict liability; it is unfair for a man to be held liable for a tort he does not have a fault like we saw in Ryland v. Fletcher where the defendants were held liable for the carelessness of their independent contractors.

Also, another aspect worthy of mention is the fact that the Plaintiff has to prove that some recognized tort has been committed and he can only do this by showing that the Defendant conduct comes within the definition of trespass, nuisance or negligence as the case may be. This process frustrates the case for the Plaintiff and increases the length and cost of tort cases coupled with unpredictability of which party to win the case and this might bring loss to the plaintiff, making him lose in two ways.

Another issue facing the law of tort in Nigeria is that of the two extreme theories of the foundation of tortuous liability – which are not in concurrence – propounded by Professor Winfield. The wider theory that all unjustifiable act are tortuous and the narrower or pigeon hole theory that fixates all torts to one aspect while regarding any act – no matter how harmful – committed outside this set of tort does not amount to tort.

 

Values in the Nigerian Law of Tort

Notwithstanding these few defects mentioned, the Nigeria law of tort has some values (that it protects). Most torts deal with the protection of personal injuries; tort law aims to compensate the person who has suffered wrong doing, and covers a wide range of different situations where one person (or organization) has caused harm to another or infringed their legal rights

Many individuals would have been injured without compensation if not for the intervention of the law of tort, so the purpose of the law of tort is to adjust those losses or injuries sustained as a result of the social and commercial activities engaged by individuals in order to achieve a desirable social result.

Also, relevant here is a sentence from Professor W. L. Prosser, in his book Prosser on Tort where he propounded his theory of social engineering as the purpose of the law of tort:

“… There remains the body of law which is directed towards the compensation of individuals rather than the public for losses which they have suffered in respect of all their legally recognized interest, rather than one interest only, where the law considers that compensation is required, this is the Law of Tort.”

The purpose of tort is to protect an interest as it relates to law, thus if the interest does not relate to law, it is not the business of tort. Other interests protected by tort besides personal interest are; trespass to chattel, nuisance, land, detinue, negligence protects an individual against interference with his property or right to property. The tort of defamation protects against the damage to reputation. The law of tort also protects physical health, finances, judicial process and family relations.

Thus the value of tort is to prohibit tort, and where a tort is committed,, the law of tort provides a remedy for it, by and award of damages or other appropriate reliefs, thus we can say again that the law of tort serves a deterrence to people and companies from putting profits ahead of safety and also limits the government’s role.

To summarize, the concept of law of tort is inevitable so far we engage in social and commercial activities. It is also not a new development, it has been as far back as the 13th century, and it has its roots mainly in common case laws. However, the old rule has been abolished and special reforms have been going on it, to make it develop with the society. One of its difficulties is the lack of a suitable definition. It was inherited in Nigeria from English Common Law and Statutes of General Application.

Since the law of tort is concerned primarily with the adjustment of conflicting interest of individuals to achieve a desirable social result, there is a need to review and reform some these received laws – that have become defective –  by the Nigerian Legislature so has to meet up with the modern standard, funnily, this laws still operating Nigeria have either being repealed or abolished.

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Why the fuss about the grundnorm of the Nigerian legal order? https://chartaville.com/2018/03/24/why-the-fuss-about-the-grundnorm-of-the-nigerian-legal-order/ https://chartaville.com/2018/03/24/why-the-fuss-about-the-grundnorm-of-the-nigerian-legal-order/#comments Sat, 24 Mar 2018 08:53:40 +0000 https://chartaville.com/?p=364 By: Kehinde Victor Adegoke[1] Introduction The question as to where the grundnorm of the Nigerian Legal Order resides is a question that has over the years generated divergent views and opinions amongst various jurists and academicians. This question is of utmost importance to consider because the mere fact that the grundnorm is regarded as the overriding […]

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By: Kehinde Victor Adegoke[1]


Introduction

The question as to where the grundnorm of the Nigerian Legal Order resides is a question that has over the years generated divergent views and opinions amongst various jurists and academicians. This question is of utmost importance to consider because the mere fact that the grundnorm is regarded as the overriding norm in the Nigerian Legal Order from where all other norms derive their existence and validity supports the fact that Rule of Law (constituted by rules and principles) are not only derived from the grundnorm, but can also be modified, suspended or even abrogated by it. According to a paper delivered by Prof. I. E. Sagay,[2] the learned scholar made it clear that the question is:

whither resides the grundnorm in the Nigerian Legal System which has the awesome power, to abrogate the fundamental rights which Nigerians as a whole have acquired and consolidated over a period of about one hundred and thirty years?

The learned scholar further observed that only if this question can be answered, can it be determined whether or not there is invested in any entity, the power to suspend fundamental rights, to oust the constitutionally granted jurisdiction of the courts either particularly or generally, or to detain Nigerians without trial and without the right to challenge such detention in a Court of Law. He completed his statement by saying that

If this fundamental question is avoided or evaded, then we may have well embarked on a hollow exercise. For if these rights can be taken away lightly and frivolously, we might as well not have them at all, much less discuss them.

 

Kelsen’s Grundnorm

It is noteworthy that the major protagonist of the grundnorm theory is Prof. Hans Kelsen. His major theoretical work gave rise to the controversy as to whether there is, and if there is where does the grundnorm reside in each legal system. Kelsen’s theoretical work is called the “pure theory of law”. His pure theory of law was essentially concerned with presenting a formal structure of law so as to enable us understand the nature of law and state. To that extent, Kelsen was essentially a positivist.[3] This simply means that his theory was based on the law as it is and not as it ought to be. This feature he shares with Austin who was before him.

Kelsen’s pure theory of law shuns the study of law and the science of jurisprudence of irrelevant factors such as ethics, politics, sociology, psychology, history etc.[4] Kelsen believes that a knowledge of law is the same as a knowledge of norms and a ‘norm’ is a proposition in hypothetical form. It is an “ought” proposition which expresses not what is or is done or must be done, but what ought to be, given certain conditions. In other words, its existence only means its validity and this refers to its connection with a system of norms which it forms a part.

However, a very important question is that, if a norm can only be derived from another norm, can one continue the derivation ad infinitum? Kelsen made it clear that there is always an ultimate norm on which other norms rest. This ultimate norm is called the “Grundnorm”. However Kelsen did not rule out the possibility of plural Grundnorm (that is, more than one grundnorm) but he asserts that in such an event they should not contradict each other. In essence, the grundnorm is extra-legal since it does not itself rest on any other legal norm.[5] A whole lot of issues abound in Kelsen’s grundnorm theory which can be covered up by the personal reading of the reader.

 

Search for the Grundnorm in the Nigerian Legal Order

In a bid to provide an answer to the question posed by Kelsen’s theoretical work as to whether there is grundnorm and if there is where does it lie in each legal system, a number of opinions have been expressed. For instance, in Nigeria alone, about four sources have been proposed as being the source of our grundnorm, namely; the Judiciary, the Legislature, the Constitution and the Military (S.M.C. or A.F.R.C).[6]

The major protagonist of the Judiciary school of thought is Justice Kayode Eso. He made his first attempt to propound this theory at the first Idigbe memorial lecture entitled “Is there a Nigerian Grundnorm?” given at the University of Benin on 31st of January 1985.[7] The learned justice relied on the landmark decision reached by Adetokunbo Ademola JSC (as he then was) in the much celebrated case of Lakanmi and Another v. Attorney-General (West) and Another[8] to establish that the grundnorm of the Nigerian Legal Order is the judiciary, by adopting a historical approach involving a shifting of the grundnorm between the Judiciary and the Military.

However, amongst other things, the Eso theory has been criticised for including the possibility of a shifting grundnorm.[9] Among his foremost critics is Professor Abiola Ojo who argued that it is difficult to accept the idea of a shifting grundnorm within the same legal order, be it civilian or a military administration and that judicial decisions, even of the Supreme Court, are mere norms in the hierarchy of norms. According to Ojo,

The grundnorm must have no rule behind it. It is the fons et origo – the norm, one which Salmond regarded so fundamental as to be termed the legal source.[10]

Another critic, Dr Akinola Aguda opined that:

Eso appears to have a concept of the term ‘grundnorm’ somehow different from that of Kelsen[11]

Although Justice Eso did not totally change his position despite these criticisms, he made a few concessions by agreeing that while the Constitution is the master of the Court, its creator, the Court is de facto more powerful than its master. This is more so, since on the long run, the Constitution is what the Courts, especially the Supreme Court says it is.[12]

Prof. Itse Sagay would not agree with Justice Eso and to him, the Supreme Court or the Judiciary cannot possibly be the Grundnorm.[13]

Furthermore, some have also argued that the grundnorm of the Nigerian Legal Order resides in the legislature. The protagonists of this school of thought are largely unknown. While this may be true in the United Kingdom where due to her constitutional history, the Parliament has over the years wielded absolute power to declare all sort of laws, this is not the case in the Nigerian context where the Legislature is seen merely as one of the three main organs of Government which probably enjoys a lesser reputation amongst citizens compared to the Judiciary.

Also, by the provision of Section 4(8) of the 1999 Constitution,

the exercise of legislative powers by the National Assembly or by the House of Assembly shall be subject to the jurisdiction of the Courts of law and judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law[14]

The most popular choice as the grundnorm of the Nigerian Legal Order is of course the Constitution.[15] In addition to Justice Eso who though made it clear that this is with the support of the interpretative jurisdiction of the Court, Dr Aguda is a major protagonist of this school of thought. Justice Oputa can also be said to fall within this school of thought for his commentary on Justice Eso’s paper at the 1988 All Nigeria Judges Conference where he described a nations’s constitution as “its organic law”[16].

Furthermore, the first section of the 1999 Constitution, that is Section 1 (1), (2) and (3)[17] declares this. However one cannot fail to mention that the tendency of the military government to overthrow the civilian government and suspend part of the Constitution (especially the ones dealing with human rights) is a major problem of this school of thought.

A fourth school of thought believes that the Military Ruling Council is the grundnorm of the Nigerian Legal Order. By the Miltary Ruling Council is meant the Ruling or Law Making Body, whatever name it is called, whether the AFRC or SMC as we had in Nigeria and not any major Decree.[18] The major proponent of this school of thought is Professor Ojo.[19]

 

Conclusion and Recommendation

The question as to where does the grundnorm of the Nigerian Legal Order resides has given rise to divergent opinions and schools of thought. The proponent of the Grundnorm theory, Hans Kelsen opined that there is always an ultimate norm on which all other norms rest, that is, the Grundnorm. However, Kelsen himself did not rule out the possibility of plural grundnorm but asserts that in such an event they should not contradict each other.[20] This simply means that there may exist more than one grundnorm within a particular legal order, so far they do not contradict each other. Within the Nigerian context, no less than four sources have been proposed as being the grundnorm; the Judiciary, the Legislature, the Constitution and the Military (S.M.C. or A.F.R.C.).

These various sources have their proponents who have adduced convincing points to support their arguments. It will not be out of place to say that each of these proponents of the various schools of thought has convincing reasons for their positions. To say one position is totally correct at the expense of another may be fallacious. The solution therefore will probably be to follow the proposition of the major proponent of the Grundnorm theory himself, Hans Kelsen who proposed that there can of course be plural grundnorm in so far as they do not contradict each other. As a result, we can safely adopt, though in a refined manner, the argument of Justice Eso that the grundnorm of the Nigerian Legal Order is the Constitution as interpreted by the Court, particularly the Supreme Court.

It is hereby recommended, from the foregoing, that the Grundnorm of the Nigerian Legal Order, going by the proposition of the father of the Grundnorm theory, Hans Kelen are the Constitution and the Judiciary. In order words, we can argue that the Constitution as interpreted by the Judiciary, especially the Supreme Court constitutes the Grundnorm of the Nigerian Legal Order. This position conveniently aligns with the view of Hans Kelsen that there can be plural Grundnorm so far they do not contradict each other. It is unarguable that the constitution creates the court and gives it power, while on the other hand the court interprets the constitution to avoid ambiguity. This is thus a preferable answer to the question: “whither resides the grundnorm of the Nigerian Legal Order?”

 

 

References

Aguda, A. 1989. The Nigerian Grundnorm – A Critical Appraisal: Conference of the Nigerian Bar Association

Akintayo, J.O.A. 2017. Analytical Positivism. Jurisprudence and Legal Theory. (mimeo)

Constitution of the Federal Republic of Nigeria 1999 (as amended) CAP 23 L.F.N. 2004

Ojo, A. 1987. Constitutional and Military Rule in Nigeria. Ibadan, Nigeria: Evans Brothers

Sagay, I.E. 1993. The Supreme Court and the Rule of Law in the Third Republic and beyond. Law, Justice & Stability in Nigeria. Ed. Yemi Akinseye-George.

 


About the Author

Kehinde Victor Adegoke B.A. (Ife) LL.B (Ibadan) is a First Class graduate of Law from the University of Ibadan, the nation’s premier University. He also holds a degree in History and International Relations from the most prestigious Obafemi Awolowo University, Ile-Ife where he bagged a Second Class Honours (Upper Division). This work is edited by Taiye Vincent Adegoke, also a First Class graduate of Law from the premier University

You may reach the author through the following addresses:

Email: kcent25@gmail.com

Phone Number: +234 708 018 1494, +234 803 236 7927


[1] A First Class graduate of Law from the premier University of Ibadan

[2] 1993. The Supreme Court and the Rule of Law in the Third Republic and beyond. Law, Justice & Stability in Nigeria. Ed. Yemi Akinseye-George. pp. 126-166

[3] Akintayo, J.O.A.2017.Analytical Positivism. Jurisprudence and Legal Theory. (mimeo). P.27

[4] Ibid at p.27

[5] Ibid at p.28

[6] Sagay, I.E. 1993. The Supreme Court and the Rule of Law in the Third Republic and beyond. Law, Justice & Stability in Nigeria. Ed. Yemi Akinseye-George. Pp. 126-166

[7] ibid

[8] (1971) 1 U.I.L.R. 201

[9] Sagay, I.E. op. cit.

[10] Ojo, A. 1987. Constitutional and Military Rule in Nigeria. Ibadan, Nigeria: Evans Brother pp. 109-110

[11] Aguda, A. 1989. The Nigerian Grundnorm – A Critical Appraisal: Conference of the Nigerian Bar Association. pp. 14-16

[12] Sagay, I.E. op.cit.

[13] ibid

[14] Section 4(8) of the Constitution of FRN 1999 (as amended) CAP 23, L.F.N. 2004

[15] Sagay, I.E. op.cit

[16] ibid

[17] Constitution of the FRN 1999 (as amended) CAP 23, L.F.N 2004

[18] Sagay, I.E. op.cit

[19] Ojo, A.1987.Constitutional and Military Rule in Nigeria. Ibadan, Nigera: Evans Brother. p.110

[20] Akintayo, J.O.A. 2017. Analytical Positivism. Jurisprudence and Legal Theory. (mimeo). at p.28

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The Sharia Court of Appeal of a state: A vehicle without a wheel? https://chartaville.com/2018/03/22/the-sharia-court-of-appeal-of-a-state-a-vehicle-without-a-wheel/ https://chartaville.com/2018/03/22/the-sharia-court-of-appeal-of-a-state-a-vehicle-without-a-wheel/#comments Thu, 22 Mar 2018 18:55:40 +0000 https://chartaville.com/?p=354 By: ADEGOKE, Taiye Vincent[1] Abstract The provision for the establishment of the Sharia Court of Appeal of a State by the 1999 Constitution of the Federal Republic of Nigeria (as amended) has been criticized amongst other things as being without a solid foundation. A Sharia Court of Appeal in a State that has no Sharia Court […]

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By: ADEGOKE, Taiye Vincent[1]


Abstract

The provision for the establishment of the Sharia Court of Appeal of a State by the 1999 Constitution of the Federal Republic of Nigeria (as amended) has been criticized amongst other things as being without a solid foundation. A Sharia Court of Appeal in a State that has no Sharia Court of first instance may be inconceivable. To equate it with the High Court is unsuitable. The constitution gives the Sharia Court an appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law: thus to think of an appeal court without a court of first instance where an appeal will come from is apparently incomplete. This article seeks to critically examine this lacuna in the provision and suggest workable solutions accordingly.

There shall be for any State that requires it a Sharia Court of Appeal for that State.[2]

The above is the constitutional provision for the establishment of Sharia Courts of Appeal in Nigeria. The Sharia Court of Appeal of a State is of equal coordinate jurisdiction with the High Court of the State.[3] It is part of the courts of superior records as highlighted in that section of the constitution. Thus, it is well recognised by the constitution. Similarly, as noted above, the constitution of the Federal Republic of Nigeria in Section 275 provides for the establishment of the Sharia Court of Appeal of a State.

The appointment, membership, jurisdiction, power and constitution are also provided for in that section. The makers of the constitution however did not make provision for a Sharia Court of first instance which is the bone of contention in this study. Thus, how valid is the provision of Section 275 without a provision for the Sharia Court of first instance? This will be discussed critically in this article.

Section 275(2) provides that the Sharia Court of Appeal of a State shall consist of:

  • A Grand kadi of the Sharia Court of Appeal; and
  • Such number of kadis of the Sharia Court of Appeal as prescribed by the House of Assembly of the State.

In the light of the provision of Section 275(1), a State must require a Sharia Court of Appeal before it is made available to it. But how does a State having no Sharia Court of first instance require a Sharia Court of Appeal? Where does the appeal come from? For example, in the case of the High Court of a State, it can entertain both criminal and civil matters in its original and appellate jurisdiction.[4] Hence, an appeal can lie to the High Court of a State from, for instance, the Magistrate Court.

This article also focuses on the provision of Section 276(3). The sub-section states that:

A person shall not be qualified to hold office as a Kadi of the Sharia Court of Appeal of a State unless:

  • He is a legal practitioner in Nigeria and must have been so qualified for not less than a period of ten years
  • Has attended and has obtained a recognised qualification in Islamic law from an institution approved to the National Judicial Council, and
  • He has either a considerable experience in the practice of Islamic law
  • He is a distinguished scholar of Islamic law.

By virtue of the above provision, it can be inferred that even if a person is not a legal practitioner but has obtained certain Islamic qualifications, he can become a Kadi. This may be not too good for the Nigerian Legal System, as a novice in the craft and art of law should not be allowed to the bench.

Note also that the appointment of a person to the office of the Grand Kadi requires confirmation by the House of Assembly of the State while that of a Kadi of the Sharia Court of Appeal does not.[5]

Another section that calls for attention has to do with the section dealing with Jurisdiction and Power of the Sharia Court of Appeal. Section 277(1) states that:

The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law on which the court is competent to decide in accordance with sub-section two of this section.

Such matters according to sub-section 2 include questions regarding Islamic marriage, guardianship of children (infant), maintenance of the physically or mentally infirm, the dissolution of properties, wills, succession, gift, wakf and so on. However, it is apparent from the wordings of the sub-section that the words ‘such appellate and supervisory jurisdiction’ imply that the clear intention of the legislature is to make the Sharia Court of Appeal of a State completely an appeal court.

By so doing, it would mean that it cannot entertain those matters listed in sub-section 2(a)-(e) at first instance. If this is so, which courts would entertain them? Suffice to note that the High Courts of the States are reluctant to entertain matters of Islamic personal law; declaring themselves as lacking in jurisdiction. The result of this is to leave many muslim litigants seeking remedy without one.

The area of confusion in the establishment of the Sharia Court of Appeal of a State is further evident in its having a coordinate jurisdiction with the High Court of a State.[6] This can be seen from the similarities in the sections providing for the Sharia Court of Appeal and the sections dealing with the High Courts.[7] Section 278 provides that for the purpose of effectively performing the jurisdiction conferred upon it by the constitution and any other laws, a Sharia Court of Appeal to be properly constituted must consist of at least three (3) Kadis of the court.

This section no doubt creates further confusion as to whether the Sharia Court of Appeal is a court of first instance , or an appeal court or both. Remember that in the High Court only one judge is required to sit on a case[8], whereas the constitution requires that at least three kadis sit in the Sharia Court of Appeal for it to be properly constituted. This is an obvious indication that the court is not a court of first instance, and ought not to have been equated with the High Court. It is at best an appellate court. An appellate court with no solid and well organised court of first instance.

 

Conclusion and Recommendation

In conclusion, the establishment of the Sharia Court of Appeal of a State as contained in Section 275 of the constitution is a vehicle without a wheel. It seems to be a confusion in itself. The establishment of such court with an appellate jurisdiction expressly conferred upon it, without a proper court of first instance is not commendable.

This is moreso in most parts of Southern Nigeria where most States have no Sharia Court of first instance or its equivalent to deal with matters of Islamic personal law. In such States, many litigants who seek redress on matters relating to Islamic law are mostly left unattended to. Thus, the provision of Section 275(1) will be meaningless.

It is hereby recommended that there is an urgent need to amend the constitution so as to make provision for a Sharia Court of first instance. These courts will handle cases dealing with muslim personal live like marriage, succession, will, wakf, custody of children, estate management and so on. This will clearly define and give meaning to the appellate jurisdiction intended to be served by the Sharia Court of Appeal of a State.

 

 


About the Author

Adegoke Taiye Vincent B.A. (Ife), LL.B (Ibadan) is a First Class graduate of law from the University of Ibadan, Nigeria. He also holds a degree in History and International Relations (Combined Honours) from the prestigious Obafemi Awolowo University, Ile-Ife, where he finished with a Second Class Honours (Upper Division). This article is edited by Adegoke Kehinde Victor B.A. (Ife), LL.B (Ibadan), also a First Class graduate of law from the University of Ibadan.  

You may contact the author through the following addresses:

Email: tcent250@gmail.com

Phone Number: +234 803 236 7927 or +234 708 018 1494

 


[1] Adegoke Taiye Vincent is a First Class graduate of law from the premier University of Ibadan

[2] Section 275(1) 1999 Constitution of the Federal Republic of Nigeria, Cap 23 L.F.N. 2004 (as amended)

[3] Section 6(5)

[4] Section 272(1) & (2).

[5] Section 276(1) & (2).

[6] See Section 6. Onyia v. State (2008) 18 NWLR (Pt. 1118) 142; Agala v. Egwere (2010) All FWLR (Pt. 532) 1609; Obiuweubi v. CBN (2011) All FWLR (Pt. 575) 208.

[7] See and compare Section 275-276 (for Sharia Court of Appeal) and Section 270-271(for High Court).

[8] Section 270.

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On euthanasia: Does the right to life include a concomitant right to die? https://chartaville.com/2018/03/18/on-euthanasia-does-the-right-to-life-include-a-concomitant-right-to-die/ https://chartaville.com/2018/03/18/on-euthanasia-does-the-right-to-life-include-a-concomitant-right-to-die/#respond Sun, 18 Mar 2018 03:30:24 +0000 https://chartaville.com/?p=345 By: Ujunwa Umeokeke, alumnus of University of Ibadan Introduction: As a result of advances and development in modern medicine, possibility arises which once was never considered of sustaining the life of a person far beyond the point which death would normally have occurred. A problem however arises in that same sphere where it is considered a […]

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By: Ujunwa Umeokeke, alumnus of University of Ibadan


Introduction:

As a result of advances and development in modern medicine, possibility arises which once was never considered of sustaining the life of a person far beyond the point which death would normally have occurred. A problem however arises in that same sphere where it is considered a burden to continue in any way to sustain the life of a person who as a result of severe pain or a combination of other factors is considered to be better off dead. At this point, a decision has to be taken as to whether or not a person would be allowed to live in extreme pain or whether mercy killing should be administered as a form of reprieve from the world of pain

This borders on the question, does a right to life include within it a concomitant right to be put to death? Should an individual have the sole right to determine free from any state interference in the extreme of circumstances to terminate his own life with the aim of easing the burden he poses to his dependants or easing the pain which his life in an entirety has become?

 

Right to Life:

Every human being as a general rule has a right to life and a number of international human rights instruments assert the existence of this right. These instruments include the 1948 Universal Declaration of Human Rights, the 1945 United Nations Charter, European Convention for the Protection of Human Rights and Fundamental Freedom 1950, American Convention on Human Rights 1969 as well as the African Charter on Human and People’s Rights 1981 which prohibit explicitly and implicitly, the unlawful taking of life of another and generally stand for the protection of life.

In Nigeria, the right to life is a sacrosanct provision and a very fundamental human right as it forms the basis for the existence of all other rights vested on an individual. The right to association, right to education, right to peaceful assembly and all other rights which are contained in the provisions of chapter four of the Nigerian constitution ceases to exist without the presence of a right to life. The life of an individual is sacrosanct and incapable of being taken by anyone except in accordance with the provisions of the law.

Section 33(1) of the 1999 Constitution of Nigeria, provides for the right to life. It states that no one shall be deprived intentionally of his life save in the execution of the sentence of a court in respect of a criminal offence of which he has been found guilty of. Therefore, the right of a person must be absolutely protected unless the decision to deprive him of his life is as a result of the judgement of the court based on an offence he is found to be guilty of.

Yet, there are times when as a result of a medical condition or disease, the existence of a person becomes so riddled with pain and unbearable difficulty that death seems and is the only reprieve. The question in this regard thus becomes, does the right to life include the right to die? Should the individual’s decision to die in this instance be exempt and protected from state intrusion? This is one of the biggest controversies of the right to life which is known as “Euthanasia” interpreted as “good death” or mercy killing. Many countries of the world have grappled with the dilemma and controversy surrounding this concept as well as debates for and against its existence.

In the case of R v Johnson,[1] Judge Slade stated,

“I accept that what you did was done out of human compassion but what you did was after considerable premeditation and you acted knowing you were breaking the law, thus I cannot pass over a matter of that gravity, lest others might be tempted to think they can deal in that same way”.

Euthanasia is a form of assisted suicide where a person who is terminally or gravely ill elects to die after all medical intervention has proven unsuccessful. In this instance, the life of such a person is taken if it is believed he is in more pain alive than dead. According to Blacks’ Law Dictionary, Euthanasia also referred to as Mercy killing is: “the act or practice of causing or hastening the death of a person who suffers from an incurable or terminal disease or condition especially a painful one for reasons of mercy.

It is derived etymologically from two Greek words, ‘Euthukos’ which means ‘good’ and ‘thanatos’ meaning ‘death’ which literally means good death or mercy killing. According to Manson and McCall Smith,[2] euthanasia is a quiet, painless death, an intentional putting to death by artificial means of persons with incurable or painful disease. It implies an intentional termination of life by another at the explicit request of the person who wishes to die.

Euthanasia generally involves three major parties namely; the dying patient, the family of the dying patient and the physician or doctor who may in some instance be given permission by the dying patient to carry out the act. The dying patient may as a result of extreme distress voluntarily request either a family member or physician to terminate his life for him. Euthanasia generally, requires a form of intervention by a third party to end the life of the dying patient. The patient usually plays a very important role in any case of euthanasia as the debate on the issue usually arises from the perspective of the patient. The debate on euthanasia is the determination of whether a person’s decision to terminate his or her own life surpasses or trumps his or her right to live on.[3]

 

Types and Classifications of Euthanasia

According to Omipidan, euthanasia can be categorized under six headings. They include: passive euthanasia; active euthanasia; physician-assisted suicide; voluntary euthanasia; involuntary euthanasia; and non-voluntary euthanasia.

  1. Passive Euthanasia simply involves the hastening of the death of a particular person by altering some form of the person’s support and letting nature take its course.
  2. Active Euthanasia involves the causing of death of a person through direct action in response to the request of the person for death. The difference being that in active euthanasia there is an action on the part of the doctor or the person entrusted with bringing about that death whereas in passive euthanasia there is no direct action.
  3. Physician-assisted suicide is a blend of both active and passive euthanasia as the physician in this instance, supplies the necessary information or means of committing the suicide. In People v Kevorkian,[4] Dr Kevorkian, a retired pathologist from Michigan set up a machine that allowed a 54 year old woman suffering from Alzheimer’s disease (a degenerative neurological condition) to press a button that allowed lethal poison to be delivered into her veins. Dr Kevorkian was charged with murder but was not initially found guilty. It was however later held that there is no constitutional right to commit suicide, with or without any form of assistance and his further appeal to the Supreme Court was refused.
  4. Voluntary Euthanasia arises where a person requests a doctor or a family member to put an end to his or her life. The patient might also have given this consent in the form of an advance directive before he or she becomes incapacitated as a result of the sickness. In the case of the case of Tony Nicklinson, a stroke in 2005 left Mr. Tony Nicklinson with ‘locked-in syndrome’ i.e. mentally sound but paralyzed from the neck down and incapable of speaking. He requested to be euthanized but was unsuccessful. As British law stands, any doctor who carried out her request might find themselves facing a charge of murder. Consequently, Tony Nicklinson instituted an action in a London High Court urging the judges to rule that if and when he decides to die, a doctor will be immune from prosecution if they help him. At the hearing, Nicklinson who communicates by blinking or with limited head movement described his existence as dull, miserable, demeaning, undignified and intolerable and not worth living. He further bemoaned his present state of having no privacy or dignity left and having his right to choose life or death taken away. His application for euthanasia or assisted suicide was refused by the High Court. Nicklinson died 6 days thereafter from starvation and pneumonia, after having refused food following the ruling. British police, rather significantly, declined conducting investigation into the circumstances of his death.
  5. Involuntary Euthanasia describes the killing of a person who has not explicitly requested any form of aid in dying. According to Robin, involuntary euthanasia is a situation where medications or other interventions is intentionally administered to cause the death of the patient when the patient was competent but without his/her explicit request or informed consent.

 

Consent as a Defence to a Case of Euthanasia

Under most penal systems all over the world, a person who kills another is liable for the offence of murder and the fact that the deceased gave consent is no justification or excuse for that crime. The idea behind Euthanasia especially voluntary euthanasia is that the dying patient gives permission for his or her life to be extinguished. However, does that consent serve as a reasonable justification for the murder committed?

The issue of consent plays a very vital role in criminal law as in some cases it serves as a suitable justification for the crime committed. Consent has not been accepted as a defence in all cases of criminal law but unlike cases of stealing and rape where consent is capable of serving as a defence for the crime committed, the defence of consent has not been accepted in euthanasia cases. In the case of Commonwealth v Mink,[5] the Supreme Court of Massachusett per Judge C. Gray held that

“the life of every individual human being is under the protection of the law and cannot be lawfully taken by himself or another with his consent except by legal authority”.

The right to life of an individual is so sacrosanct and protected by law that it cannot be terminated at law with or without consent. Therefore under the existing laws of crime, consent is not a justification for the taking of life of another and as such, consent is no defence to euthanasia. Where a person causes the death of another even with permission, such person will be liable to a charge of murder. In the case of State v Okezie,[6] the accused, a native doctor, prepared some charms for the deceased. The deceased then invited the accused to test the charm on him by firing a shot at him. The accused shot him in the chest and killed him. He was convicted of murder.

 

Euthanasia or Mercy Killing: The Nigerian Position

The penal laws in Nigeria are generally governed by the statutes. This comprises of the Penal Code applicable in the Northern Nigeria as well as the Criminal Code applicable in Southern Nigeria. Under those laws, there is no mention of euthanasia or mercy killing. Euthanasia has no place in Nigerian laws and it is considered illegal.

The killing of another person amounts to a crime and the degree of the offence as either murder or manslaughter is dependent on the intent with which it is carried out. There is no distinction in the penal laws of Nigeria between a killing that is carried out by the assistance of a third party with the consent of the deceased and any other kind of killing with the effect that euthanasia in any of its forms is regarded as murder. Section 326(3) of Criminal Code Act provides that ‘any person who aids another in killing himself is guilty of a felony and is liable to imprisonment for life’. Consent has no role to play in this instance.

There is no legal framework put in place in Nigeria to address the fact that some people might in the extreme of circumstances such as terminal illness or incurable diseases choose death over life, that they might decide to sacrifice their right to life at the altar of practicality.

 

Conclusion:

The right to life is regarded as sacrosanct in Nigeria with the effect that there is no concomitant right embedded within to die. Thus as established by the above, where a person consents to the taking of his life by another, such an action amounts to a crime. Euthanasia is illegal in Nigeria and it is no justification that consent is granted.

 

References

  • Bamgbose .O. 2004. Euthanasia: Another Face of Murder. International Journal of Offender Therapy and Comparative Criminology. 48(1) 111-121.
  • Obi M.C. 2014. A critical appraisal of Euthanasia under Nigerian
  • Omipidan B.A. 2011. Euthanasia: The 21st Century Culture of Death. Nigerian Bar Journal. Vol 7, No 1. p 213.
  • Oniha E and Oniha O.S. Euthanasia and Assisted suicide as basic constitutional rights under the 1999 Constitution of Nigeria.

 


[1] (1961). 1 Medical Science Law 192

[2] Manson J.K and McCall Smith, R. A. 1991. Law and Medical Ethics. Butterworths, London. 319

[3] Bamgbose .O. 2004. Euthanasia: Another Face of Murder. International Journal of Offender Therapy and Comparative Criminology. 48(1) 111-121.

[4] 447 mich 436, N.W.2d 714

[5] 123 Mas 422 (1877)

[6] (1972), 2 E.C.S.L.R. 419

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Analysis of Chief Obafemi Awolowo’s 1963 prison speech – using impressionism https://chartaville.com/2018/03/04/analysis-chief-obafemi-awolowos-1963-prison-speech-using-impressionism/ https://chartaville.com/2018/03/04/analysis-chief-obafemi-awolowos-1963-prison-speech-using-impressionism/#respond Sun, 04 Mar 2018 13:07:42 +0000 https://chartaville.com/?p=317 By: Adekunle Adebajo, University of Ibadan THE SPEECH Delivered in the High Court on 11 September 1963 before his sentence, following a charge of treasonable felony I must say, and this may have to be taken up with a higher tribunal, that I do not agree with your Lordship’s verdict, and the premises on which […]

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By: Adekunle Adebajo, University of Ibadan


THE SPEECH

Delivered in the High Court on 11 September 1963 before his sentence, following a charge of treasonable felony

I must say, and this may have to be taken up with a higher tribunal, that I do not agree with your Lordship’s verdict, and the premises on which it is based. For upwards of 30 years, I have been in politics in Nigeria; during this period I have operated in various important theatres in the life of this great Federation. I have, with others, fought against British imperialism with all my might, and with all the talents that it pleased God to give me.

Together with other nationalists, some of whom are with me and many of whom are not with me here, we have successfully thrown out British imperialism and enthroned Africans in positions which, 20 or more years ago, they never dreamt of occupying.

I have been an unyielding advocate of a Federal Constitution for Nigeria. I have all along, with other leaders of this country, been a very active and constructive participant in all the constitutional conferences which have taken place since 1953, and which have culminated, not only in the attainment of independence, but in the production of a Constitution of which Nigerians are very proud.

This Constitution is now being gradually violated. I have also fought against anything which savours of injustice. It is, thus, an irony of history that, as one of the architects of Nigeria’s independence, I have spent almost half of Nigeria’s three years of independence under one form of confinement or another.

Since 1957 I have fought, as your Lordship remarked, with vigour against the feudal system in the Northern Region and for its eradication. I have also fought to prevent the spread of this evil political system to other parts of Nigeria.

During the same period I have strongly advocated the breaking up of Northern Region into more states in order to have true  federation in Nigeria ,to preclude the permanent subservience of people of Nigeria  to the autocratic ruling caste in the north ,and to preserve peace and unity in the country.

In short I have always fought for what I believe ,without relenting and regardless of consequences to myself .i have no doubt ,and I say this without spirit of immodesty ,that in the course of my political career ,I have rendered  services to this country which historians and the coming generation will regard as imperishable

Naturally, Sir, in the course of my long, turbulent and active political life, I have attracted to myself a sizeable crop of detractors and political adversaries. Similarly, I have in the course of this long career seen both triumphs and setbacks; and I have met them with equal mind.

Peter, not Peter the Apostle, but Peter the hero of Hugh Walpole’s novel entitled ‘Fortitude’ said: ‘It isn’t life that matters but the courage you bring to it’. After life had done terrible things to Peter, he heard a voice that said to him, among other things, ‘Blessed be all sorrow, hardships and endurance that demand courage. Blessed be these things: for of these things cometh the making of a man.’ In the words of Peter, therefore, my Lord, I declare (not that I have heard a voice): Blessed be your verdict; and I say in advance, blessed be the sentence which your Lordship may pass on me.

I personally welcome any sentence you may impose upon me. At this moment my only concern is not myself, but that my imprisonment might do harm to Nigeria for three reasons.

First, the invaluable services which I have hitherto rendered and which I can still render will be lost to the country, at least, for a season.

Second, there might be heightening of the present tension which has lasted 15 months, and has done incalculable injuries to the economy of the country.

Thirdly, for some time to come, the present twilight of democracy, individual freedom and the rule of law, will change or might change into utter darkness. But after darkness, and this is common-place, comes a glorious dawn.

It is, therefore, with a brave heart, with confident hope, and with faith in my alterable destiny, that I go from this twilight into the darkness, unshaken in my trust in the Providence of God that a glorious dawn will come on the morrow. My adversaries might say: who am I to think that if I am imprisoned the country might suffer? What if I died? The point, of course, is that I am still alive and will not die in prison. Furthermore, the spirit of man knows no barrier, never dies, and can be projected to any part of the world.

This being so, I am confident that the ideals of social justice and individual liberty which I hold dear will continue to be projected beyond the prison walls and bars until they are realised in our lifetime. In this connection, I must stress that in this very court room, indeed, in this dock and in the entire Federation of Nigeria, the spirit of a new Nigeria is already active and at work. This spirit, working through constitutional means which I have spent the whole of my lifetime to advocate, is sure to prevail, before very long, to the diligent, freedom and prosperity of all and sundry.

Before I close, I must say that in spite of the delay of the past few weeks on the part of your Lordship in giving judgment in this case, and in spite of my disagreement with your verdict which I have just given expression to, I must acknowledge your Lordship’s patience throughout the trial of this case. Particularly, I want to thank your Lordship for the due and special consideration which you have always accorded me and other accused persons.

I thank your Lordship; and I am prepared to abide by your sentence.

Source: Greatest Speeches of Historic Black Leaders, Volume Two, 5th Edition, Edited by Ben Anagwonye, 2013, Mindex Publishing Company Limited, Benin City. Pages 71-74.

 

ANALYSIS

This speech was delivered by Chief Obafemi Jeremiah Awolowo on the 11th of September, 1963 during his trial alongside several others. He had been charged with conspiring with some Ghanaian authorities under Kwame Nkrumah to overthrow the federal government. It will be analysed chiefly from the impressionistic perspective i.e. based on the author’s understanding and opinion, and secondarily from the analytical perspective.

First and foremost, reading through the speech, one may be in doubt as to Chief Awolowo’s level of humility. This is because while he uttered such self-effacing remarks as, ‘and with all the talents that it pleased God to give me’ and ‘I thank your Lordship and I am prepared to abide by your verdict’; he equally spent the bulk of the time narrating his exploits and the ‘invaluable services’ which he has rendered to the Federal Republic of Nigeria. In a speech of 966 words, he used the persona in a total of 43 places. He even dared suggest that his ‘imprisonment might do harm to Nigeria’ thus indicating how highly he thought of himself.

Perhaps Chief Awolowo was only being truthful and indeed his freedom and personality was that crucial to the nation’s progress. Perhaps he was merely calling a spade a spade and pride had nothing to do with it for even Sir Lennox-Boyd, the British colonial secretary of the time, declared Awolowo as ‘the only politician in Nigeria, other (self-declared) politicians are merely his followers’. Or perhaps he said all this just to remind the judge of who it was he had the ‘privilege’ of presiding over and ultimately tilt the scale of justice in his favour. If the latter is the case, it was worth a try but we can say he did not practically succeed. This is owing to fact that the trial Judge, Mr Sowemimo, while delivering his verdict had said;

Whatever others may say, this is my personal view. I am not speaking as a judge but as a Nigerian. Here we have one of the first Premiers of the autonomous region standing trial. If you were the only one before me, I would have felt that it was enough for you to have undergone the strain of the trial. I would have asked you to go. But I am sorry; I cannot do so now because my hands are tied. Having sentenced those young chaps, whatever happen I have to pass some sort of sentence … I was never hoping or thinking that I would be called upon to try a former head of Government and Leader of Opposition. I am only happy that this is a court of first instance.

We can infer from the above that, had he not already sentenced other accused persons, the trial judge would have murdered justice in cold blood and acquitted Chief Awolowo, not because the evidence against him was insufficient but because his respect for him was tremendous. He was literally justifying his judgment, pleading with the accused to understand and rolling over himself to ensure he understands why the trial had to take some time.

Furthermore, this speech may be likened to Nelson Mandela’s ‘An Ideal for which I have Prepared to Die’ in that it was also delivered in a courtroom before a subsequent imprisonment. Nelson Mandela’s speech was delivered just a year later in 1964 in the Supreme Court of South Africa. But then, Nelson Mandela’s speech was not reeking massively of the red herring fallacy. While Awolowo did not seek anywhere in his speech to void the argument of the prosecution, Nelson Mandela right away in his introduction said;

Some of the things so far told to the court are true and some are untrue. I do not however deny that I planned sabotage. I did not plan it is a spirit of recklessness, nor because I have any love for violence.

It should similarly be mentioned that the two personages (both of them lawyers) carefully laced their speeches with their ideals and worldview. Chief Awolowo said close to his closing that;

I am confident that the ideals of social justice and individual liberty which I hold dear will continue to be projected beyond the prison walls and bars until they are realised in our lifetime.

Nelson Mandela analogously said;

During my lifetime, I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.

Moreover from the speech, I could also sense that Chief Awolowo is a stoic who believes in the truism/maxim – que sera sera (i.e. what will be, will be). The basis for this are his occasional admission of fate. For instance, he made such remarks as, ‘I personally welcome any sentence you may impose upon me’ and ‘…and with faith in my unalterable destiny’. There are other aspects of the speech which paint him as an optimist, a revolutionary, a philanthropist etc.

Finally, Awolowo through his speech should strike his listeners (and readers) as an intellectual. This is not manifested only in the way his strung his sentences and his choice of words, but in his allusions as well. A classic example is where he quoted “Peter the hero of Hugh Walpole’s novel entitled Fortitude.” His diction is also brimming with intellectual flavour and linguistic depth. Though he may not have been able to alter his fate away from the cold bars of prison, Chief Awolowo did indeed make his mark not just as a political prisoner and juggernaut, but as someone who heralded his jail term with rhetorical intrepidity.

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