Nigerian Juridical Review Vol. 9 - University Of Nigeria Nsukka

THENIGERIAN JURIDICAL REVIEW

Vol. 9 (2002- 2010)

Articles Page

The Relationship of Law and Morality:

Dichotomy or Complementarity

A Critical Analysis of the Challenges to and

Prospects of the Right to Development as a

Human Right

Nigeria and Cameroon: The Bakassi Dispute

B. O. Okere 1

D. U. Ajah 125

J. Ezeilo 148

Electronic Waste and Developing Economies:

What Options for Nigeria?

Legal Framework for Nigeria's Investors

Protection Fund

Trade Disputes Resolution under Nigerian

Labour Law

The Bar and the Bench as Agents of Consumer

Advocacy in Nigeria

Executive Modification of Existing Laws under

Section 315 of the 1999 Constitution

E. U. Onyeabor 21

E. O. Nwosu & C. Ngozi 48

C. C. Obi-Ochiabutor 71

E. L. Okiche 88

M. C. Anozie 106

FACULTY OF LAW

UNIVERSITY OF NIGERIA, ENUGU CAMPUS

Sylva Prints, Enugu

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EDITORIAL COMMITTEE

General Editor Professor B. O. Okere, Docteur d’Universite de Paris

Assistant Editor Professor G. O. S. Amadi, LL.B., LL.M., Ph.D., B.L.

Statute and Case Note Editor Professor Ifeoma P. Enemo, LL.B., LL.M., Ph.D., B.L.

Secretary Dr. Edith Nwosu, LL.B., LL.M., Ph.D., B.L.

Book Review Editor Chukwunweike A. Ogbuabor, LL.B., LL.M., B.L.

Book Review Editor John F. Olorunfemi, LL.B, LL.M, BL

Distribution Coordinator D. U. Ajah, LL.B., B.L.

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NIGERIAN JURIDICAL REVIEW VOLUME 9 (2002 – 2010)

To be cited as (2002-2010) 9 Nig. J. R.

ISSN: 0189 - 4315

© Faculty of Law, University of Nigeria, Enugu Campus

CONTRIBUTIONS

The Journal welcomes articles in any area or related subjects for publishing considerations. Articles and correspondence should be forwarded to:

The General Editor, Nigerian Juridical Review,

Faculty of Law, University of Nigeria,

Enugu Campus, Enugu, Nigeria. [email protected], [email protected]

Published by The Faculty of Law,

University of Nigeria, Enugu Campus

Sylva Prints, Enugu

+234-08063978826; +234-08181610325 e-mail: [email protected]

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THE RELATIONSHIP OF LAW AND MORALITY: DICHOTOMY OR COMPLEMENTARITY ∗∗∗∗

Introduction The relationship of law and morality has always provoked keen and enduring controversy. Annexed to this problem is the proper delimitation of the jurisdictional competence of the institutional custodians of law and morality, viz: the State and the Church. When this question was put to our Lord Jesus Christ in the Bible, His injunction was “to render to Caesar the things that are Caesar’s and to God the things that are God’s.”1 This response, emanating from Our Lord Jesus Christ, the Supreme Intelligence, appears to be the beacon that guides the relationship between the law and the society on the one hand, and religion and morality on the other hand. Faithful adherence to this injunction, it would appear, constitutes the panacea for the avoidance or resolution of conflicts between these two institutions of church and the State and the social norms of law and morality. Put to the test of human application in modern societies, with their complex and multi-faceted domains of activity, it becomes apparent that a hermetic compartmentalization of the spheres of law and morality is not feasible. This is because legal regulations imposed by the State and moral/religious injunction emanating from the church have a common addressee, namely, man composed of body and soul and having material aspirations as well as spiritual yearnings.

This common domain of competence of the State and the Church generates conflicts. This is graphically illustrated by Hooker:

Suppose that tomorrow the power that hath domain in justice requires thee at court; that which in war, at the field; which in religion, at the temple; all have equal authority over thee, and impossible it is, that thou wilt obey, certain thou art for thy disobedience to incur the displeasure of the other two.2

The State is sovereign and the instrument at its disposal for the manifestation of its will and effectuation of its objectives is the law. After this brief introduction, we shall now proceed to examine this topic under the following rubrics:

∗ Boniface Obinna Okere, Docteur d’ Universite de Paris, Professor of Law,

Faculty of Law, University of Nigeria, Enugu Campus. 1 Luke 20:25. 2 Hooker, Ecclesiastical Polity, VIII, ii, 18.

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1. The Notion of Law and Morality. 2. The Church as the Guarantor of Morals and the

Catholic Conception of Morality. 3. Legal Enforcement of Morals. 4. The Moral Content of our Laws. 5. Secularism and Moral Neutrality. 6. Conclusion.

1. The Notion of Law and Morality

a. The Notion of Law

The definition of law is not free from controversy. The various scholars of jurisprudence define law differently. The positivists define law as command backed by sanction. A leading exponent of this school, John Austin, defines law as:

…a command set, either directly or circuitously, by a sovereign individual or body, to a member or members of some independent political society in which his authority is supreme.

The sovereign punishes his subjects for violation of his law. For St. Thomas Aquinas, “Law is nothing else than a rational ordering of things which concern the common good; promulgated by whoever is charged with the care of the community.” For Plato and Aristotle, “Law is the voice of reason.”

Von Savigny of the historical school defines law as “the expression of the common consciousness of a people.” For him, law is formed by custom and popular faith, “by internal, silently operating powers, not by the arbitrary will of a law-giver.”

The sociological school, as expounded by Von Ihering, conceives of Law as “the sum of the conditions of social life as secured by the power of the state through the means of external compulsion.” For the American Realist Movement, law consists of the rules recognized and acted upon by the courts of justice. In the words of Oliver Wendell Holmes: “The rules which the courts will follow; the prophecies of what the courts will do in fact and nothing more pretentious are what I mean by law.”

For Karl Marx, “Law is a superstructure upon an economic base.” It is an instrument at the disposal of the dominant class (the bourgeoisie) to protect their position and possessions at the expense of the oppressed and exploited masses (the proletariat).

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It is as a result of this multiplicity of definitions that Professor Lloyd has lamented that much juristic ink has flown in an endeavour to provide a universally acceptable definition of law, but with little sign of attaining that objective.3 The weakness of most definitions of law lies in their particularism in that they emphasize one aspect or characteristic of law with scanty or no regard for the other aspects. As Professor Bodenheimer has rightly pointed out:

The law is a large mansion with many halls, rooms, nooks and corners. It is extremely hard to illuminate with a searchlight every room, nook and corner at the same time, and this is especially true when the system of illumination, because of limitations of technological knowledge and experience, is inadequate, at least imperfect.4

A meaningful and acceptable definition of law has to include the essential ingredients of law distilled from the various schools of jurisprudence such as the certainty of source and coercive character as emphasized by the positivists; the social relevance and acceptance as advocated by the historists and sociological exponents, and the purposiveness of law (i.e. justice inherent rationality and satisfaction of the common good) which the naturalists claim is the decisive element of law. The Black’s Law Dictionary defines law as the regime that orders human activities and relations through systematic application of force of politically organized society, or through social pressure, backed by force, in such a society. It consists in the aggregate of legislation, judicial precedents, accepted legal principles and customary law. The highest law of the land is the constitution which, as an embodiment of the collective will and social contract of the people, governs all persons and institutions in the state. It is the supreme law which imparts validity to all other laws. Any law that is inconsistent with it is, to the extent of the inconsistency, null and void.

b. The Notion of Morality Morality is a value-impregnated concept relating to certain normative patterns which aim at the augmentation of good and

3 Lloyd, Introdution to Jurisprudence. 4 Bodenheimer, Jurisprudence (Harvard University Press, 1974) p.163.

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reduction of evil in individual and social life.5 Morality simpliciter, like ethics, deals with the absolute ideal or the universal good. Its first principle, according to Aristotle, is bonum faciendum malumque vitandum, or “good must be done and evil must be avoided.” The aims of morality in its social signification are directed towards increasing social harmony by diminishing the incidence of excessive selfishness, noxious conduct towards others, internecine struggle and other potentially disintegrative forces in societal life. According to Immanuel Kant,6 the distinction between law and morals is to be found in the fact that the law regulates the external relations of men while morality governs their inner life and motivation. The Kantian theory postulates that law requires external compliance with existing rules and regulations, regardless of the underlying motive, while morality appeals to the conscience of man. The moral imperative demands that men act from praise-worthy intentions, above all from a sense of ethical duty, and that they strive after good for its own sake. Law, on the other hand, demands an absolute subjection to its rules and commands, whether a particular individual approves of them or not, and is characterized by the fact that it always applies the threat of physical compulsion. Morality, according to this theory is autonomous (coming from within man’s soul) while the law is heteronomous (being imposed upon man from without). The Kantian theory finds support in the advocacy of the Hungarian jurist, Julius Moor, who asserts:

The norms of morality do not threaten the application of external means of compulsion; no external guaranties for the enforcement of their postulates are of avail to them. The guaranty of their enforcement rests exclusively within the soul of the individual concerned. Their only authority is grounded on the insight that they indicate the right way of acting. Not outward physical compulsion and threats, but the inner conviction of their inherent rightness will bring about the realization of moral norms. Thus, the moral command appeals to our inner attitude, to our conscience.7

5 Bodenheimer, op. cit., p. 290. 6 Immanuel Kant, The Metaphysical Aspects of Justice, (Transl. J. Ladd,

Indianapolis, 1965), pp.13 – 14, 19 – 21. 7 Julius Moor, Macht, Recht, Moral, Szeged, 1922, pp. 15 – 16. Quoted in

Bodenheimer, op. cit., pp. 291 – 292.

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2. The Church as the Guarantor of Morals and the Catholic Conception of Morality

The role of the Church is perceived as that of the custodian of morals. Morality is the quality attributable to human action by reason of its conformity or lack of conformity to standards or rules according to which it should be regulated. This supposes on the one hand that human actions are voluntary and responsible, and on the other, that there are standards and rules by which human conduct should be measured.

Christian writers agree that there are proper and binding norms of conduct and that morality in the strict sense is found in man’s rational choices and is, however, the paramount aspects of human acts. They distinguish the physical from the moral aspect of Christian writers agree that there are proper and binding norms of conduct and that morality in the strict sense is found in man’s rational choices and is, however, the paramount aspects of human acts. They distinguish the physical from the moral aspect of act, saying that the former refers to its physiological existence and that the latter is the relation of the act, and of the whole man, to the value of man, since this is his supreme good of its agent. Perhaps the greatest exponent of Christian teaching in support to law and morality is St. Thomas Aquinas. First he identifies the source of all authority and delimits the confines of that authority. He asserts that God is the source of all authority and thus that acts of human authority are Divinely ordained so long as they are performed within their proper limits. For this proposition he cites St. Paul:

Every soul must be submissive to its lawful superiors; authority comes from God only, and all authorities that hold sway are of his ordinance.8

He saw both law and Divine grace playing their own roles in the guidance of human action.9 Aquinas defines law as:

Nothing but an ordinance of reason made and promulgated for the good of the community by the person to whom its care is entrusted (“nihil, est aliud quam quaedam rationis ordination ad bonum cooune ab eo qui curam communitatis habet, promulgatol).10

8 Summa Theologica, la 2ae, 96:4, quoting St. Paul’s epistle to the Romans 13: 1. 9 “Principium, uteum exterius movens ad bomum est Deus, qui et nos insturit per

legume et juvat per gratium” – Summa Theologica, In 2ae, de lege. 10 Ibid., la 12ae, 90: 4.

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Thus, for him, true law-making consists of three basic elements, rational aim for the common good (bonum commune) enactment by authority; and promulgation. The idea of law as an ordinance of reason includes all rules of reason, while according primacy to Divine will which is the highest reason. Law is thus seen as a rational phenomenon, one which derives its moral stature from concordance with the highest reason, the will of God, which is also the highest “law”. This highest law, which Aquinas calls Eternal Law (“lex eternal”) is the will of God governing the motions of the universe and is “law” in its widest significance comprising “natural laws” as understood by the scientist (“laws of physics”) as well as the various usages of the term by lawyers and philosophers (“normative laws”). This Eternal law is “the plan of government in the Chief governor.” It is the divine reason and wisdom directing all movements and actions in the universe. All things subject to Divine providence are ruled and measured by the eternal law. In its entirety it is known only to God. Even though being is capable of knowing it as it is (except perhaps “the blessed who sees God in His essence”) he can have a partial notion of it by means of the faculty of reason with which God has endowed him (Natural law or “lex naturalis”) or have a partial insight to it through scriptural revelation (Divine law or “ lex divina”).

Natural law directs the activities of man by means of certain general precepts. The most fundamental of these precepts is that good is to be done and evil to be avoided. St. Thomas Aquinas is convinced that the voice of reason in us (which enables us to obtain a glimpse of the eternal law) makes it possible for us to distinguish between morally good and bad actions. According to his theory, those things for which man has a natural inclination must be regarded as forming part of the natural law. First, there is the natural human instinct of self-preservation, of which the law must take cognisance. Second, there exists the attraction between the sexes and the desire to rear and educate children. Third, man has a natural desire to know the truth about God, an inclination which drives him to shun ignorance. Fourth, man wishes to live in society, and it is therefore natural for him to avoid harming those among whom he has to live. While Aquinas considers the basic precepts of natural law immutable, he admits the possibility of changing the secondary precepts (which are certain conclusions derived from the first principles under certain circumstances).

Divine law supplements the rather general and abstract principles of natural law. Divine law is revealed by God through

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the Holy Scriptures as recorded in the Old and New Testaments. Human positive law (“lex humana”) is made by man but derives its moral authority from concordance with Eternal law as from time to time revealed or perceptible to mankind through Divine or natural law. In order that a governmental mandate may have the quality of law, it needs to comply with some postulate of reason. An unjust and unreasonable law, and one which is repugnant to the law of nature, is not law but a perversion of law.

In the Thomist system, the Church was seen as the interpreter of God’s will on earth and thus able to condemn human laws which conflicted with Eternal law and to release their subjects from the moral obligation of obedience. Aquinas concluded that as all authority comes from God, the proper use of it must accord with the Divine will and any human ordinance in conflict with the higher law could not be binding in conscience. It is within this theological enunciation of Catholic morality that one can appreciate and evaluate the directives and injunctions of the church over moral issues. The relationship between law and morality is delicate and problematical in any modern society and particularly moreso in a pluralistic society such as ours in which large group of citizens sincerely differ, theologically and philosophically, about the morality of many activities and institutions and about the proper public policy of the State concerning them. Despite their shared reverence for the sanctity of human life, for the sacredness of the marriage institution, for the dignity of the children, the fact is that there are divergent views over civil laws and public policy respecting marriage and divorce, monogamy and polygamy, adultery and fornication, prostitution and homosexuality, artificial insemination and in vitro fertilization, abortion and sterilization, birth control and contraceptives, surrogate motherhood and adoption of children, sex education and pornography, suicide and euthanasia, drugs and capital punishment, and even the question of blood transfusion or medical aid to sick or dying children. These are social problems with profound moral dimensions calling for legal regulation. What principles should inform decisions in such issues: libertarianism, utilitarianism, morality, tradition or expediency? This dilemma is very well illustrated by the Lord Devlin – Professor Hart debateover the 1957 Report of the Wolfenden Committee on

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Homosexual Offences and Prostitution, and legal enforcement of morals.11 3. Legal Enforcement of Morals Is morality a validating criterion of law? Should morality be enforced through the instrument of coercive legislation? The first question was addressed in the famous debate between Professor Herbert Hart and Lon Fuller, while the second engaged the polemics of Professor Hart and Lord Devlin.

11 Lord Devlin, The Enforcement of Morals (Oxford, 1968); H.L.A. Hart, Law.

Liberty and Morality (Oxford, 1968).

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The Hart-Fuller Debate In 1944, a woman who had personal grudge against her husband and probably wanted to get rid of him, denounced him for making insulting remarks about Hitler. The husband was sentenced to death. That sentence was later commuted to service in the Russian war front. In 1949, the wife was prosecuted for the offences of illegally depriving a person of his liberty. The wife’s defence was that her action was legal, since the husband’s action had contravened a law which was valid at the time of the denunciation. The court found her guilty, stating that the law under which her husband had been sentenced and which authorized spouses to spy on and denounce each other was “contrary to the sound conscience and sense of justice of all decent human beings” and was therefore held to be invalid for being devoid of justice and morality, i.e. lex injusta non est lex.

Hart contended that the iniquitous nature of a rule which might disentitle it to obedience does not necessarily entail its invalidity. As a positivist, Hart excludes morality as a necessary ingredient of law, for he says that positivists are concerned to promote:

Clarity and honesty in the formulation of the theoretically and moral issues raised by the existence of particular laws which were morally iniquitous but were enacted in proper form, clear in meaning, and satisfied all the acknowledged criteria of a system.

To subject law to moral validation, according to Hart, would oppose the danger of anarchy. He insists that the law is the law if it satisfies the formal criteria of validity. Moreover, punishing the grudge informant who relied on the Nazi law in denouncing the husband would pose a “moral quandary.”

It may be conceded that the German informers, who for selfish ends procured the punishment of others under monstrous laws, did what morality forbade; yet morality may also demand that the state should punish only those who, in doing evil did what the state at the time forbade. This is the principle of nulla poena sine lege.12

Objectionable as this might be, his suggestion to circumvent this moral dilemma posed by grudge informers and Nazi collaborators

12 Hart, Concept of Law (Oxford: University Press, 1961) p. 207.

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is the expedience of a retrospective criminal legislation to criminalise the various morally iniquitous acts committed by them during the war as the legal basis for their trials and punishments. As a positivist, Hart defends the positivistic axiom that the duty of “Fidelity to Law” embraces all rules which are valid by the formal tests by a legal system, although some of them may be decisively repugnant to the moral sense of the community.

On the contrary, Professor Fuller insists that the attitude of the German post-war court was absolutely correct, and that Professor Hart was in error. His argument is that law has and must possess “internal morality” and certain characteristics of it are to be classified correctly as “law”.13 Fuller argues that a legal system is the purposive human enterprise of subjecting human conduct to the guidance and control of general rules. Whatever its substantive purpose, a legal system is bound to comply with certain procedural standards or desiderata. These are: generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy and congruence between declared rule and official action. In the absence of compliance with these eight desiderata, what passes for a legal system is merely the exercise of state coercion. The Hart-Devlin Debate The Wolfenden Committee had recommended the decriminalization of homosexual acts between consenting adults in private. Its justification was that:

The importance which society and the law ought to give to individual freedom of choice and action is matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality which is, in brief and crude terms, not the law’s business.

The Wolfenden Committee endorsed Mill’s statement that “the only purpose for which power can be rightfully exercised about any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral is

13 “Positivism and Fidelity to Law – A Reply to Professor Hart”, Harvard Law

Review, 1958.

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not a sufficient warrant.14 The Wolfenden Committee had said that the function of criminal law:

Is to preserve public order and decency to protect the citizens from what is offensive or injurious and to provide sufficient safeguards against exploitation and aggravation of others, particularly those who are vulnerable because they are young, week in body or mind, inexperienced, or in a state of special physical, official, or economic dependence. It is not in our view, the function of the law to intervene in the private lives of citizens.”

Although he initially expressed sympathy for the Wolfenden Report’s insistence on a “realm of private morality” and favour for law reform in the case of homosexuality, Lord Devlin (Sir Patrick Devlin as he then was) disagreed with the Wolfenden approach as a general guide to the legal enforcement of morals.15 He posed three questions:

1. Has society the right to pass judgement at all on matters of morals? Ought there, in other words, to be a public morality or are morals always a matter for private judgement?

2. If society has the right to pass judgement, has it also the right to use the weapon of the law to enforce it?

3. If so, ought it to use that weapon in all cases or only in some? On what principles should it distinguish?

To the above questions, Lord Devlin answered as follows: a. Society does not have the right to pass judgement on morals.

What makes a number of individuals into a “society” is precisely a “shared morality”. “If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate .”

b. Society does have the right to use the law to enforce morality “in the same way as it uses it to safeguard anything also that is essential in its existence.” Thus, “the suppression of vice is as much the law’s business as the suppression of subversive activities.”

c. But society should only use the law in some cases.

14 John Stuart Mill, On Liberty (1959). 15 See “The Hart-Devlin Debate” in Simon Lee, Law and Morals (Oxford:

Oxford University Press, 1986) pp. 26 – 30.

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Lord Devlin suggests four guidelines, all of which are principles of restraint in the way society should use the law to enforce morals: i. “Nothing should be punished by the law that does not lie

beyond the limits of tolerance.” That tolerance should extend to the maximum individual freedom consistent with integrity of society. The limits of tolerance are reached at a “real feeling of revulsion” not merely as a “dislike” of a practice.

ii. “The extent to which society will tolerate – I mean tolerate, not approve – departures from moral standards varies from generation to generation.”

iii. “As far as possible privacy should be respected.” iv. “The law is concerned with a minimum and not with a

maximum standard of behavior.” Professor Hart adopts a contrary view and asks:

Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law? Is it morally permissible to enforce morality as such?

He accuses Devlin of “legal moralism” and urges the need to draw a distinction between “critical” morality (i.e. ideal morality) and “positive” morality (accepted and shared by society). Otherwise, there is a danger of entrenching society’s prejudices under the banner of morality.

In our African society, the issue of homosexuality, in our estimate, poses no moral dilemma. It is not only repugnant to natural law (i.e. natural order or things) and African customary sexual relations but also repulsive to the sensibilities of most Africans. Above all, it is against biblical injunction.

There are other moral issues that pose a greater dilemma because of their profound social significance. The use of contraceptives and in vitro fertilization are quite illustrative. In the Encyclical Humanae Vitae of Pope Paul VI, published in August 1968, the church claims the right to “interpret moral natural law” and asserts that “marriage and conjugal love are by nature designed for the procreation and education of children.”16 Since the church considers married couples as mere instruments of God in the act of procreation, it is opposed to birth control which

16 My translation from the French text: “…le marriage et l’amour conjugal sont

par nature destines a la procreation et l’ education des enfants.”Concile Vatican II Constitution pastorale sur l’ Eglise et le Monde d’ aujoud‘hui, No. 50.

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violates natural law. This raises many problems and confronts the church with the dilemma of how to reconcile prohibition of birth control otherwise than “naturally” with population explosion in the face of diminishing resources especially in third world countries.17 The problem of contraceptives, especially the use of condoms, has assumed a critical dimension with the widespread scourge of AIDS (acquired immune deficiency syndrome) with its attendant fatalities. Human cloning and stem-cell research are the latest scientific innovations that pose great moral dilemma to the church and political society.

4. The Moral Content of Nigerian Laws The view that law relates exclusively to external conduct, while morality is interested in inner motivation cannot be accepted as a generally valid explanation of the relation between these two agencies of social control. This relation is more complex and fluid than is suggested by the Kantian policy. No modern legal system can isolate law and morality within watertight compartments. An eminent English jurist of the positivist school of jurisprudence admits the influence of morality on law and reminds us that:

The law of every modern State shows at a thousand points the influence of both the accepted social morality and wider general ideas. These influences enter into law either abruptly and avowedly through legislation, or silently and piecemeal through the judicial process.18

Morality has had and continues to have to have a refining influence on positive law as will be vindicated by a cursory review of the following branches of the Nigeria law.

a. Equity The doctrines of Equity sprang up from the felt necessity of an appeal to the court of conscience- the conscience of the Chancellor who was an ecclesiastic and the keeper of the King’s conscience. Redress was sought and offered where it was otherwise not available under the formalism of the common law writs. It is true that these doctrines of equity sooner acquired the same rigidity and technicality of the common law, but its influence in attenuating the rigid formalism of the common law

17 In its encyclical, Sollicitudo Rei Socialis the Vatican recognizes and criticizes

the worsening gulf between the rich industrialized nation and the poor developing third world countries.

18 H. L. A. Hart., The Concept of Law, 2nd ed, (Oxford: Clarendon Press, 1994), pp. 203-204.

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subsists especially in the enlightened application of the maxims of equity, eg:

• Equity will not suffer a wrong to be without a remedy. • He who seeks Equity will do Equity. • He who comes into Equity will come with clean hand. • Delay defeats Equity. • Equality is Equity. • Equity looks to the intent rather than to the form. • Equity looks on that as done which ought to be done. • Equity imputes an intention to fulfil an obligation. • Equity acts in personam.

b. Law of Contract • nudum pactum (absence of obligation in the absence of

consideration). • Quantum meruit • Consensus ad idem (reality of consent) • Invalidity of contracts secured under duress • Force majeure and act of God • Ex turpe cause oritur non actio • High Tree case

c. Sale of Goods • Shift in emphasis from laissez-faire doctrine of caveat

emptor to decent dealing. d. Insurance Law

• Contract uberrimae fidei (of utmost good faith) importing duty of utmost disclosure of material facts that may influence the underwriter’s opinion.

• Concealment of a material fact avoids the policy. e. Law of Agency

• Shift from mere authority to fiduciary obligations. f. Law of Property

• Roman conception of ownership (right to own, use and destroy) now being progressively modified in the sense of shift from power to social duties.

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g. Criminal Law • Actus non facit reum mens sit rea:(In most cases mere overt

acts do not constitute an offence unless accompanied by a guilty mind – See s. 24 of Criminal Code).

• Qui Facit per alium facit per se: (He who procures an agents to commit an offence is deemed to have committed the offence himself. See section 7 of the Criminal Code).

• Offences against morality Unnatural offence (“against the order of nature”) – homosexuality, bestiality – section 214 – 233, Criminal Code.

h. Customary Law • Invalidity of native law and custom that is repugnant to

natural justice, equity and good conscience. i. Administrative Law

• Concept of natural justice • Nemo judex in causa sua • Audi alteram partem

j. Law of Tort • Enlarging the ambit of the duty of care: see Denoghue v

Stevenson19 k. Evidence and procedure

• Presumption of innocence of the accused until guilt is proved.

• Character evidence. • Presumption affecting non production of documents and

withholding of evidence. l. Constitutional Law

• Separation of powers to check tyranny. • Fundamental Human Rights provisions.

Following on the trail blazed by the American Constitution, most modern constitutions have now enshrined the idea that natural rights could be subject of legal guarantees and that these could be adjudicated upon. Furthermore, because these rights are embodied in the constitution, they enjoy a special priority enabling the

19 [1932] AC 562.

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courts to treat them as superior to and so superseding any legislation or other legal rule which conflicted with them. The humanizing and moralizing wind of natural law has also blown through international organizations, inspiring their collective actions for the benefit of citizens of the member States.

a. The United Nations i. The Universal Declaration of Human Rights, 1948 (a

practical reaction to and revulsion against widespread violation of human rights during World War II).

ii. International Covenant on Economic, Social and Cultural Rights, 1966.

iii. International Covenant on Civil and Political Rights, 1966.

iv. International Convention on the Elimination of All Forms of Racial Discrimination, 1966.

v. The Vienna Convention on the Law of Treaties, 1969 which introduced the idea of jus cogens.

It is not every norm of morality that forms part of our corpus juris. The law does not set out to legislate against sin. This is because there are no uniform moral standards and between the extremes of maximum and minimum morality, the pendulum of the law hovers at the via media. In the words of St. Thomas Aquinas:

Law is laid down for a great number of people of which the great majority has no high standard of morality, therefore, it does not forbid all the vices from which upright men can keep away but only those grave ones which the average man can avoid and chiefly those who do harm to others and have to be stopped if human society is to be maintained such as murder, theft, and so forth.20

Thus, moral norms which add greatly to the quality of life and the establishment of closely knit bonds among men, but which demand more of human beings than is regarded as necessary for the preservation of the essential conditions of social existence do not form part of our legal system and impose no legal obligations. The values of generosity, benevolence, charity, unselfishness, and loving kindness belong to this category. The second category consists of tenets of moral rightness which are considered basic and imperative for the social co-existence and are endowed in

20 Thomas Aquinas, Summa Theologica, 1a 2ac, qu. 96 Art. 2

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Nigeria and indeed all societies with obligatory character of law. This category includes the prohibition of murder, rape, robbery, and physical assaults, the ordering of relations between the sexes, the interdiction of fraud and bad faith in the conclusion and performance of consensual agreements. In the delimitation of the frontiers of the rights and obligations of the citizens, the law is concerned not so much with the maximum morality of doing good (bonum facere), in the image of the good Samaritan, but with the minimum morality of avoiding evil (malum vitare), the typical homo juridicus. As Lord Atkin aptly remarked, the Bible (moral code) enjoins us to “love your neighbour” but the law imposes the limited obligation of “Do no harm to your neighbour”.21 From the above tour d’ horizon, it is clear that our law does not consist exclusively of positive commands devoid of ethical content. The refining influence of morality is all too evident. It is an “ethico-imperative co-ordination”.22

5. Secularism and Moral Neutrality The 1999 Constitution of Nigeria prescribes secularism. Section 10 of the Constitution stipulates that: “The Government of the Federation or of a State shall not adopt any religion as State religion.” Secularism does not mean atheism and the Nigeria Constitution, laws and practices, recognize and acknowledge God. The Preamble to the 1999 Constitution proclaims Nigeria as “one indivisible and indissoluble sovereign nation under God”. It guarantees “freedom of thought, conscience, and religion”. It prescribes the taking of oaths of office for the President and other designated public office holders, which end with the words “so help me God.” It prescribes for the giving of evidence on oath, which is accorded more weight that evidence not on oath. It provides for the observance of holidays of obligation for the two major religions. The government provides financial aid to religious bodies either directly through grants or subventions for pilgrimages or indirectly through tax exemption. The Criminal Code (sections 210-213) punishes offences against religion.

Even in the United States where strict religious neutrality or what Thomas Jefferson called “a wall of separation between Church and State” is maintained in conformity with the

21 Donoghue v Stevensons (supra), p. 579. 22 N. S. Timashef, An Introduction to the Sociology of Law, (Cambridge: Mass,

1939), pp. 245-248.

18

Constitution which enjoins the State to “make no law respecting the establishment of religion”, the Supreme Court was able to say that:

We are religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any group and that let each flourish according to the zeal of its adherents and the appeal of its dogma. When the State encourages religious instruction or co-operates with religious authorities by adjusting the schedule of public events to sectarian needs. It follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the Government show a callous indifference to religious groups. That would be preferring those who believe in no religion to those who do believe.

American secularism is one of State neutrality in the sense of non involvement in religious affairs. It is a constitutionally imposed obligation of religious impartiality which is equidistant from the two opposite poles of religious favouritism and religious hostility.

Nigerian secularism should be comprehended in the same sense. Secularism under the Nigerian constitution does not mean moral neutrality but religious neutrality. Our laws recognize and integrate norms of morality which are distilled more from the moral imperative of social co-existence (which may be co-incidental with the moral norms of native law and custom and Christian or Islamic moral injunctions) rather than predicated on any religion as such. 6. Conclusion For a multi-ethnic, multi-cultural and multi-religious State like Nigeria, secularity is not only a dictate of reason and a sine qua non for social harmony and political stability, but also a legal imperative. Even though this secular status is consecrated by the Constitution, attempts - from the subtle to the brazen – are made by the ruling elite, to subvert this religious neutrality. Furtherance of this objective and attempts to resist the encroachment has often eventuated in violent conflicts. Resulting from this socio-cultural and religious heterogeneity, evolution of common moral values has not been an easy enterprise. The Penal Code of Islamic

19

inspiration operates in the Northern State of Nigeria, while the Criminal Code operates in the South.

Is it possible then to distil certain common moral denominators consistent with natural law and respect for the rights of others (if not love of the neighbour) which can promote social harmony? As we have seen from a panoramic review of the Nigeria corpus juris, a strong strand of morality runs through all the branches of Nigerian law. The State and the Church have a complementary role to play in the regulation of the citizen who, as a human being, is composed of body and soul and has material aspirations as well as spiritual yearnings. Morality is a necessary ally of the law and fosters its efficiency. As Bodenheimer observes:

Tenets of social morality are devised in order to curb intra-group aggressiveness, reduce predatory and unconscionable practices, cultivate concern for one’s fellow men and thereby increase the possibilities of a harmonious co-existence.23

Even an avowed positivist like Professor Herbert Hart recognizes that:

The certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demand must in the end be submitted to a moral scrutiny.24

He also acknowledges that statutes may be a mere legal shell and demand by their express terms to be filled out with the aid of moral principles.25 This function of filling in the gaps in the law is performed by the judge who is a member of the society and a product of its cultural synthesis. In his interpretative and adjudicatory function, he calls in aid and draws inspiration from the general spirit of the legal system, certain basic premises or clearly discernible trends of the social and economic order and, above all, from received ideals of justice and certain moral conception of his society in interpreting the bare words of the law. Mere positive injunctions, devoid of justice and morality would subject the legal system to such stresses and strains that it would collapse. Its temporary survival would be at an exorbitant policing cost. For obedience to the law proceeds more from inner morality

23 Bodenheimer, Jurisprudence, (Harvard: University Press, Cambridge, Mass,

1974), p. 293. 24 H. L. A. Hart., op. cit., p. 206. 25 Ibid., p. 199.

20

or moral habituation than from fear of the State’s apparatus of coercion. That was why the French agnostic, Voltaire said: Si Dieu n’ existait pas il faudrait L’inventer” (“If God did not exist, it would be necessary to invent Him”).26 Thus, we have seen that the relationship of law and morality in Nigeria is not one of dichotomy but of complementarity. It integrates and reconciles legal imperatives with moral desiderata. It is an “ethico-imperative co-ordination.”

26 N. H. Timashef., op. cit., p. 245-248.

21

ELECTRONIC WASTE AND DEVELOPING ECONOMIES: WHAT OPTIONS FOR NIGERIA? ∗∗∗∗

Abstract

There is virtually no household or individual in Nigeria that has not in one way or the other purchased, acquired, made use of or discarded one electrical/ electronic device or another in the recent past. The developed economies, which incidentally produce these devices, now have increased regulation of these products as a result of the concern on their environmental harm. The devices: used computers; cell phones and other mobile devices; household air-conditioners; washing machines; refrigerators; etc, are often exported to developing countries that are ill-prepared to tackle the technologies involved and do not possess relevant capacities to manage them in an environmentally sound manner. In some cases, obsolete and discarded electrical/electronic equipment are sent to some developing countries, including Nigeria, as charity. These “gifts” are received without a deep knowledge of their environmental implications compounded by their high obsolesces. Often, the laws of these developing economies are ill-fitted to tackle appropriately the problems of e-waste. This paper explores the options for managing e-waste in Nigeria.

Key words: Electrical/Electronic waste (e-waste); e-waste and health hazard; trends in e-waste management; e-waste management options for Nigeria.

1.0. Introduction Electronic waste is one of the emerging environmental problems that is of interest to international environmental law. With growth in the use of electrical and electronic gadgets in virtually every human endeavour in recent years, coupled with the speed with which they become obsolete and get discarded, electronic waste, has become a new wave of hazardous waste which is now of serious environmental concern to the international community, especially in the developing countries. This new wave of waste is generally referred to as ‘e-waste’. The ‘e-waste’ has been noted as the most rapidly growing waste problem in the world today. It is

∗ Emmanuel Onyeabor, B.Ed (Hons) Geog, M.Sc (Env. Mgt), M.Sc (Dev.

Planning) LL.B (Hons.), LL.M (Env Rights), BL, Senior Lecturer, Environmental and Planning Law, Faculty of Law, University of Nigeria, Enugu Campus.

22

estimated that, weight for weight, the average computer chip does more harm to the environment than a car. To make a 2-gram memory chip, over 1,400 grams of materials and fossil fuel are needed. Computers, which have a high rate of obsolescence, also contain cadmium, lead and mercury and when they are no longer required are dumped, recycled or disassembled to recover precious metals such as gold and copper, the rest are discarded as wastes.1 Because this class of waste was not envisaged by the Basel Convention in 1989, the sixth Conference of Parties to the Convention met in Geneva, in December, 2002 to address a wide number of topics, including the growing issue of ‘e- waste’, among others. 2

''Electronic waste'', ''e-waste'', ''e-scrap'', or ''Waste Electrical and Electronic Equipment'' (''WEEE'') is a loose category of surplus, obsolete, broken, or discarded electrical or electronic devices. It may be defined as all secondary computers, entertainment devices, electronics, mobile phones, and other items such as television sets and refrigerators, whether sold, donated, or discarded by their original owners.3 This definition includes used electronics which are destined for reuse, resale, salvage, recycling, or disposal. It is also seen as the fastest growing component of municipal waste worldwide with 20-50 million tones generated annually.4

People like Morgan5 defined the reusable (working and repairable electronics) and secondary scrap (copper, steel, plastic, etc.) to be "commodities", and reserve the term "waste" for residue or material which was represented as working or repairable but which is dumped or disposed or discarded by the buyer rather than recycled, including residue from reuse and recycling operations. Because loads of surplus electronics are frequently commingled (good, recyclable, and non-recyclable), several public policy advocates apply the term "e-waste" broadly

1 UNEP: Basel Basics (Website): http: //www.basel.int /Pub/basic, accessed

20/04/2010. 2 During the conference technical guidelines were adopted on disposal and

recycling of ‘e-waste’, lead-acid batteries, plastic wastes and obsolete ships. 3 E. Waste Toxic- Not in Our Backyard; http://www/greenpeace.org, accessed

06/02/2010. 4 United Nations Environment Programme (UNEP), www.unep.org, accessed

22/02/2010. 5 Russell Morgan: “Tips and Tricks for Recycling Old Computers”,

http://www.smartbiz.com/article/articleprint/1525/-1/58/21/08/2006, accessed 17/03/2010

23

to all surplus electronics.6 It should be noted that both types of e-waste have raised considerable concern considering that many component of such equipment are considered toxic and non- biodegradable. Some exporters may deliberately leave difficult-to-spot obsolete or non-working equipment mixed in loads of working equipment (through ignorance, or to avoid more costly treatment processes).7

There is increased regulation of electronic waste and concern over the environmental harm which can result from toxic electronic waste in the developed economies and this has raised disposal costs. The regulation creates an economic disincentive to remove residues prior to export. In extreme cases, brokers and others calling themselves recyclers export unscreened electronic waste to developing countries, avoiding the expense of removing items like bad cathode ray tubes (CRT), the processing of which is expensive and difficult. As a result, electronic waste is often exported to developing countries that are ill prepared to tackle technologies which they do not possess relevant capacities to manage. In June 2008, a container of electronic waste, destined from the Port of Oakland in the U.S. to Sanshui District in mainland China, was intercepted in Hong Kong by Greenpeace.8 Concerns over exports of electronic waste were raised in press reports in India, Ghana, Ivory Coast and Nigeria. In addition countries such as Ghana, Nigeria, Pakistan, India and China have in recent past become hot spots for e-waste dumping, though recycling occurs, but this happens illegally.9

In the case of Nigeria this state of affairs has attracted comments from high quarters. In 2007, the Minister in charge of Federal Ministry of Environment and Urban Development acknowledged that:

Large quantities of electronics and electrical that are obsolete are entering the market…. Nigeria in recent years has become the hotbed of high high-tech growth which prompted the

6 Russell Morgan, ibid. This Debate continues over the distinction between

"commodity" and "waste" electronics definitions. 7 All the same, obsolete household electronic and electrical gadgets, such as

computers, are termed “hazardous household waste” by the United States Environmental Protection Agency (EPA).

8 Greenpeace International: “Illegal e-waste exposed”, available at http://www. greenpeace.org/international/news/illegal-e-waste-exposed, last accessed 14/ 07/2010. In July 2009 containers from UK loaded with all sorts of wastes, including e-waste, found their way into Brazil.

9 Junior Scholastic Magazine, April 13, 2009, Vol. 111, No. 16.

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burgeoning new trade and illegal importation of variety of electrical and electronic equipment. Consequently, many brokers and businesses have emerged to channel used equipment from developed countries to Nigeria.10

In addition, in 2007 Basel Action Network (BAN), in conjunction with Basel Convention Regional Coordinating Centre (BCRCC), released the result of the research it conducted in Nigeria. The result revealed that about 500 containers of used electrical/ electronic equipment enter Nigeria every month. Each container was said to container about 800,000 computers of which more than 50% were used computers. Of these 25-75 % of the used computers were completely junks and were eventually burnt or dumped carelessly.11

Defenders of the trade in used electronics argue that extraction of metals from virgin mining such as hard-rock mining of copper, silver, gold and other materials extracted from electronics is considered far more environmentally damaging than the recycling of electronic materials. They further argued that repair and reuse of computers and televisions has become a "lost art" in wealthier nations, and that refurbishing has traditionally been a path to development in developing countries. To this end, countries like South Korea, Taiwan, and southern China have excelled in finding "retained value" in used goods, and in some cases have set up billion-dollar industries in refurbishing used ink cartridges, single-use cameras, and working CRTs.12 Refurbishing has traditionally been a threat to established manufacturing, and simple protectionism explains some criticism of the trade. To this end, proponents of the trade argue that thousands of men, women, and children are employed in reuse, refurbishing, repair, and remanufacturing, sustainable industries in decline in developed countries. Thus, denying developing nation’s access to used electronics, they further argued, deny them not only affordable products and internet access but also means of employment and income. Opponents of surplus electronics exports however argue that lower environmental and labour standards, cheap labour, and the relatively high value of recovered raw materials leads to a

10 Alex Emeje: “FG Raises Alarm Over Effects of Imported Appliance,” Daily

Independence Newspaper, Friday, 7th December, 2007, Vol. 3 No. 1371, C.2. 11

Ibid. 12 Guiyu in the Shantou region of China, and Delhi and Bangalore in India, have

electronic waste processing areas.

25

transfer of pollution-generating activities.13 In China, Malaysia, India, Kenya, Nigeria, and various African countries, electronic waste is being sent to these countries for processing, sometimes illegally. Many surplus laptops are routed to developing nations as "dumping grounds for e-waste", especially from the United States of America. Because the United States has not ratified the Basel Convention or its Ban Amendment, and has no domestic laws forbidding the export of toxic waste, the Basel Action Network estimates that about 80% of the electronic waste directed to recycling in the United States does not get recycled there at all, but is put on container ships and sent to countries such as China.14 The Institute for Scrap Recycling Industries, and the World Reuse, Repair and Recycling Association argued that whatever is the figure the truth of the matter is that large consignments of obsolete electronic equipment are shipped to developing countries under various guise by United States and other western countries. Infact, the ‘e-waste’ has become the most rapidly growing waste problem in the world today.15 2.0. Why is e-waste an environmental and health problem? Electronic waste by its very nature causes serious health and pollution problems. This is because electronic equipment contains some very serious contaminants such as lead, cadmium, beryllium and brominated flame-retardants. If treated properly, electronic waste is a valuable source of secondary raw materials. For instance, “White box computers”16 which are often assembled by small scale manufacturers utilizing refurbished components of electronic materials. However, if not treated properly, electronic waste is a major source of toxins and carcinogens. Rapid technology change, low initial cost and with planned obsolescence have resulted in a fast-growing surplus of electronic waste around the globe.

Technical solutions are available, but in most cases a legal framework, a collection system, logistics, and other services need to be implemented before a technical solution can be applied. In the United States, an estimated 70% of heavy metals in landfills come from discarded electronics, while electronic waste

13 Such as burning of copper wire. 14 This figure is however being disputed as an exaggeration by the EPA. 15 It is estimated that, weight for weight, the average computer chip does more

harm to the environment than a car. For instance, to make a 2-gram memory chip, over 1,400 grams of materials and fossil fuel are needed.

16 Off-brand or no name computers.

26

represents only 2% of America's trash in landfills.17 Discarded electronics represented 5 to 6 times as much weight as recycled electronics. The Consumer Electronics Association says that U.S. households spend an average of $1,400 annually on an average of 24 electronic items, leading to speculations of millions of tons of valuable metals sitting in desk drawers.18 Surplus electronics have extremely high cost differentials. A single repairable laptop can be worth thousands of Naira, while an imploded cathode ray tube (CRT) is extremely difficult and expensive to recycle. This has created a difficult free-market economy. Large quantities of used electronics are typically sold to countries with very high repair capability and high raw material demand, which can result in high accumulations of residue in poor areas without strong environmental laws.

Trade in electronic waste is controlled by the Basel Convention.19 However, the Basel Convention specifically exempts repair and refurbishment of used electronics in its Annex IX. But the Parties to the Convention had considered the question of whether exports of hazardous used electronic equipment for repair or refurbishment are considered as hazardous waste, subject to import and export controls under that Convention. In the Guidance document produced on that subject, that question was left up to the Parties to the Convention. However, in the working group all the Parties present believed that when material is untested, or contains hazardous parts that would need to be replaced as part of the repair process, then the Convention should apply.

Viewed from whichever way, electronic waste contains toxic substances such as lead element, mercury element, and cadmium. Carcinogenic substances in electronic waste may include polychlorinated biphenyls (PCBs). Capacitors, transformers, and wires insulated with or components coated with polyvinyl chloride (PVC), manufactured before 1977, often

17 Silicon Valley Toxic Corporation: “Poison PCs/Toxic TVs Executive

Summary”, http://www.svtc.org/cleancc/pubs/pctvexecsum.htm, last accessed 29/07/2010.

18 LaMonica, Martin: “Got a gadget gathering dust?” http://news.cnet.com, access date 29/07/2010. U.S. National Safety Council estimates that 75% of all personal computers ever sold are now gathering dust as surplus electronics. While some recycle, 7% of cell phone owners still throw away their old cell phones.

19 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989.

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contain dangerous amounts of PCBs.20 Up to 38 separate chemical elements are incorporated into electronic waste items. Substances found in large quantities include epoxy and electronics resins, fiberglass, PCBs, PVC, thermosetting plastics, lead, tin, copper, silicon, beryllium, carbon, iron and aluminum. While elements found in small amounts include cadmium, mercury and thallium. Elements found in trace amounts include americium, antimony, arsenic, barium, bismuth, boron, cobalt, europium, gallium, germanium, gold, indium, lithium, manganese, nickel, niobium, palladium, platinum, rhodium, ruthenium, selenium, silver, tantalum, terbium, thorium, titanium, vanadium, and yttrium.21 Almost all electronics contain lead and tin (as solder) and copper (as wire and printed circuit board tracks), though the use of lead-free solder is now spreading rapidly. Again, many of the plastics used in electronic equipment contain flame retardants. These are generally halogens added to the plastic resin, making the plastics difficult to recycle. Due to the flame retardants being additives, they easily leach off the material in hot weather, which is a problem because when disposed of, electronic waste is generally left outside.22

Furthermore, uncontrolled burning, disassembly and disposal can cause a variety of environmental problems such as groundwater contamination, atmospheric pollution, or even water pollution either by immediate discharge or due to surface runoff (especially near coastal areas). Hazards also associated with electronic waste include health problems such as occupational safety and health effects among those directly involved due to the methods of processing the waste. Thousands of men, women, and children are employed in highly polluting, primitive recycling technologies, extracting the metals, toners, and plastics from computers and other electronic waste. Even in developed countries disposal of e-waste involves significant risk to workers and communities and great care is taken to avoid unsafe exposure in recycling operations and leaching of materials such as heavy metals from landfills and incinerator ashes. It is as a result of

20 Karlyn Black Kaley et al: “Health Concerns and Environmental Issues with

PVC-Containing Building Materials in Green Buildings,” http://www.ciwmb.ca.gov/publications/GreenBuilding/43106016.pdf, accessed 03/08/2010.

21 Chemical fact sheet: Thallium (Spectrum Laboratories), available at http://www.speclab.com/elements/thallium.htm, last accessed 03/08/2010.

22 The flame retardants leach into the soil and recorded levels were 93 times higher than soil with no contact with electronic waste.

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these and other hazards associated with hazardous substances that there is need to protect the environment from the adverse effects of e-waste.

In addition, developing countries utilize methods that are more harmful and more wasteful. In most developing countries, including Nigeria, electronic waste processing usually first involves dismantling the equipment into various parts- metal frames, power supplies, circuit boards and plastics, which are separated often by hand. Alternatively materials are shredded and sophisticated expensive equipment separates the various metal and plastic fractions, which then are sold to various smelters and plastic recyclers. However, an expedient and prevalent method is simply to toss equipment onto an open fire, in order to melt plastics and to burn away unvaluable metals. This releases carcinogens and neurotoxins into the air, contributing to an acrid, lingering smog. These noxious fumes include dioxins and furans. Bonfire refuse can be disposed of quickly into drainage ditches or waterways feeding the ocean or local water supplies. This has deleterious effect on the water bodies. 3.0. Trend options in e-waste management. In the developed and some of the developing economies trend options in managing e-waste is through legislation.23 In the 1990s some European countries banned the disposal of electronic waste in landfills. This created an electronic waste processing industry in Europe. In Switzerland, the first electronic waste recycling system was implemented in 1991, beginning with collection of old refrigerators. Over the years, all other electric and electronic devices were gradually added to the system. Legislation followed in 1998, and since January 2005 it has been possible to return all electronic waste to the sales points and other collection points free of charge. There are two established producer responsibility organizations: SWICO, mainly handling information, communication, and organization technology, and SENS, mainly responsible for electrical appliances. The total amount of recycled electronic waste exceeds 10kg per capita per year.24

23 The basis for this is that legislation is a legal framework which may

recommend other options such as: recycling, reuse, recover, repair, reduce, donation, take back, exchange and consumer awareness. To his end, for purposes of this work relevant international and domestic instruments were reviewed.

24 See http://www.umwelt-schweiz.ch/buwal/eng/fachgebiete/fg_abfall/abfallwe gwe iser/eschrott/index.html, last accessed 15/08/2010.

29

The European Union implemented a similar system in February 2003, under the Waste Electrical and Electronic Equipment Directive (WEEE Directive, 2002/96/EC).25 The WEEE Directive has now been transposed in national laws in all member countries of the European Union. It was designed to make equipment manufacturers financially or physically responsible for their equipment at the end of its life, under a policy known as extended producer responsibility (EPR) "Users of electrical and electronic equipment from private households should have the possibility of returning WEEE at least free of charge", and manufacturers must dispose of it in an environmentally friendly manner, by ecological disposal, reuse, or refurbishment. EPR was seen as a useful policy as it internalized the end-of-life costs and provided a competitive incentive for companies to design equipment with fewer costs and liabilities when it reached its end of life.26 Under the directive, by the end of 2006 (with one or two years' delay for the new EU members), every country must recycle at least 4kg of electronic waste per capita per year. Furthermore, the Directive should “decrease e-waste and e-waste exports.” In December 2008 a draft revision to the Directive proposed a market-based goal of 65%, which is 22 kg per capita in the case of the United Kingdom.27 However, the application of the WEEE Directive has been criticized for implementing the EPR concept in a collective manner, and thereby losing the competitive incentive of individual manufacturers to be rewarded for their green design.28

Other efforts of the EU in curbing problems of e- waste include: The Directive on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (2002/95/EC), Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment, commonly referred to as the Restriction of Hazardous Substances Directive (RoHS Directive), was also adopted in February 2003 by the European Union. The RoHS Directive took effect on July 1, 2006, and is required to be enforced and become law in each member

25 http://eur-lex.europa.eu/LexUriServ/LexUriServ, accessed 15/08/2010. 26 Since August 13, 2005, electronics manufacturers became financially

responsible for compliance to the WEEE Directive. 27 A decision on the proposed revisions could result in a new WEEE Directive by

2010. 28 Greenpeace International: “Lost In Transposition?” Greenpeace Report dated

27/09/2006 http://www.greenpeace.org/international/press/reports/lost-in-transposition, accessed 18/08/2010.

30

state. This directive restricts the use of six hazardous materials in the manufacture of various types of electronic and electrical equipment.29

In the United States, the Congress considers a number of electronic waste bills, including the National Computer Recycling Act introduced by Congressman Mike Thompson (D-CA). The main federal law governing solid waste is the Resource Conservation and Recovery Act of 1976. It covers only CRTs, though state regulations may differ. There are also separate laws concerning battery disposal. Several trade organizations in the USA, including the Consumer Electronics Association, are lobbying for the implementation of comprehensive federal laws. On March 25, 2009, the House Science and Technology Committee approved funding for research on reducing electronic waste and mitigating environmental impact, regarded by sponsor Ralph Hall (R- TX).30

Again, during Earth Day, April 22, 2009, two bills were passed by the House of Representatives: H.R. 1580 Electronic Device Recycling Research and Development Act, introduced by Rep. Bart Gordon on March 18, 2009, and H.R. 957 Green Energy Education Act, introduced by Rep. Michael McCaul (R-TX.) H.R.1580. The H.R. 1580 bill require the Administration of Environmental Protection Agency (EPA) to give merit-based grants to consortia of universities, government labs and private industries to conduct research with the purpose of finding new approaches to recycling and reduction of hazardous materials in electronic devices and to "contribute to the professional development of scientists, engineers, and technicians in the field of electronic device manufacturing, design, refurnishing, and recycling." The bill will require the recipients of the grants to report every two years to Congress about the progress of their research, gaps in the advancement, risks and regulatory barriers that might hinder their progress. The Congressional Budget Office estimates that to put the bill in effect "would cost $10 million in 2010 and $80 million over the 2010-2014 period." The other bill passed, H.R. 957, authorizes the Department of Energy in partnership with the National Science Foundation to provide grants to Institutions of higher education to promote education and training for Engineers and Architects “in high energy and

29 “Legislating E-Waste Management: Progress From Various Countries",

http://www.ewaste.cn/others/inter1-new.htm, last accessed 18/08/2010. 30 This was the first federal bill to address electronic waste directly.

31

high-performance building design." 31 In addition to the Federal efforts, some states in the US in

recent years have developed more stringent policies on e-waste. In 2001, State of Arkansas enacted the Arkansas Computer and Electronic Solid Waste Management Act, which requires that state agencies manage and sell surplus computer equipment, establishes a computer and electronics recycling fund, and authorizes the Department of Environmental Quality to regulate and/or ban the disposal of computer and electronic equipment in Arkansas landfills.32

California State implemented a broader waste ban, with advance recovery fee funding, two years later. Electronic waste in California may neither be disposed of in a landfill nor be exported overseas. The 2003 Electronic Waste Recycling Act in California introduced an Electronic Waste Recycling Fee on all new monitors and televisions sold to cover the cost of recycling. The fee ranges from six to ten dollars. California went from only a handful of recyclers to over 60 within the state and over 600 collection sites. The amount of the fee depends on the size of the monitor; it was adjusted on July 1, 2005 in order to match the real cost of recycling. Cell phones are "considered hazardous waste" in California; many chemicals in cell phones leach from landfills into the groundwater system.33

State of Colorado legislation requires education programmes that address its electronic waste problem. In 2004, Maine passed Maine Public Law 661, An Act to Protect Public Health and the Environment by providing for a System of Shared Responsibility for the Safe Collection and Recycling of Electronic Waste. It necessitated that after 2006; computer manufacturers take responsibility for handling and recycling computer monitors, CRT, and pay the handling costs as well.34 Minnesota State enacted a law making vendors responsible for the disposal of their

31 "H.R. 1580: Electronic Waste Research and Development Act." Legislative

Digest. Retrieved on 28/08/2010. 32 "Arkansas Computer and Electronic Solid Waste Management Act".

http://www.arkleg.state.ar.us/ftproot/acts/2001/htm/act1410.pdf, accessed 28/08/2010.

33 Nate Anderson: "California to electronics industry: No toxins for you!" http://arstechnica.com/news.ars/post/20060224-6254.html, last accessed 28/08 /2010.

34 Massachusetts was the first of the United States to make it illegal to dispose of CRTs in landfills in April 2000, most similar to the European disposal bans of the 1990s.

32

branded electronics. Minnesota legislation also outlaws the dumping of cathode ray tubes in landfills. A law in the state of Washington took effect on January 1, 2009, requiring manufacturers of electronic goods to pay for recycling, and establishing a state-wide network of collection points.35

In Canada, a number of Canadian provinces have implemented a broader waste ban with advance recovery fee funding on all new monitors and televisions sold to cover the cost of recycling. The fee ranges from six to ten Canadian dollars. The fee was added to the cost of purchasing new televisions, computers, and computer components in Alberta in February 2004, the first of its kind in Canada. Saskatchewan also implemented an electronics recycling fee in February 2007, followed by British Columbia in August 2007, Nova Scotia in February 2008, and Ontario in April 2009.36 A number of countries in the Asian continent have made some strides in the control of e-waste. South Korea, Japan and Taiwan require that sellers and manufacturers of electronics be responsible for recycling 75% of them.37 4.0. What options for Nigeria in e-waste management? As a result of the insidious effects of e-waste and low technological knowledge of hazardous substances in e-waste we advocate that the best option for Nigeria in managing e-waste is through the instrumentality of the Law. This can be achieved through:

(1) adopting existing international environmental instruments on the subject alongside

existing domestic Law/s, and, where necessary, (2) enacting new law on the subject to beef up her position.

(1) Adopting existing international environmental instruments on the subject alongside domestic law. Two international instruments on hazardous wastes are of interest to us. They are:

35 "E-waste laws in other states". http://www.cawrecycles.org. Last accessed on

28/08/2010. 36 Katalin Feszty: "Canada moves to WEEE compliance".

http://www.greensupplyline.com, last accessed, 25/08/2010. 37 "Legislating e-waste management: progress from various countries".

http://www.e- waste.cn/others/inter1- new.htm, last accessed 25/08/2010.

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a. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989, (hereinafter referred to as the Basel Convention) and

b. The Bamako Convention on the Ban of Imports into Africa and the Control of Trans-boundary Movement and Management of Hazardous Wastes 1991 (hereinafter referred to as the Bamako Convention).

We shall first and foremost review these laws and juxtapose them side-by-side domestic law on the subject.

With the tightening of environmental laws in developed nations in the 1970s, disposal costs for hazardous waste rose dramatically. At the same time, globalization of shipping made transboundary movement of waste more accessible, and many Less Developed Countries (LDCs) were desperate for foreign currency. Consequently, the trade in hazardous waste, particularly to LDCs, grew rapidly. One of the incidents which led to the creation of the Basel Convention was the Khian Sea waste disposal incident, in which a ship carrying incinerator ash from the city of Philadelphia in the United States after having dumped half of its load on a beach in Haiti, was forced away where it sailed for many months, changing its name several times. Unable to unload the cargo in any port, the crew was believed to have dumped much of it at sea.38

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, (the Basel Convention) is an international treaty that was designed to reduce the movements of hazardous waste between nations, and specifically to prevent transfer of hazardous waste from developed to less developed countries (LDCs). The Convention is also intended to minimize the amount and toxicity of wastes generated, to ensure their environmentally sound management as closely as possible to the source of generation, and to assist LDCs in environmentally sound management of the hazardous and other wastes they generate. The Convention was opened for signature on 22 March 1989, and entered into force on 5 May 1992. Of the 172 parties to the Convention, Afghanistan, Haiti, and the United States have signed the Convention but have not yet ratified it.39

The Convention imposes obligations on the Parties to the Convention for ensuring the environmentally sound management,

38 Greenpeace International, ibid. 39 The Convention however, does not address the movement of radioactive

waste.

34

in particular, the disposal of hazardous wastes. To this end, the Convention stipulates three main interdependent and mutually supportive goals that have to be fulfilled. They are:

(i) trans-boundary movements of wastes should be reduced to a minimum consistent with their environmentally sound management;

(ii) hazardous wastes should be treated and disposed of as close as possible to their source of generation; and

(iii) hazardous waste generation should be reduced and minimized at its source.40

The Convention contains general obligations requiring Parties, inter alia, to ensure that the trans-boundary movements of hazardous wastes are reduced to the minimum consistent with environmentally sound and efficient management. This, according to Birnie and Boyle,41 places three important and far-reaching restrictions on international trade in hazardous wastes. First, the Convention confirms the sovereign right to ban imports; either on an individual, bilateral or regional basis provided the exercise of this right to prohibit trade in waste is notified to other parties through the secretariat.42 Second, the Convention has adopted the principle of minimizing the generation of hazardous waste and promoting disposal at source. Indeed, the primary obligation is to manage the trans-boundary movement of waste in an environmentally sound manner. Thus, trans-boundary movement is permitted between parties to the Basel Convention but only in circumstances where the state of export does not have the capacity or facilities to dispose of the wastes in an environmentally sound manner itself, or unless the wastes are intended for re-cycling.43 Furthermore, recognizing the importing states’ responsibility under international law for the protection of their own environments, the Convention places on importing states’ parties an obligation of environmentally sound management.44 However, the exporting state may not under any circumstances discharge its obligation to manage the wastes in an environmentally sound manner and must permit re-import if necessary.45

40 Preamble to the Basel Convention. 41 P.W. Birne and A.E. Boyle: International Law and the Environment, 2nd edn.

(Oxford: Oxford University Press, 2002) p. 383. 42 Preamble to the Convention and Article 4 (1) (a). 43 Art. 4 (9) (a) and (b), supra. 44 Arts. 4(8) and 9 (3), Basel Convention. 45 Art. 4(10), supra.

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To enhance the application of this concept (environmentally sound management of hazardous wastes) the Convention requires the establishment of technical guidelines.46 The development and implementation of these guidelines create less hazardous waste and/or improve existing technologies with a view to eliminating the generation of hazardous wastes. In order to achieve this aim, a technical working group was established directly after the adoption of the Convention. What amounts to environmentally sound management was defined in general terms in Article 2(8). It means, “taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes.” Prior to the coming into effect of the Basel Convention in 1992, the Cairo Guidelines and Principles of Environmentally Sound Management of Hazardous Wastes of 1985, and adopted by UNEP in 1987, provides a more detailed functional definition of the term. It means, “the use of best practicable means, approval of sites and facilities, disposal plans, monitoring, public access to information and contingency planning.” 47

Third, the Convention under Articles 4 and 6 requires prior, informed and written consent of both transit and import states, in the conduct of international trade in hazardous wastes. The basis for this provision, according to Maurice Sunkin et al,48 is that a state’s sovereignty over its territory places a duty upon other states using its territory not to cause damage or interfere with other uses of the territory. To this end, Birnie and Boyle49 regard this prior consent provision as the crowning achievement of the Convention as really does international law require prior consent of other states before environmentally harmful activities may be undertaken.

In addition, under Article 4 (6), Parties to the Convention agree not to allow the export of hazardous wastes or other wastes for disposal within the area south of Latitude 60 degrees whether or not such wastes are subject to trans-boundary movement. Another far- reaching general obligation imposed by the

46 Art. 4 (8), supra. 47 P.W. Birne and A.E. Boyle, ibid, p. 384. 48 Maurice Sunkin, David M Ong and Robert Wight: Source Book on

Environmental Law (London: Cavendish Publishing Limited, 1998) p. 296. 49 P.W. Birnie and A.E. Boyle, op cit, p. 385.

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Convention are provided under Article 4(7).50 Under the Article each Party shall:

(i) prohibit all persons under its national jurisdiction from transporting or disposing of hazardous wastes or other wastes unless such persons are authorized or allowed to perform such types of operations;

(ii) require that hazardous wastes and other wastes that are to be the subject matter of a trans-boundary movement be packaged, labelled, and transported in conformity with generally accepted

and recognized international rules and standards in the field of packaging labelling and transport, and that due account is taken of relevant internationally recognized practices,

(iii) require that hazardous wastes or other wastes be accompanied by a movement document from the point at which a trans-boundary movement commences to the point of disposal.

For the purpose of the Convention, any trans-boundary movement of hazardous wastes or other wastes without notification to all states concerned (prior informed consent, PIC), or without consent of a state concerned, or consent obtained from states concerned through falsification, misrepresentation or fraud, or that does not conform in a material way with the documents, or that results in deliberate disposal of hazardous wastes or other wastes will be in contravention of the Convention and principles of international law, and be deemed to be illegal traffic.51 Thus, illegal traffic in hazardous wastes or other wastes shall be considered by Parties as criminal.52 However, a Protocol adopted in 199953 provides for a liability scheme compensation for damage resulting from trans-boundary movements of hazardous wastes. For effective implementation of the Convention States Parties to the Convention should aim towards activities for the reduction and minimization of all risks of harm caused by hazardous wastes to health and environment. Such activities should include among

50 General overview of other obligations are provided in Arts 4 (8-13), Basel

Convention. 51 Art. 9, Basel Convention. 52 Art. 4(3), supra. 53 Liability and Compensation to the Basel Hazardous Wastes Convention, 1999

(also known as Basel Protocol, 1999).

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other things: i) steps to reduce or avoid the generation of hazardous

wastes; ii) steps to ensure proper recovery of wastes; iii) steps to reduce to a minimum or eliminate the

export/import of hazardous wastes. This entails the planning of environmentally sound disposal facilities, located as close as practicable to the source of generation, and identification of the generators.

The Basel Convention did not envisage e-waste as a hazardous substance in 1989. However, during the sixth Conference of Parties to the Convention (CoP) meeting in Geneva in December, 2002 it addressed a wide number of topics, including the growing issue of ‘e-wastes’, among others. During the conference technical guidelines were adopted on disposal and recycling of ‘e-wastes’, lead-acid batteries, plastic wastes and obsolete ships. This gave birth to the Basel Ban Amendment (BAN). The Amendment prohibits the export of hazardous waste from a list of developed, mostly Organisation for Economic Co-operation and Development (OECD) countries to developing countries. The Basel BAN applies to export for any reason, including recycling.54 Increased trade in recyclable materials has led to an increase in a market for used products such as computers. This market is valued in billions of dollars. At issue is the distinction when used computers stop being a "commodity" and become a "waste". During the CoP 6 the working group Parties to the Convention believed that when material is untested, or contains hazardous parts that would need to be replaced as part of the repair process, then the Convention will apply. Computers as noted earlier have a high rate of obsolescence, contain cadmium, lead and mercury and when they are no longer required are dumped, recycled or disassembled to recover precious metals such as gold and copper, the rest are discarded as waste.55 Therefore, by analogy, if it can be proven that computer contains some hazardous substances the texts of the Basel Convention should apply. This is in line with the precautionary principle. The core of the principle is reflected in Principle 15 of the Rio Declaration 1992, which provides that: “where there are threats of serious or irreversible damage, lack of full scientific

54 http://en.wikipedia.org. Accessed 29/08/2010. 55 United Nations Environment Programme: Environmental Law Training

Manual (Nairobi: UNEP, 1997) p.46.

38

certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” An interpretation of this Principle 15 means that activities and substances which may be harmful to the environment should be regulated, and possibly prohibited, even if no conclusive or overwhelming evidence is available as to the harm or likely harm they may cause to the environment. This position is supported by the Bamako Convention in its Article 4(3) (f). It requires parties to the Convention to strive to adopt and implement “the preventive, precautionary approach to pollution without waiting for scientific proof …” Thus, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. We therefore hold that we must not wait for proof of harmful effects before taking action on e-waste, since its damage to the environment can be irreversible or remediable only at considerable expense and over a long period. Although the Basel Convention by its various provisions laid down global standards for the control of trans-boundary movements of hazardous wastes and other wastes, this notwithstanding, in the words of Maurice Sunkin, et al,56 the Convention nevertheless leaves open the possibility of national, bilateral or regional treaties incorporating stricter obligations, even amounting to total prohibitions against the imports of hazardous wastes. This assertion may be unconnected to the strong protestations made by developing countries Party to the Convention. Perhaps, this was the impetus needed by African countries that gave birth to the Bamako Convention on the Ban of Imports into Africa and the Control of Trans-boundary Movement and Management of Hazardous Wastes, Bamako Convention, to which we now turn. Although, African countries are parties to the Basel Convention they remained conscious of their particularly vulnerable situation since the continent had become a dumpsite for developed countries where most of the hazardous wastes are produced. They were therefore conscious of the need for control measures, stricter than the Basel Convention, to protect the lives of Africans and their environment taking advantage of Article 11 of the Basel Convention, which provides as follows:

Nothing in this Convention shall prevent a Party from imposing additional requirements that are consistent with the provisions of this Convention, and are in accordance with the rules of

56 Maurice Sunkin, et al, op. cit, p. 297.

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international law, in order better to protect human health and the environment.

The Bamako Convention is a treaty of African nations prohibiting the import of any hazardous (including radioactive) waste. The Convention was negotiated by twelve nations of the Organization of African Unity57 at Bamako, Mali in January, 1991, and came into force on January 30, 1998. It uses a format and language similar to that of the Basel Convention, but is much stronger in prohibiting all imports of hazardous waste. Additionally, it does not make exceptions on certain hazardous wastes (like those for radioactive materials) made by the Basel Convention.

Impetus for the Bamako Convention arose from the failure of the Basel Convention to prohibit trade on hazardous waste to less developed countries. This was from the realization that many developed nations were exporting toxic wastes to Africa. This impression was strengthened by several prominent cases. One important case, which occurred in 1988, concerned the importation into Nigeria of 18,000 barrels of hazardous waste from the Italian companies Ecomar and Jelly Wax, which had agreed to pay local farmer Sunday Nana $100 per month for storage. The barrels, found in storage in the port of Lagos, contained toxic waste including polychlorinated biphenyls (PCB) and their eventual shipment back to Italy led to protests closing three Italian ports.

The objective of the Bamako Convention is to protect the human health of the African population and the environment against the adverse effects which may result from the generation of hazardous wastes to and within Africa.58 Under the Convention the scope of hazardous wastes are as contained in Article 2. These include:

(i) wastes that belong to any category contained in Annex 1 of the Convention;

(ii) wastes not covered by the Annex but are defined as or considered to be hazardous waste by domestic legislation of the party of import, export or transit;

(iii) wastes that posses any of the characteristics contained in Annex11 of the Convention; and

(iv) hazardous substances which have been banned, cancelled or refused registration by government regulatory action for health or environmental reasons or voluntarily withdrawn

57 As it was then called, now known as African Union. 58 The Preamble to the Bamako Convention.

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from registration in the country of manufacture for the same reason.

It should be noted that radioactive wastes that are subject to any international control system are covered by the Convention.59 However, if wastes are derived from normal operation of a ship such wastes are not covered by the Convention.60 Article 4 spells out general obligations to the Parties under the Convention. Parties shall:

(i) take appropriate legal, administrative and other measures within the area under their jurisdiction to prohibit the import of all hazardous wastes for any reason into Africa from non- contracting Parties. Such import shall be deemed illegal and a criminal act.

(ii) prohibit dumping or incineration of the wastes at seabed and sub-seabed and not even Contracting Parties shall engage in such, whether in internal waters, waterways, territorial seas, exclusive economic zone or high seas and where these happen, they shall be deemed illegal.

(iii) ensure that generators of wastes submit to the secretariat reports in respect of the generation and impose strict, unlimited, joint and several liability on the generators and as well ensure that the generation is reduced to a minimum taking into account social, economic and technological aspects.

(iv) ensure the availability of adequate treatment and disposal facilities for the Environmentally Sound Management of the wastes and that within their jurisdiction persons involved in the management of the wastes take necessary steps to prevent pollution arising from the wastes and where pollution occurs to ensure the minimization of the consequences thereof.

In addition to the above each Party shall strive to adopt and implement the preventive precautionary approach to pollution problems and to this end shall promote Clean Production Method. This involves production or industrial systems that avoid or eliminate the generation of wastes.61

Arising from our discussions on Basel and Bamako Conventions, the following question arises: how can Nigeria apply the provisions of these international environmental instruments to prohibit or control incident of e-waste dumping in

59 This was an improvement to the Basel Convention. 60 Art 2(1-3), Bamako Convention. 61 Art 4(1), (2), (3) a-h, Bamako Convention

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the country and in the process manage e-waste disposal? There are a number of options. The first is to fix a life span in terms of used electronic products (especially computers and cell phone) being imported into the country.62 Second, any electronic product beyond the fixed life span should be classified as e-waste and therefore be regarded as hazardous. Both the Basel and Bamako Conventions are helpful in this respect. Under the Bamako Convention, the scope of a substance as waste, especially hazardous waste, is as provided under its Article 2. This constitutes no problem for implementation as its provisions are very clear.

Under the Basel Convention however, a substance will fall under its scope of control if it is within the category of wastes listed in Annex I, and it does exhibit one of the hazardous characteristics contained in Annex III.63 However, even where the substance is not listed or classified under the Basel Convention, there is another way under which a substance may fall within the scope of a waste under the Convention, and therefore be subject to domestic legislative control. Where a substance is defined as or considered to be a hazardous waste under the laws of the exporting country, or the importing country, or that of the countries of transit, such a substance will be regulated under the Basel Convention. Here the Harmful Waste (Special Criminal Provision) Act64 (HWSCPA) is helpful.65 The Act defines hazardous waste as:

Any injurious, poisonous, toxic or noxious substance...which can subject any person to the risk of death, fatal injury or incurable impairment of physical and mental health…66

Again, the National Environmental (Sanitation and Wastes Control) Regulations, 2009 classified types of hazardous waste in its Schedule XIII as:

(a) Waste that exhibits any of the following hazardous properties: explosive; flammable liquids and solids;

62 This has been done in respect of used cars (“Tokunbo” cars). There is a ban in

importation of used cars more than ten years old. 63 Such as being explosive, flammable, toxic, or corrosive 64 Cap H.1 Laws of the Federal Republic of Nigeria, 2004. 65 See also the provisions of s. 27 of the National Environmental Standards and

Regulations Enforcement Agency (Establishment) Act, (NESREA) 2007 that prohibits the discharging of harmful quantities of any hazardous substance into the air or upon land and the waters of Nigeria or the adjoining shorelines.

66 S. 15, HWSCP, Act.

42

poisonous; toxic; ecotoxic; and infectious.67 (b) End-of-life waste of household electrical and electronic

appliances or residues arising from the incineration of the same.68

What these mean is that not minding that neither the Basel nor the Bamako Conventions specifically classified e-waste as a hazardous substance once any substance exhibits any of the characteristics of being injurious, poisonous, toxic or noxious and can cause death, fatal injury or any form of impairment to persons,69 or explosive, flammable, poisonous, toxic or ecotoxic,70 such a substance should be classified as hazardous and a ban imposed on it adopting the provisions of both the Basel Convention and the Bamako Convention to control its trans-boundary movement. In addition, there are stringent requirements under both Conventions for notice, prior informed consent, labeling and tracking of movement of the wastes across international boundaries.

Furthermore, the Basel Convention in Article 4(3) states that illegal hazardous waste traffic is criminal but contains no enforcement provisions. According to Article 12 of the Basel Convention, “Parties are directed to adopt a protocol that establishes liability rules and procedures that are appropriate for damage that comes from the movement of hazardous waste across borders.” The Bamako Convention is more explicit. Parties to the Convention should “take appropriate legal, administrative and other measures within the area under their jurisdiction to prohibit the import of all hazardous wastes for any reason into Africa from non- contracting Parties. Such import shall be deemed illegal and a criminal act.”71

Fortunately, in Nigeria, two of her domestic laws have criminalized dealing in hazardous substances. For instance, the Harmful Wastes (Special Criminal Provisions) Act (HWSCP Act), 198872 and the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, (NESREA) 2007.73 Our 67 Item (a) Schedule XIII to the National Environmental (Sanitation and Wastes

Control) Regulations, 2009. 68 Item (c), supra. 69 As per the provisions of s. 15 of the HWSCP Act. 70 As per the provisions of item (a) Schedule XIII to the National Environmental

(Sanitation and Wastes Control) Regulations, 2009. 71 Article 4(1), Bamako Convention. 72 S. 1. 73 S. 27, NESREA Act and two of its Regulations (the National Environmental

43

discussions on the applicability of these laws are however dwelt on the provisions of the HWSCP Act.74

The HWSCP Act is an Act to prohibit the carrying, depositing and dumping of harmful waste on any land, territorial waters of Nigeria and matters relating thereto. Under this Act, it is an offence for any person, without lawful authority, to carry, deposit, dump or causes to be carried, deposited or dumped, transports or causes to be transported, imports or causes to import, negotiate for the purpose of importing any harmful waste, sells, offers for sale, buys or otherwise deals in any harmful waste.75 A person shall be deemed to have committed the offence if he actually does the act, enables, aids, counsels or procures any person to commit the crime.76 It is immaterial, in the case of counselling, that the act committed is the same as the one counselled or a different one, or is committed in the way counselled or in a different way, provided that in either case, the facts constituting probable consequence of carrying out the counsel.77 Such a person shall, on conviction be liable to the same punishment prescribed in the Act.78 The punishment prescribed under the Act is imprisonment for life, and in addition:

(a) any carrier, including aircraft, vehicle container and any other thing whatsoever used in the transportation or importation of the harmful waste, and

(b) any land on which harmful waste was deposited or dumped, shall be forfeited and vest in the Federal Government without any further assurance.79

(Sanitation and Wastes Control) Regulations, 2009 and the National Environmental (Electrical/Electronic Sector) Regulations, 2010).

74 The law is solely on harmful or hazardous substance and it is more encompassing in its provisions than the NESREA Act that has only one s. that deals with the subject matter.

75 S. 1(2) HWSCP Act. This s. is more comprehensive and more strigent than the provisions of s. 27 of NESREA Act.

76 S. 2 (1), HWSCP Act. 77 S. 4, supra. 78 S. 2(2), (3), supra. 79

S. 6, supra. This punishment is more stringent, and preferable, than punishment provided under s. 27 (2)–(3) of the NESREA Act. For an individual the punishment is a fine of =N=1,000,000 or imprisonment for 5 years. Where the offender is a body corporate every person who at the time the offence was committed or was in charge of the body corporate shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly as if he committed the offence in his personal capacity. However, where such a person can show that the offence was

44

Where the offence is committed by a body corporate and it is proved that it was committed with the consent or connivance of or is attributable to any neglect on the part of a director, manager, secretary or other similar officer or by any person purporting to act in the same capacity, he, as well as the body corporate, shall be guilty of the crime and shall be liable to be proceeded against and punished accordingly.80

From the foregoing, electronic equipment, especially computer and mobile devices, by their very nature once not put to appropriate use or discarded inappropriately can constitute a hazardous substance. Nigeria can therefore apply her domestic law on the subject to control importation, dumping or disposal of such equipment into the country. Presently, the National Environmental Standards and Regulations Enforcement Agency (NESREA) been established. The Agency is to enforce compliance with provisions of international agreements, protocols, conventions and treaties on environment, including hazardous wastes, etc, and such other environmental agreements as may from time to time come into force.81 It is also empowered to enforce compliance with regulations on importation, exportation, production, distribution, storage, sale, use, handling and disposal of hazardous chemicals and waste….82 The Agency is therefore well positioned to handle issue of e-waste by enforcing both the international agreements and applying the domestic laws to rid the country of e-waste incidents.

It is therefore believed that where these laws, especially the HWSCP Act, are well positioned and if applied strictly, indiscriminate dumping of used electrical and electronic equipment in the country will be curtailed. However, one limitation of these laws is that it only adopts a react-and-cure approach and if and when applied, it is targeted towards just controlling the importation and dumping of e-waste in Nigeria, The Acts do not prescribe means and methods of e-waste management. This lacuna is addressed by the second option discussed below.

(2) Legislating against E-Waste. The second option for Nigeria in managing e-waste is an outright legislation on e-waste management. There is currently no legislation in Nigeria that is targeted towards the management and

committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence.

80 S. 7, HWSCP Act 81 S. 7 (d),HWSCP Act 82 S. 7 (g), supra.

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control of e-waste. The nearest is the omnibus Harmful Waste (Special Criminal Provisions) Act, 1988 discussed above. This Act does not target e-waste per se but is applied generally to any substance that qualifies as a harmful or hazardous substance pursuant to the provisions of its section 15.83 To this end we advocate that a legislation whose mischief is to manage and control e-waste be enacted. Such Law should adopt the anticipate-and-prevent approach and should contain provisions that should:

(a) Ban the disposal of electrical and electronic equipment in non-designated areas, especially landfills.

(b) Ban the importation of electrical and electronic equipment that are not above certain fixed life span.

(c) Create collection points for e-waste. This can be achieved by establishing Electronic Waste Collection Centres (EWCC). The centre shall handle information, communication and organisation technology as they affect electrical and electronic equipment.

(d) Make equipment manufacturers financially or physically responsible for their equipment at the end of its life, under a policy known as extended producer responsibility (EPR). The extended producer responsibility will internalized the end-of-life costs and provide a competitive incentive for companies to design equipment with fewer costs and liabilities when it reached its end of life, thus reducing the speed under which such equipment become obsolete and discarded.

(e) Make users of electrical and electronic equipment from private households have the possibility of returning waste electrical and electronic equipment free of charge to manufacturers. In this respect manufacturers of electrical and electronic equipment shall be mandated to dispose of e-waste in an environmentally friendly manner, by ecological disposal, reuse, or refurbishment. In addition, sellers and manufacturers of electronics should be responsible for recycling 75% of them.

(f) Compel manufacturers of electronic goods to pay for recycling, and establish a nation-wide network of collection points, in collaboration with the Electronic Waste Collection Centres (EWCC).

(g) Mandate computer manufacturers to take responsibility for handling and recycling computer monitors, and pay the handling costs as well.

(h) Some have argued84 that the reusables (working and repairable electronics) and secondary scrap (copper, steel, plastic, etc.) to be "commodities", these form loads of

83

The position is not made better by the provisions of the NESREA Act. 84 People like Morgan et al , ibid.

46

surplus electronic equipment that are frequently commingled. Because surplus electronic equipment have extremely high cost differentials, a single repairable laptop can be worth thousands of Naira. To this end, an e-waste processing industry should be created by the new Law.85 This may have some multiplier effect:

i) Reduction in poor accumulation of residue electrical and electronic equipment,

ii) Reduction in unsafe disposal of discarded electrical and electronic equipment, and

iii) Creation of job opportunities.

5.0. Conclusion. From all indications, electrical and electronic equipment are comparable to fire, “a good servant but a bad master.” Despite the fact that we all need the various electrical and electronic equipment, in our homes and offices, it should be noted that because of rapid technology change, low initial cost, and with planned obsolescence there is a fast-growing surplus of electronic waste around the globe creating e-waste. As a result of increased regulation of electronic waste in developed economies, resulting in high disposal cost and concern over the environmental harm which can result from toxic electronic waste disposal, often exported to developing countries, there is need to control and manage e-waste in an environmentally friendly manner.

The processing of electronic waste in developing countries, especially if processed improperly, as is often the case, causes serious health and pollution problems due to lack of containment, as do unprotected land filling (due to leaching) and incineration. Uncontrolled burning, disassembly, and disposal can also cause environmental and health problems, including occupational safety and health effects among those directly involved, due to the methods of processing the waste. Thousands of men, women, and children are employed in highly polluting, primitive recycling technologies, extracting the metals, toners, and plastics from computers and other electronic waste, in many cases not knowing the health hazards they are exposed to.

It is in the light of the foregoing that we strongly advocate effective and efficient management and control system through far

85A number of countries such as Norway, Sweden, Denmark, Netherlands,

Belgium, United Kingdom, Ireland, Luxembourg, France, Portugal, Spain, Switzerland, Austria, Slovenia, Malta, Finland, Germany, Czech Republic, Estonia, Latvia, Lithuania, Poland, Slovakia, Romania, Greece, Cyprus, Hungary, Italy, South Korea, Japan, Taiwan, and United States enforce e-waste recycling.

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reaching legislation. Those who are manufacturers of electrical and electronic equipment, knowing the health hazards and environmental problems posed by the equipment, have taken steps to curtail and control their environmental impacts within their environment through legislation, leaving the developing countries, and often destinations of e-waste disposal, to face the environmental hazards from such disposal. To this end, Nigeria, and indeed all developing economies, must as a matter of urgency, take adequate legislative steps to control and manage electronic waste within its jurisdiction in order to avert the likely environmental disaster associated with it.

48

LEGAL FRAMEWORK FOR NIGERIA’S INVESTORS PROTECTION FUND ∗∗∗∗

Abstract

The activities of capital market operators sometimes endanger the interests of investors. False trading, market manipulation, misrepresentation and negligence by dealers in companies’ securities often occasion loss to investors. Investors are sometimes induced to purchase shares of ailing and failing companies through manipulations and misrepresentations by dealers in companies’ securities. Many have also lost their investments to negligence of dealing firms. Often, the pecuniary loss investors suffer in the event of corporate fraud or collapse is hardly redressed under the traditional remedies afforded by law of contract, law of tort or criminal law. At such times, they are disoriented, and their confidence in the capital market diminishes greatly. In an attempt to respond to the activities in the capital market which potentially or actually challenge the legitimate interests of investors, the Investments and Securities Act provides, inter alia, for the establishment of an Investors Protection Fund. This paper examines the statutory provisions regulating the establishment and operations of the Fund with a view to determining the extent of protection it affords an investor. It expresses some concerns over the workability of the Fund as presently constituted and proffers suggestions calculated to make it an effective restorative scheme.

1. Introduction The instrumentality of a company as a vehicle for economic enhancement of persons who invest their funds in return for dividends without necessarily being encumbered with the responsibility of managing the affairs of the company has made companies attractive. When the going is good, the investor receives his dividends as and when due, and not much attention is given to whether or not those entrusted with the investor’s funds have operated within the ambit of the law. However, when the going gets rough, and desired returns on investment are not obtained, or in the worst case, the company becomes insolvent, then the activities of those charged with the affairs of the affected

∗ Edith O. Nwosu, LL.B, LL.M, Ph.D (Nig), BL, Senior Lecturer, Faculty of

Law, University of Nigeria, Enugu Campus; and Chibueze Ngozi, LL.B (Nig), BL, presently practises at the law firm of Adepetun Caxton-Martins Agbor & Segun, Lagos.

49

company become subjected to probe in order to determine what went wrong and who is to be held responsible. At this point, the aggrieved investor looks to the law for remedy, and the relevant companies’ statutes in Nigeria are replete with provisions which are intended to protect investors against corporate irregularities, maladministration and fraud.1 However, especially as it relates to capital market investments, a most significant statutory scheme intended to serve as buffer to investors who suffer pecuniary loss is the investor protection fund (“the Fund”). The Fund originated as part of the recommendations of the Panel on the Review of the Nigerian Capital Market.2 The Panel was established to review the operations of the capital market, restructure it, remove systemic bottlenecks to investments and make it attractive to investors. It recommended, inter alia, the repeal of the Securities and Exchange (SEC) Act of 1988,3the establishment of a new apex regulatory agency to be known as the Investment and Securities Commission to replace SEC,4 the promulgation of an all embracing Investment Services Decree and the establishment of an investor protection fund.5 The Panel submitted its report in 1986 with a draft Investment Services Decree modeled on the U. K’s Financial Services Act of 1986. Most of the Panel’s recommendations, including that on investors protection fund, were adopted by the federal government in formulating the provisions of the Investment and Securities Act (ISA) No. 45 of 1999.6 Although, it has always been the custom of stock exchanges to maintain compensation scheme to serve the 1 For the examples of provisions on investor protection, see Companies and

Allied Matters Act (CAMA), Cap. C20, Laws of the Federation of Nigeria (LFN) 2004 – ss. 142 (right of a shareholder to apply to the court for cancellation of variation of class right); ss. 300–313 (minority protection); ss. 314–315 (investigative powers of the Corporate Affair Commission); s. 408e) (winding up of a company on the ground that it is just and equitable). See also the Investments and Securities Act (ISA) 2007 – ss. 67–96 (regulations on prospectuses); ss. 105–110 (prohibition of false trading and market manipulation); ss. 111–116 (prohibition of insider trading); ss. 130 and 150 (rights of a dissenting shareholder or dissenting offeree in a merger or take-over activity, as the case may be); s. 198 (investor protection fund).

2 The panel is popularly referred to as the “Odife Panel”, after the name of its chairman, Dennis Odife.

3 See Executive Summary of the Report of the Panel on the Review of the Nigerian Capital Market, p. 5.

4 Ibid., at p. 13. 5 Ibid., at p. 12. 6 Now repealed by s. 314 (1) Investments and Securities Act (ISA), 2007.

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interests of investors who suffer loss as a result of default of a member, making its establishment a legal requirement is laudable. There is now a sound legal basis for its maintenance with the investor having a legal right to make claims from it.

2. Establishment of an Investors Protection Fund A Securities Exchange or Capital Trade Point is obligated to establish and maintain an investor’s protection fund,7 which shall be administered by a board of trustees under the supervision of the SEC.8 The board of trustees holds all the assets of the fund, and shall apply same for the purposes of the Act.9T he repealed ISA of 1999 made provision for a governing board, which was not a board of trustees; and the assets of the fund were regarded as the property of the Securities Exchange or Capital Trade Point to be held in trust for the purposes of the Act. The difference in the above provisions is that in the latter, the board merely administered the fund without any right of legal ownership, whereas in the former the board of trustees has radical (not beneficial) ownership of the assets of the fund and the responsibility to administer the fund.

Membership of the board of trustees comprises a maximum of nine persons drawn from dealing member firms, securities exchange or capital trade point, Central Securities Clearing System Limited, SEC, institutional investors, Association of Capital Market Registrars, a person with proven integrity and knowledgeable in the capital market matters, registered shareholders association, and a person who shall be a legal practitioner knowledgeable in capital market matters.10 The composition of the board is a good mix of stakeholders, but the requirement of ‘a maximum of nine persons’ suggests that there could be less than that number, in which case a constituency which ought to be represented pursuant to section 199 (1) might be dropped. The criteria that would be applied by the board of a securities exchange or capital trade point11 where it decides to constitute a board of trustees of less than 9 members is not clear under the Act. It would be preferable for the Act to drop the word

7 Ibid., s. 197 (1). 8 Ibid., s. 197 (2). 9 S. 197 (3). 10 S. 199 (1). 11 It is the board of a securities exchange or capital trade point that is charged

with the responsibility of appointing a trustee on the recommendation of the body he represents, see s. 199 (2).

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‘maximum’, and just state that the board shall consist of nine members.12

3. Objectives of the Fund Generally, the Fund is meant to compensate investors who suffer pecuniary loss resulting from:

a. the insolvency, bankruptcy or negligence of a dealing firm of a securities exchange or capital trade point; and

b. defalcation committed by a dealing member firm or any of its directors, officers, employees or representatives in relation to securities, money or any property entrusted to, or received or deemed received by the dealing member firm in the course of its business as a capital market operator.13

In order to recover from the Fund, one has to be an investor in securities and must have suffered pecuniary loss. Unfortunately, the Investment and Securities Act has neither defined” investor” nor “investment”, especially as it relates to the Investor Protection Fund. Considering that the Act was enacted to regulate all aspects of investment and securities business; and the many interpretations to which the term “investor” is open, it is essential that some sort of definition be provided by the Act as to the nature of the investment it seeks to regulate at each material point.

For our purposes, however, an investor will refer to a person who has interests in the acquisition or disposition of securities traded on a stock exchange from which earnings or profit is expected. These securities include: shares, stocks, debentures, government bonds, commodity futures, options and other derivatives.14 Let us also look at the definition of a “dealing member”. It means a body corporate which is a member of a recognized securities exchange and is licensed to deal in securities on that exchange.15 Thus, a dealing member includes any person who makes or offers to make, induces or attempts to induce any person to enter into any agreement for or with a view to acquiring, disposing or subscribing for securities.16 Pursuant to section 198 (a), compensation shall be paid to investors who suffer pecuniary loss arising from the insolvency, bankruptcy and negligence of a dealing member firm of a

12 This style would be consistent with the composition of the Commission in s. 3

(1), ISA, 2007. 13 S. 198. 14 See s. 314. 15 Ibid. 16 Ibid.

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securities exchange or capital trade point. This particular paragraph was not reflected in the equivalent provision in the repealed ISA 1999.17 It meant that under the former regime such losses arising from insolvency, bankruptcy and negligence were not covered. The present regime reflects the position in the U.K.18 The rate of corporate collapse in recent times, particularly of financial institutions, shows that the provision of section 198 (a) is quite apt. Investors in insolvent member companies of a securities exchange are assured of relief for pecuniary loss suffered from the insolvency. In addition, compensation is payable for negligence19 of a dealing member. This would engender due diligence and best practices, and capital market operators who, in an attempt to make quick business, make representations carelessly or recklessly, would likely desist from such practices.20

Furthermore, compensation can be claimed for pecuniary loss arising from defalcation21 committed by a dealing member firm or any of its directors, officers or employees. Acts of embezzlement and misappropriation of funds are prevalent in the capital market,22 and providing for compensation upon its

17 See s. 159 (1) ISA 1999. 18 See s. 53 Financial Services Act, 1986 on which ISA 1999 was modelled. 19 It is our view that the negligence referred to in this case should comprise those

acts or omissions which will sustain an action for negligence under the law of tort. In other words, in each case, where negligence is implicated, the claimant must prove that a dealing firm has a legal duty to exercise reasonable care regarding foreseeable risks of harm that may rise from the dealer’s conduct. See the case of Universal Trust Bank of Nigeria v Fidelia Ozoemena [2007] 3 NWLR (Pt.1022) 448. The claimant must also show that his loss resulted from the failure a dealing firm to act carefully. See Agbonmagbe Bank Ltd v. CFAO (1966) 1 All NLR 140. Also, cases of economic loss caused by negligent misrepresentation would also be covered here. Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] A.C. 465. See alsoSmith New Court Securities Ltd v Scrimgeour Vickers [1996] UKHL 3; [1997] AC 254; [1996] 4 All ER 769; [1996] 3 WLR 1051.

20 We believe that the provision would give rise to that effect because although compensation is paid out of the Fund , the board of trustees of the Fund becomes subrogated to any right the investor may have against the erring dealing member; see s. 218 ISA 2007.

21 S. 315 of the Act defines defalcation as a default, act of embezzling, failure to meet an obligation, misappropriation of trust funds or money held in any fiduciary capacity and failure to properly account for such funds.

22 See, for instance, Boat Nigeria Limited v. Nigerian Stock Exchange & Securities Exchange Commission, unreported suit No. IST/OA/03/07 of 11/05/07; Central Securities Clearing System Limited & Anor. v. Bonkolans Investments Limited & Ors, (2007) 2 NISLR 93.

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occurrence is fitting, more so as it covers the acts of the directors, officers, employees and representatives of the dealing member firm. The acts of these persons in the course of the business of the dealing firm are rightly attributed to the dealing member. Whereas the Act provides for the two situations mentioned above as the objectives of the Fund,23the section dealing on application of fund adds a third purpose.24It provides that the funds of an investor protection fund shall be applied for compensating persons who suffer pecuniary loss from the revocation or cancellation of the registration of a capital market operator pursuant to the Act. Section 38 provides the grounds for revocation or cancellation of a capital market operator’s licence. It follows that where such a cancellation occasions a pecuniary loss to an investor, he may claim compensation from the Fund. It is not clear why the draftsman chose to be repetitive in enunciating the aim of the Fund and labeling the provisions as “Objectives of an investor protection fund”, and “Application of the investor protection fund”.25 These marginal notes give the impression that the sections deal with different matters whereas the main gist is the same. Having earlier reproduced section 198, our discussion would be facilitated if section 212 is equally reproduced. It provides thus:

The funds of an investor protection fund shall be held and applied for the purpose of- (a) compensating persons who suffer pecuniary loss from the revocation or cancellation of the registration of a capital market operator pursuant to the provisions of section 38 of the Act; (b) the insolvency, bankruptcy or negligence of a dealing member firm of a securities exchange or capital trade point; and (c) any defalcation committed by a member company or any of its directors or employees in relation to any money or other property which, was entrusted or received or deemed received by a member company or any of its directors or employees whether before or after commencement of this Act in the course of or in connection with the business of that company or any other occurrence in respect of which the claim arose.26

23 S. 198 (a) and (b). 24 S. 212 (1) (a). 25 See the marginal notes to s. 198 and 212 respectively. 26 S. 212 (1).

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Section 198 begins thus: “The objectives27 of an investor protection fund shall be to compensate…”, and section 212 (1) provides that - “The funds of an investor protection shall be held and applied for the purpose28 of: (a) compensating…” ‘Objective’ and ‘purpose’ have the same dictionary meaning, which is,” something toward which effort is directed, an aim, or a goal”.29 It would be better to merge sections 198 and 212 by adding to the former the provision on compensation for pecuniary loss suffered from the revocation and cancellation of the registration of a capital market operator, and expunging section 212 entirely. This approach will address the inelegant drafting of section 212. An examination of the provisions of section 212 shows that the section seems to limit the issue of compensation to persons who have suffered pecuniary loss as a result of the revocation or cancellation of the registration of a capital market operator pursuant to the provisions of section 38 of the Act.30 Paragraphs (b) and (c) of section 212 (1) do not specify in what way the fund is to be applied in the case of the insolvency, bankruptcy, negligence or defalcation of a dealing member firm. This has the potential of creating interpretational difficulties. This becomes more obvious when regard is had to provisions of section 213 (1) which provides that “….every person who suffers pecuniary loss as provided in section 212 of this Act shall be entitled to claim compensation…” Section 212 as we have observed above, only provides for compensation in the event that the claims of the investor relates to the circumstances stipulated in paragraph (a). This may likely implicate the interpretative rule of expressiouniusestexclussioalterius, namely; “the express mention of one thing is the exclusion of another”. Where an enactment enumerates the things upon which to operate, everything else (not enumerated) must necessarily and by implication be excluded from its operation and effect.31 Thus, it can be argued that the compensation of victims who base their claims on paragraphs (b)

27 Emphasis added. 28 Emphasis added. 29 See Merrian Webster Dictionary. 30 See s. 212 (1) (a). 31 See the case of Attorney General of Bendel State v. Aideyan [1989] 4 NWLR

(Pt. 188) 646

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and (c) of section 212 is not within the contemplation of the Act.32 Although, such an argument defeats the intendment of the provision, yet it is a possible submission. It is settled that once the meaning of a statute is clear, the courts are to give effect to it.33 However, where there is a lacuna, the courts are not expected to fill such gaps in statutes, neither are they permitted to invite the lawmakers to explain what the provisions of any law mean. The court must find the intention of the lawmakers through the medium of the words used.

Section 212 raises yet a further difficulty. Section 212 (1) (a) provides that the funds in an investor protection fund shall be held and applied for the purpose of compensating persons who suffer pecuniary loss …” It is foreseeable that persons other than investors in secondary market securities may suffer pecuniary loss as a result of the default of a dealing firm. The question then arises as to whether such persons can lawfully claim compensation by virtue of this section. There is need for the legislative draftsman here to specifically exclude the possibility of satisfying claims, which would otherwise be considered too remote for the purposes of compensation under the Fund.

3. Sources of Funds It is pertinent at this juncture to look at the sources of money for the Fund. The Act provides that the Fund shall consist of:

(a) all monies paid to the board of trustees by dealing members of the securities exchange or capital trade point in respect of which an investor protection fund has been established as may be prescribed by the securities exchange or capital trade point from time to time;

(b) the interest and profits, from time to time, accruing from the investment of an investor protection fund;

32 Cf. S. 198. Note, also, how s. 198 clearly omits the circumstance of an investor

suffering pecuniary loss as a consequence of the revocation or cancellation of the registration of a capital market operator, as contained in s. 212 (1) (a). Also, in its judgment delivered on 26 September 2007, the Investment and Securities Tribunal held that the fact that a claimant’s (Boat Nigeria Limited’s) shares were sold without authorisation by Jenkins Investment (a dealing firm) was enough fact to establish that “defalcation” as defined by the ISA had, indeed, occurred; and the applicant was entitled to be compensated from the IPF. See Oluokun Ayorinde, “Fund of Controversy”. TheNews February 20, 2008. http://thenewsng.com/business/, last accessed on 19 September, 2009.

33 See Ojukwu v. Obasanjo (2004) All FWLR (Pt. 222) 166.

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(c) all monies paid to an investor protection fund by a securities exchange or capital trade point in accordance with the provisions of this part of this Act;

(d) all monies recovered by or on behalf of the board in the exercise of any right of action conferred by this part of this Act;

(e) all monies paid by an insurer pursuant to any contract of insurance or indemnity entered into by a dealing member or the board of trustees;

(f) all monies held by any investor protection fund or by whatever name so called, established by a securities exchange or capital trade point prior to the coming into force of this Act; and

(g) all other monies lawfully paid into an investor protection fund.34

It can be gleaned from the above provisions that dealing members of a securities exchange or capital trade point as well as the securities exchange or capital trade point contribute money to the Fund as may be prescribed. Also, interest and profits realised from investments of the Fund are paid into the account. An instance of monies lawfully paid into an investor protection fund, pursuant to paragraph (g) above, would be found in rule 203 (4) of the Securities and Exchange Commission Rules and Regulations which requires that all unclaimed return monies, being surplus monies due to subscribers or purchasers of securities shall after 6 months be transferred by the Registrar into an investors protection fund.

The statutory minimum amount that must be paid to the credit of an investor protection fund on the establishment of a securities exchange or capital trade point shall be approved by SEC from time to time.35 Conversely, the board of trustees shall have the discretion to determine the amount or minimum amounts to be contributed by each dealing member firm to the Fund, subject to the approval of the securities exchange or capital trade point.36 In the United Kingdom, for instance, the Financial

34 S. 202. 35 S. 207 (1). 36 S. 207 (2). See Art. 70 of the Rules and Regulations of the Nigerian Stock

Exchange Governing Dealing Members which provides that “each dealing member upon admission to Membership of the Exchange shall pay a non-refundable sum of N1,000,000 as initial contribution to the fund or such other amount as may be determined by Council.”

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Services Authority (FSA)37provides a benchmark–levies imposed must reflect, so far as practicable, the amount of claims made, or likely to be made in respect of that exchange or trade point. A similar benchmark in our laws is desirable to check the incidence of misappropriation and abuse of the fund. The arrangement in UK permits the imposition of two distinct kinds of levies, namely: a management expenses levy and a compensation costs levy.38 The compensation costs levy may include anticipated compensation costs for the next 12 months.39 Both levies relate to actual costs incurred or costs anticipated to be incurred during the next financial year, and accordingly there is no substantial standing fund.

There are safeguards for the maintenance of the fund. First, all monies which form a part of the fund are required to be paid or transferred into a separate bank account in Nigeria pending the investment or application of such monies in accordance with the Act.40 This would ensure that the monies are not tampered with or channelled to other purposes. Secondly, proper books of accounts relating to the fund shall be kept, and income and expenditure account as well as the balance sheet for the year must be prepared not later than three months following the end of the financial year.41 The accounts shall be audited by an auditor appointed by the securities exchange or capital trade point on the recommendation of the board of trustees.42 While the provisions are meant to ensure accountability and transparency, the mode of the appointment of the auditor may not guarantee the independence of the auditor. Since the board of trustees manages the fund, it should be excluded from the process of appointment of an auditor so as to avoid any complicity.

Thirdly, the fund should not fall below the minimum amount approved for a securities exchange or capital trade point. Where it does, the board of trustees is required to take steps to make up the deficiency.43 It could direct that an amount equal to the deficiency be transferred from other funds to the investor

37 The Financial Services Authority regulates the whole of the UK financial

services sector which include investment business, banking and insurance – see the Financial Services and Markets Act (FSMA), 2000.

38 See the FSA Handbook COMP 13.2.2. 39 Ibid., COMP 13.2.3. 40 S. 203. 41 S. 205 (1). 42 S. 205 (2). 43 S. 208 ISA.

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protection fund, or determine the amount to be contributed by each dealing member if there are insufficient funds to be transferred to the fund.44 Fourthly, a securities exchange or capital trade point may, from time to time, from its general funds give or advance, any sums of money to an investor protection fund on such terms and conditions as it may deem fit.45

Finally, the Act stipulates the items to which the monies of the fund may be applied by the board of trustees.46 This provision, we believe, is intended to guide the board of trustees in the exercise of its discretion, thus avoiding arbitrary exercise of discretionary power. Monies in the fund which are not immediately required for its purposes may be invested by the board of trustees in any manner in which the trustees are for the time being authorised by the Trustee Investment Act to invest trust Funds.47 Such investment is likely to yield dividends which consequently would increase the volume of the fund.

4. Claims Procedure Persons who have suffered pecuniary loss, in connection with any of the purposes for which the fund is established as set out in section 212 of the Act, shall be entitled to claim compensation from the fund established for the securities exchange or capital trade point to which the defaulting member belongs.48 Such claims may be determined, from time to time and as the case may be, by a securities exchange, capital trade point, SEC or the Investment and Securities Tribunal. The board of trustees may, after such determination, appropriately settle the claims from the fund.49 The independence and impartiality of the arbiter is crucial here.

In keeping with the fundamental principle of fair hearing, section 36(1) Constitution of the Federal Republic of Nigeria, 199950 provides that in the determination of an individual’s civil

44 Ibid. 45 S. 210. 46 They include claims arising from insolvency, bankruptcy or negligence of a

failed dealing member firm; claims arising from defalcation; compensation ordered by SEC or the Investments and Securities Tribunal (IST); legal, professional and other expenses incurred in investigating or defending claims or in relation to the fund etc.; insurance premiums; wages and salaries of staff of the board of trustees – see s. 204.

47 S. 211. 48 S. 213 (1). 49 S. 215. 50 Cap. C23 L.F.N. 2004.

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rights and obligations, he shall be entitled to fair hearing within a reasonable time by an independent and impartial court or other tribunal established by law. This right to a fair hearing is better explained in the two traditional maxims, i.e.

(a) audi alteram partem (the other party must be heard); and (b) nemo judex in causa sua (a person shall not be a judge in

his own case); in which case, there must be freedom from bias.51

In determining whether or not there is likelihood of bias, it has been laid down that the test is that of a right thinking member of the society. If the circumstances are such that a right thinking member will go away saying that the judge is biased then he should not sit; if he does, the decision cannot be upheld although in fact, he is not biased.52 Accordingly, the constitution of the determining body – a securities exchange, capital trade point, SEC, or the IST, as the case may be, must be such as to secure the impartiality of the tribunal. This will go a long away in restoring investors’ confidence in the process.

An aggrieved investor is required to make a claim for compensation in the first instance to a securities exchange or capital trade point. The claim shall be verified within 30 days by the securities exchange or capital trade point which will also determine the amount or extent, if any, to which the claim shall be allowed.53 A verified claim shall be paid from the fund to an aggrieved investor within 14 days of such verification by the securities exchange or capital trade point.54 The statutory periods allowed for verification of claims and payment of verified claims are commendable and, if complied with, are capable of advancing the legitimate interests of investors.

Where the claimant is dissatisfied with the determination made by the securities exchange or capital trade point, the jurisdiction of the Investment and Securities Tribunal (IST)

51 Garba & Ors. v. The University of Maiduguri (1986) 2 S.C. 128. 52 Adio v. Attorney-General of Oyo State &Ors [1990] 7 NWLR (Pt. 163) 448. 53 Ibid, s. 213 (2). This is an important improvement on the ISA, 1999, which is

silent as to the time within which a claim may be verified. As we shall observe later in this work, in the absence of a stipulated time limit, a claiming investor may suffer unnecessary adversity. Especially, bearing in mind that what is required at this stage are preliminary investigations to ascertain that a claimant has suffered pecuniary loss arising from any of the circumstances mentioned in s. 212 ISA 2007.

54 S. 213 (3).

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becomes due and unquestionable. Its original jurisdiction in this regard is exclusive.55An aggrieved investor may also explore the option of taking his grievance directly to the Administrative Proceedings Committee of SEC on the failure of the securities exchange or capital trade point to provide suitable redress.

Where defalcation is in issue, a claim for compensation shall be made in writing to the board of trustees within 6 months after the claimant became aware of the defalcation, and any claim which is not so made becomes barred unless the Commission determines otherwise.56 It should be noted that no such claim shall lie if prior to the defalcation, the money or other property concerned had ceased to be under the control of the director or directors of the affected dealing firm.57 The arrangement of the above provisions on claims for defalcation in separate sections is clumsy. It would be tidy if the aspect which is under the provisions on publication of notice of claims58 is expunged and transferred to section 213 which deals generally with claims against an investor protection fund.59

SEC, a securities exchange or capital trade point may publish a notice in any two national daily newspapers circulating in Nigeria calling for claims for compensation from the fund. The notice shall specify the date, not being earlier than one month after the said publication, on which the claims may be made.60

5. Amount of Compensation Payable Pursuant to section 213 (6), the amount payable as compensation to a claimant is subject to any limit that may be determined by the securities exchange or capital trade point and approved by the Commission from time to time.61Also, a claimant shall only be entitled to the amount of the actual pecuniary loss suffered by him (including the reasonable cost of disbursement incidental to the making and proving of his claim) less any amount or value of all monies or other benefits received or receivable by him from any source other than the fund in reduction of the loss.62 The word

55 See S. 284 (1) (a) (iii), ISA 2007. 56 S. 214 (2). 57 S. 213 (5). 58 See s. 214 (2). 59 That provision should actually precede subsection 5 of s. 213 because the main

provision should normally come before any exception or proviso. 60 S. 214 (1.) 61 Ibid 62 Emphasis added.

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“receivable” may be defined to mean “suitable to be received, especially as payment”.63 Thus, where an investor is compensated or is to be compensated for his loss under any other arrangement other than the fund, e.g. an insurance scheme, he shall be indemnified under section 213 (6) only to the extent that his loss is not covered under such a scheme. This seems to be the import of the words “received or receivable” used by the Act in relation to the deductions to be made in settling a claiming investor. It is, therefore, of no consequence that the claimant, in this case, is not eventually indemnified by the source other than the fund. Where the possibility of receiving compensation from another source is ascertained, he will be paid less than that amount. This raises some concerns for an investor who has a similar claim, in this instance, against an insurance company or such other body, and the concerned body, justly or unjustly refuses to make good its obligations. Would such a claimant still be deprived of his claim against the fund to the amount or value of all monies or other benefits receivable by him from the alternative source? This would appear to be the express will of the legislature, by virtue of Section 213 (6) of the Act; or is this another instance of clumsy draftsmanship?

Let us repeat that in determining the amount payable to an aggrieved investor, regard would be had to the limits fixed by the securities exchange or capital trade point and approved by the Commission. Thus, if the amount claimed by the investor is less than the set limit, then he shall recover, in full, his claims against the fund. However, where it exceeds the limit, the claimant will only be compensated to the extent that his claims fall within the set limit. In both cases, the amount to be disbursed in his favour shall be less any amount or value of all monies or other benefits received or receivable by him from any source other than the fund in reduction of the loss. In UK, the maximum amount of compensation in respect of designated investment business is 100 per cent of the first of the first €30,000 and 90 percent of the next €20, 000, producing a maximum payment of €48, 000.64 In Nigeria, following an order given by the Investments and Securities Tribunal in Ezemgbe v. Nigerian Stock Exchange & Anor.,65 SEC hurriedly came up with the Investors Protection Rules 2007 which provides that the rate of compensation and the 63 See Microsoft Encarta® 2007. © 1993-2006 Microsoft Corporation. 64 See COMP 10.2.3. 65 Unreported Suit No. IST/OA/06/06 decided by the Investments and Securities

Tribunal on 13th December, 2006.

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maximum compensation payable to an investor who has suffered a loss shall be N200,000, or where the loss is less than N200,000, the investor shall be paid the full amount of the loss. It, also, provides that the amount shall be reviewed from time to time. We wish to point out that the prescribed compensation is too small as to mitigate the loss of heavy investors. For instance, where an investor has lost investments valued at N3.7 million it is ridiculous to issue him a cheque of N200,000 as compensation.66 Compensation must be such as to restore the aggrieved to his former position or to a position so near it. It is expedient that the maximum amount payable be raised be raised so as to raise investors confidence in the capital market.

The claimant shall be entitled to interest on the amount of the compensation, less any amount attributable to costs and disbursements, at the rate of five per cent per annum calculated from the day upon which a claim arose and continuing until the day upon which the claim is satisfied.67 This is particularly beneficial to an investor whose compensation is being delayed.

In anticipation of situations where available money in the Fund will be insufficient in meeting the liabilities of a dealing member firm, the Act provides that a securities exchange or capital trade point may, on the recommendation of the board of trustees, impose on any or every dealing member firm a levy of such amount as it thinks fit to remedy the deficiency.68 The levy shall be paid within the time and in a manner prescribed by the board of trustees.69

Furthermore, where the amount available in the fund is insufficient to settle all the claims against it, then the amount at the credit of the fund shall be apportioned between the claimants in such manner as the board of trustees thinks equitable.70We are

66 This was exactly what happened in Ezemgbe v. Nigerian Stock Exchange &

Anor., (supra), where the applicant whose investments valued at N3.7 million was lost through Apex Securities Limited claimed compensation out of the investors protection fund, and NSE issued a cheque of only N200,000 as compensation.

67 S. 213 (7). 68 S. 209 (3). Similarly, in UK, the scheme manager may, however, impose a

levy at any time if it has reasonable grounds to believe that the funds available to meet relevant expenses are, or will be, insufficient. The maximum amount of a compensation costs levy on the designated investment business sub-scheme in any one financial year is €400 million, see COMP 13.4.7.

69 S. 209 (3). 70 S. 209 (2).

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of the opinion that equity will be better done and be seen to be done if the Act prescribes the manner of apportionment instead of leaving the task with the board of trustees. If the board thinks it is equitable to settle one claimant only with what is available, then other claimants have to wait until more money is received into the Fund. We submit that equity would demand that in such a situation, the claims should abate in equal proportion.71 This will ensure that every claimant receives some compensation. Whatever that remains unpaid will then be charged against future receipts of the fund.72

7. Some Relevant Concerns It has been rightly observed that: “A capital market is not created and sustained by passing the necessary laws. Laws if not properly understood by regulators and operators, once adopted may even negatively affect the development of the market.”73Although, the ISA contains notable provisions on the investor protection fund, we wish to express the following concerns over their workability.

a. Availability of information to Investors We observed that the Act does not compel the securities exchange and capital trade points to provide adequate, relevant and effective information to current or prospective investors, in connection with the availability and workings of the compensation scheme. The only provision on information is section 214 (1) on publication of notice calling for claims against the fund. Even that section is not couched in an obligatory manner. It States that the SEC, a securities exchange or capital trade point “may74 cause to be published...” In England, the scheme manager is obliged to publish information for claimants and potential claimants on the operation of the scheme. A similar provision should be inserted in the Act.

Also, the regulatory authorities i.e. the Nigerian Stock Exchange and SEC have displayed some form of ignorance or apathy towards the operations of the Fund. A good example is Boat’s case75 where SEC advised the applicant to seek redress 71 See s. 494 (4) (a) CAMA, for a similar treatment of preferential debts in the

event of winding up and the assets of the company are insufficient to meet the preferential debts.

72 S. 209 (2). 73 T. Ogowewo, “Transposition of Securities Legislation: The Case of the US

Federal Securities Law and Nigeria” (1996) JIBL 239. 74 Emphasis added. 75 Supra. The facts of the case are discussed extensively below.

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from the EFCC against an errant dealer instead of pointing him to the compensation scheme. SEC and NSE have been criticized for lack of awareness about the existence of the Fund.76There is the impression that the concerned authorities are careful that important information relating to the Fund be concealed from investors. It is curious that the Nigerian Stock Exchange has not at any time published details of the funds in the account.77 Consequently, the fund has remained redundant for a long time. The law will always recognize the right of investors to material information affecting their investment. In this case, especially, there is the need to officially create a legal obligation requiring securities exchanges to regularly enlighten investors on the protection fund.

However, we quickly point out here, that a balance must be maintained between the need to effectively inform investors on the scheme, and the advantage of preventing adverse repercussions on the stability of the capital market.

b. Accessibility and Reliability of the Compensation Scheme

The procedure for claiming compensation against the Fund as prescribed under the Act is relatively simple and uncomplicated. However, this simplicity does not, in reality, guarantee any successful claim. On the contrary, compensation under the fund has been likened to the biblical camel trying to pass through the eye of a needle.78

The few instances of efforts to make claims from the Fund are quite illustrative. In Boat Nigeria Limited v. Nigerian Stock Exchange & Securities Exchange Commission,79 Boat Nigeria Limited (“the applicant”); one of the companies defrauded in the famous case against Jenkins Investment Limited attempted to claim from the investors protection fund. The applicant, sometime in January 2006, bought four million shares of First City Monument Bank, FCMB which it subsequently deposited in the Central Securities Clearing System, CSCS, through its stockbrokers, Jenkins Investment Limited. It requested for, and

76 The News, “NSE Not Transparent with IPF” http://thenewsng.com/business

/nse-not-transparent-with-ipf/2008/02, February 20, 2008, last accessed on 5 September, 2009.

77 Ibid. 78 The News ‘Fund of Controversy’ http://thenewsng.com/business/fund-of-

controversy/2008/02, February 20, 2008, last accessed on 5 September, 2009 79 Unreported Suit No. IST/OA/03/07.

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was issued a verification slip indicating its stock position in October 2006.

However, the claimant was to discover during a routine check on CSCS on 24 January 2007 that Jenkins had disposed of the shares without its mandate. Furthermore, the stock position slip earlier given it by Jenkins was discovered to have been forged. The Lagos office of Jenkins was also found to be under lock. The Nigerian Stock Exchange disclosed that Jenkins had indeed been suspended as a result of its fraudulent activities. It wrote the 2nd respondent i.e. SEC, which advised the claimant to seek redress at the Economic and Financial Crimes Commission, EFCC.80

In any case, the claimant’s lawyers wrote authorities of the NSE and SEC demanding compensation under the Fund. But in its reply, the NSE claimed it was still investigating the fraudulent activities of Jenkins Investment.81 Boat Nigeria Limited, subsequently, took its case to the Investment and Securities Tribunal. In an Originating Application filed by its lawyer on 11 May 2007 against the NSE and SEC as the first and second respondents, the claimant asked the Tribunal to make a declaration that it was entitled to be compensated under the investors protection fund and issue an order directing the respondents to compensate it for its entire lost investments being 4,000,000 units of FCMB Plc shares at the prevailing rate at the time of judgment and 10 per cent interest rate until total liquidation.

Boat Nigeria, through its counsel, submitted that “a close perusal of sections 151, 156, 160, 161,162 and 163 of the Investment and Securities Act 1999 showed that an investor could make a claim from the Investors Protection Fund once it is established that defalcation had occurred and the applicant made a

80 The issue raised here, is whether in the face of the express provisions of the

ISA, 2007, it was the lawful obligation of SEC to incline victims to pursue their remedies under the criminal justice system; rather than advise them on their rights to be compensated from the fund. It shows obvious ignorance, on the part of the regulatory body, of the compensation scheme in which it plays a major role.

81 It is for this reason that we have earlier commended the 30 days limit required for investigations by virtue of s. of s. 213 (2) of the 2007 Act. There was no similar provision in the 1997 Act, which was the applicable law at the time of this incidence.

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demand against the NSE within a period of six months.”82 It, therefore, argued that defalcation had occurred and it was entitled to be compensated from the Fund. It, also, argued it was entitled to be compensated to the tune of N71.2 billion which was the financial value of the four million FCMB shares as at the time of the institution of the case, in accordance with the provisions of sections 165 of ISA.

But in its defence, the NSE asked the IST to dismiss the suit with substantial cost as the Jenkins matter was then still under investigation. On its part, SEC argued it should be excused from the suit as it is not a custodian of the Fund. The Tribunal, however, ruled that SEC, as the apex regulatory authority of the capital market and the responsibilities entrusted upon it for the management and disbursement of funds from the investors protection fund, is both a desirable and necessary party to the suit. In its judgment delivered on 26 September 2007, the Tribunal held that the fact that the NSE-owned CSCS itself confirmed that the claimant’s shares were sold without authorisation by Jenkins Investment was enough fact to establish that “defalcation” as defined by the ISA had, indeed, occurred and the applicant was entitled to be compensated from the Fund. Consequently, the Tribunal ordered the NSE to pay Boat Nigeria Limited from the Fund the sum of N21.6 million, being the market value of the four million shares as at 24 January 2007 when the fraud was discovered. In addition, the NSE was ordered to pay the claimant five per cent interest from the date the fraud was uncovered till the satisfaction of the claim.

The NSE filed an application for stay of execution of the judgment on 29 October 2007. The grounds of appeal were that if it were to pay the total amount ordered by the Tribunal to Boat Nigeria Limited as a compensation, there would not be enough left in the purse of the Fund to pay the other claimants. The NSE, also, said through its motion on notice that various claims arising from the defalcation by Jenkins Investment alone were about N400 million and arguing it had a duty to apportion available funds among claimants in an equitable manner to meet the competing claims of investors in cases where defalcation has been established.

Counsel to the NSE backed up the claim with a statement of account of the IPF domiciled with Stock Exchange House

82 Boat Nigeria Limited v. Nigerian Stock Exchange & Securities Exchange

Commission (supra) at p. 3.

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branch of First Bank of Nigeria plc. According to the statement, the amount standing to the four accounts of the Fund in the bank as at 30 June 2007 are: A/C 2444020002226 containing N25,998, 761.01; 2444020002233, N37,769,332.61; 2444020002066, N151,249,684 and 2444020002189, N228, 478,518.69. The NSE filed an appeal which is yet to be determined.

In another case, Livinus Ezemegbe v. Nigerian Stock Exchange & Anor.,83 Chief Ezemgbe whose investments valued at N3.7 million was lost through Apex Securities Limited, brought an action at the IST against the NSE and SEC demanding compensation out of IPF. However, the NSE and SEC contended at the IST that the investor protection fund was not operational and the applicant cannot benefit from the fund since the guidelines from drawing from it were not yet in place. There is no doubt that this sort of answer could only indicate that the authorities concerned here lack the required level of commitment to perform their existing obligations under the Act. It also clearly reflects a disconnection from global best practices.

Nevertheless, in its judgment delivered on 13 December 2006, the IST rightly rejected this argument. It ruled that it was the responsibility of the NSE and SEC to put in place guidelines for benefiting from the funds. Consequently, it ordered that the applicant be compensated from the investor protection fund and that the NSE, in collaboration with SEC, should draw up and make public within 90 days necessary guidelines for the implementation of the Fund in line with the provisions of the ISA.

Consequently, the SEC came up with what it tagged Investors Protection Rules 2007 in which it pegged the maximum amount payable to investors who suffered any form of defalcation to N200,000. As stated in the rules, “the rate of compensation and the maximum compensation payable to an investor who has suffered a loss shall be N200,000, or where the loss is less than N200,000, the investor shall be paid the full amount of the loss.” It was also indicated, though, that the amount be reviewed from time to time.

Based on the new rules, the NSE issued a cheque of only N200,000 to Ezemegbe. But the investor refused to accept the grossly reduced compensation. Ezemegbe’s lawyer also pointed out that the cheque for the N200,000 was raised on Union Bank, whereas the NSE never indicated in the appeal it filed against the judgment of Jenkins Investment that there was an account of the

83 Supra.

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investor protection fund domiciled with Union Bank. This would seem to raise issues of integrity in the administration of the Fund.

The biggest claim so far from the fund could have been the N726 million claimed in Ogunlesi A. Johnbosco v. NSE & SEC.84 The investor was claiming the sum of N726 million with interest at 19 per cent per annum to be paid from the Fund as compensation for the unauthorised sale of his shares also by Jenkins Investment Ltd. The suit was struck out on 23rd October, 2008 following an application for an order that the suit be withdrawn. One wondered if theN200,000 prescribed by the Investors Protection Rules in this circumstance could have engender the confidence of an investor. Also, it is a thing of concern that, to date, records of the account of the Investor Protection Fund have been kept away from the knowledge of the investing public.

c. Limit of Compensation and SEC’s Role We observed that the Investors Protection Rules which begged the maximum compensation payable to an aggrieved investor was made by SEC. This is contrary to the provisions of the Act. Section 213 (6) ISA, 2007 provides that:

Subject to this part of this Act and any limit that may be determined by the securities exchange or capital trade point and approved by the Commission from time to time, the amount which any claimant shall be entitled to claim as compensation from an investor protection fund shall be the amount of the actual pecuniary loss suffered by him ...

This section plainly casts the responsibility of fixing compensatory limits on the relevant securities exchange or capital trade point, even though it is still made subject to the approval of the SEC. It will be stretching the point to argue that by virtue of its approving role, the SEC has a concurrent power to set a limit as to what claimants against the fund are entitled. Moreover, the Section 213 (6) provisions seek to limit or modify proprietary rights vested in a person. It is settled law that such statutes which encroach on a person’s proprietary rights must be construed fortissime contra preferentes, which is strictly against the acquiring authority but in favour of the citizen whose property rights are being deprived. Consequently, as against the acquiring authority, there must be a strict adherence to the formalities

84 Case No. IST/OA/08/07.

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prescribed for the acquisition.85 In the making of that limit, there has been no such adherence. Thus, the validity of the rules purportedly made pursuant to the Act is questionable.

There is no gain saying that the sum of N200,000 fixed as the maximum amount of compensation payable is ridiculous. It can hardly make for the pecuniary loss suffered by big time investors. On the other hand, there is a view among some securities regulation scholars that compensating victims of secondary market securities fraud or negligence is inefficient. As the theory goes, diversified investors are as likely to be on the gaining side of a transaction tainted by fraud as the losing side. Therefore, such investors should have no expected net losses from fraud because their expected losses will be matched by expected gains.86 Undoubtedly, this view is flawed; the increasing vulnerability of even the most circumspect capital market investor to extensive financial adversity resulting from corporate fraud and mismanagement presents a compelling case for compensation. And such compensation should be commensurate with the pecuniary loss suffered in order to engender confidence in the capital market.

8. Conclusion We have attempted in this article to explore the operations of the investor protection fund under the Investment and Securities Act, 2007. We have observed that an investor protection fund is the fund set up by a security exchange or capital trade point to meet the legitimate investment claims of the clients of the defaulting members. We have, also, ascertained that these claims are pecuniary, and not speculative in nature. In the course of our discussion, we raised certain concerns and also, made suggestions which we believe would make the investor compensation scheme more effective.

85 See Obikoya v. Governor of Lagos State [1987] 1 NWLR (Pt. 50) 385; LSDPC

v. Foreign Finance Corporation [1987] 1 NWLR (Pt. 50) 413; Attorney-General Bendel State v. P.L.A Aideyan [1989] 4 NWLR (Pt. 118) 646; Din v. Attorney-General of the Federation [1988] 4 NWLR (Pt. 87) 147 at page 184; (it is also reported in (1988) 9 SCNJ 14); Walsh v. Secretary of State for India (1863) 10 H.L.C. 367; Belfast Corporation v. O.D. Cars Ltd. [1960] A.C. 490; Osadebay v. A. G., Bendel State [1991] 1 NWLR (Pt. 169) 525.

86Alicia Davis Evans, “The Investor Compensation Fund” Journal of Corporation Law, Vol. 33, No. 1, 2007; U of Michigan Law & Economics, Olin Working Paper No. 07-020.

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We can safely conclude that the investor protection fund is only a factor in a larger regulatory scheme to recognize and protect investor interests, while ensuring that the realities of commercial life are not eclipsed. The scheme is a function of a variety of substantive, procedural and institutional aspects of our commercial practice, and this should be borne in mind while determining the rights and obligations of investors. Finally,it is a commendable thing that the Nigerian government subscribes to the expediency of an investor protection fund, and has also endeavoured to statutorily authenticate same. The interest in compensation, however, would be served better by an improved framework than is currently in place. Thus, a loss of faith in the capital market would tend to prevail if nothing is done about the limitations in the system as it is.

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TRADE DISPUTES RESOLUTION UNDER NIGERIAN LABOUR LAW ∗∗∗∗

Abstract In any developed nation, the law on trade dispute is a matter of great legal, economic, social and political concern and is therefore central to the Labour Law. As a result, one of the dominant themes of Labour Law policy has become the improvement of trade disputes resolution mechanisms. This article examines the procedure or mechanism put in place to ensure speedy, fair and proper resolution of trade disputes as incorporated in the Trade Disputes Act which is one of the statutory interventions aimed at regulation of industrial relations. More importantly, the article also highlights the expansion of the jurisdiction of the National Industrial Court (NIC) in trade dispute resolution beyond the provisions of the Trade Disputes Act.

1. Introduction In all nations and organizations, dispute is endemic. It is part of national and organizational life and its effective management is a necessity for organizational and national survival1. Dispute can both be constructive and destructive in nature. Managers and workers in many organizations are placed at cross-purposes, as the relationship of master/servant make them traditional adversaries. Managers often exert unreasonable level of pressure on the servants for improved performance. This in turn often leads to conflicts or disputes as employees may not meet the performance targets and issues of redundancy, proper remuneration, insurance for staff, etc arise. Resolution of such disputes is one of the primary concerns of labour law. The resolution of such disputes is often shrouded in controversy and fraught with difficulties, arising both from regulatory framework as well as operational logistics. The aim of this paper is to examine the provisions for dispute resolution put in place to meet with the challenges of trade dispute

∗ Clara C. Obi-Ochiabutor B.Sc. (Pol. Sc), LL.M, B.L, Lecturer, Faculty of Law University of Nigeria Enugu Campus.

1 L. Gordon, “Managing Conflict in Today Organization Management Training and Development,” Labour Law Journal, Vol. 1 No. 1 (2007) p. 29. See Beatham v. Trinidad Cement Ltd (1960) A.C. 132 at 143, per Lord Denning.

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matters in Nigeria. The paper is divided into three parts. Part one is the introduction which essentially deals with conceptual clarifications. Part two examines the various ways of resolving trade disputes in Nigeria highlighting the impact of current changes in the law while part three is the concluding remarks. We shall start by looking at the nature of trade disputes.

a. Meaning of Trade Disputes S. 47 (1) Trade Disputes Act 2004 defines trade dispute as “Any dispute between employer and workers or between workers and workers which is connected with the employment or non-employment or the form of employment and physical condition of work of any person”. Accordingly, whenever a difference exist between the parties, that is, employers and workers or workers and workers, in regard to “the employment or non-employment, or the terms of employment and physical conditions of work or any person”, then a trade dispute exists. Therefore, a purely inter or intra-union disagreement which is unrelated to the employment or non-employment and physical conditions of any person is outside the ambit of trade disputes. Trade Dispute (Amendment) Decree 1992 assumed another dimension in respect of the meaning of Trade Dispute by its extension of exclusive jurisdiction of National Industrial Court (NIC) over trade dispute cases to inter or intra – union disputes. Perhaps, one good example of both inter and intra – union dispute concerns restraint of trade, where a union demands from an employer under pain of strike not to employ non-union members, this is a trade dispute since this relates to “the employment or non-employment… of any person.2 This is equally so where two or more unions in one establishment are in disagreement as to whether certain workers should belong to one of them. Each of the unions may threaten to withdraw its labour if the affected workers do not belong to it. Or each of the unions may demand that the affected worker be relieved of their employments if they do not belong to it. One could take this as an inter-union dispute which falls within the definition of a trade dispute.3 This matter was in issue in Udoh &

2 G.O.S Amadi, Legal Guide to Trade Unions (Nsukka: Afro-Orbis Publishing Ltd, 1999) p. 45.

3 Ibid p. 46.

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Ors v. Orthopaedic Hospitals Management Board v. Anor.4 The issue in Udo’s case was an intra-union dispute since it concerns the employment or non-employment of the affected workers whose membership were being claimed by both the Non-academic Staff Union of Educational and Associated Institutions and Medical and Health Workers Union of Nigeria. This was what led to the institution of the action in the high court.5 In the light of the forgoing reasoning, the NIC’s exclusive jurisdiction over trade dispute cases should be confined to differences whether between employers and workers, or workers and workers, or involving inter and intra-union disagreement, which are related to the employment or non-employment, or the terms of employment or physical conditions of work of any person.

Thus, for a dispute to qualify as trade dispute, the predominant purpose of the dispute must be to promote trade union interest and this remains a question of fact in every case resting the burden of proof on the party alleging the existence of a trade dispute. To qualify as a trade dispute, the purpose must be:

(i) Legitimate and (ii) In furtherance of the lawful interest of the workers. (iii) The dispute must be a present one, not a contemplated or

anticipated dispute.6 The machinery for settling trade dispute as created by the Trade Dispute Act 19907 is founded on hierarchy of procedures. At the base of the hierarchy is a collective bargaining process, sometimes involving mediators and then the National Industrial Court (NIC). In between these two are the conciliator and the Industrial and Arbitration Panel (IAP). The purpose of establishing these bodies is to provide effective mechanism for ironing out differences between parties to a trade dispute without necessarily having recourse to strikes and lock-outs.8 2. Procedure for Trade Dispute Resolution There are four ways of resolving trade disputes under the Trade

4 (1990) 4 N.W.L.R, (Pt. 142) 52. 5 G.O.S. Amadi, op. cit. 6 Bodunde Bankole, Employment Law, (Lagos: Libri Service Ltd., 2003) p. 20. 7 As amended by the Trade Disputes (Amendment) Decree No. 47 of 1992. 8 G.O.S. Amadi op. cit.

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Dispute Act. These are:- a. Resolution by the parties themselves b. Resolution by a conciliator c. Resolution by arbitration, and d. Resolution by court.

We shall discuss of each of these briefly.

A. Resolution by the Parties Themselves The provisions of the act is such that the employer and the trade union are expected and encouraged to always resolve for themselves whatever trade dispute that may arise between them. As a result, the parties are free to enter into collective agreement which will incorporate the method by which they can settle their disputes.9 The Act further provides that the collective agreement be deposited with the Minister of Labour and Productivity, failure of which attracts a fine of N100 on conviction.10 On the strength of the settlement clause in the collective agreement, the parties are required by law to settle their trade disputes themselves.11 However, where the collective agreement does not contain a settlement provision, or if one exists but the parties fail to reach a settlement, the Act provides that the parties should “meet together by themselves or their representatives, under the presidency of a mediator mutually agreed upon and appointed by or on behalf of the parties with a view to amicable settlement of the dispute”.12 Notwithstanding the foregoing, where the minister becomes aware of a trade dispute between the parties, he may suo motu, inform them or their representatives in writing of his observation and of what steps he proposes to take for the purpose of resolving the dispute13 In this regard, the minister may appoint a conciliator14 to inquire into the causes and circumstances of the dispute and by negotiation with the parties endeavour to bring about a settlement.15 Alternatively, the minister may refer the dispute for

9 Trade Dispute Act, s. 2(1). 10 Ibid. 11 Ibid, s. 3(1). 12 Ibid, s. 3(2). 13 Ibid, s. 4(1). 14 Ibid, s. 4(2a). 15 Ibid, s. 7(2).

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settlement to the Industrial Arbitration Panel (IAP) or to some other board.16 B. Resolution by a Conciliator The minister may exercise his discretion to appoint a conciliator under two circumstances – first is where he, without allowing the parties to settle the disputes themselves, appoints a conciliator to inquire into the matter. The second, is where the parties could not resolve the dispute themselves or through their mutual mediator, then the appointment of a conciliator may become necessary. The conciliator must be a fit person whose duty is to effect a settlement of the dispute between the parties.17 Where the request to conciliate has been accepted by the other party the dispute is then referred to a conciliation body consisting of one or three conciliators to be appointed:- a. In case of one conciliation (jointly by the parties) b. In case of three conciliators

i. One conciliator by each ii. The third conciliator jointly by the parties18

Section 41(1) of the Act19 provides the conciliation body shall acquaint itself with details of the case and procure such other information, as it may be required for the purpose of settling the dispute. After the conciliation body had examined the case and heard the parties, it shall submit its terms of settlement to the parties. If the parties agree to the terms of settlements, the conciliation body shall draw up and sign a record of the settlement.20 The conciliator shall thereafter forward to the minister the terms of settlement signed by the representatives of the parties and decision reached shall be binding as from the date which the memorandum is signed. But if the agreement is not reached and dispute not settled, the Minister shall report the case for settlement to the industrial arbitration panel.21 The Minister is

16 Ibid, s. 4(2)(b), also see generally G.O.S. Amadi op. cit. 17 Trade Disputes Act, s. 7(1). 18 Ibid s. 40. 19 Ibid. 20 S. 42 (1&2). 21 Y.A. Aauda “Employment of Independent Arbitration in the Management of

Trade Disputers and Industrial Law in Nigeria,” Labour Law Journal, Vol. 1, No. 1 (2000) p. 31.

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obligated on receipt of any objection to make a referral to the National Industrial Court22 (NIC) which under the law, is the apex court on industrial dispute matters. This implies that unlike other courts where litigants can sue and be sued directly, only the Minister can refer trade disputes to the industrial court in cases other than in appeal cases where the party has the right to appeal directly to the court where he objects to the award made out either at the conciliation level or at the Industrial Arbitration Panel thereafter known as IAP.

It must however be noted that written agreement though an essential of the arbitration agreement made pursuant to the Act, does not invalidate an arbitration agreement under the Common Law and the customary law. From the foregoing, it does appear that settlement of trade dispute has a procedure. That when it fails to succeed at the level of conciliation, it is then referred by the Minister to the Industrial arbitration.

C. Resolution by Arbitration One of the ways and the most civilized method of settling dispute is arbitration whereby those concerned agree to submit the dispute to a third party in whom both have confidence and undertake to abide by the decision of the said party.23 Arbitration practice is as old as the history of human civilization. It is as old as mankind himself. It has a history that goes as far back as the medieval ages. In many parts of the world, forms of arbitration are known to have existed in much earlier times.

In fact, in classical Roman times, all settlements of disputes were by private arbitration with the approval and assistance of a magistrate the pretor, elected annually for that purpose.24 So, what is arbitration? Ordinarily, arbitration is the use of an arbitrator to settle a dispute. An arbitrator is an independent person or body officially appointed to settle dispute that is to say that arbitration is different from going to court and asking the court to enforce a legal claim against someone or against some company, or against the state itself. So arbitration is another way of enforcing a claim. Halsbury’s Laws of England

22 S. 13(1) op. cit. 23 Ibid. 24 Ibid.

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defines arbitration as the reference of a dispute or differences of a dispute between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction.25 So from the foregoing, arbitration must involve a reference of a dispute or difference, there must be two or more parties to the dispute, and the hearing must be in a judicial manner, by a competent person other than the court. It should however be noted that arbitration is different from mediation, negotiation and conciliation which are forms of alternative dispute resolution (ADR).

The Minister may refer the trade dispute to the Industrial Arbitration Panel when a mediator appointed by the parties under Section 3(2) of the Act could not resolve the matter26 or may refer such matter to an arbitration tribunal when he becomes aware of a pending dispute between the parties.27 This may entail his bypassing the use of a conciliator to settle the dispute. i. Industrial Arbitration Panel (IAP) Industrial arbitration panel is a statutory arbitration that arises out of a statute which provides that disputes of a particular class are to be settled by arbitration. Section 4 (2)(a) of the Act28 empowers the Minister to refer the dispute to the Industrial Arbitration Panel (IAP). Note that the Minister wields enormous powers under the law as he could, by virtue of Section 32 of the Act29 also appoint a board of inquiry when a trade dispute exists or is appointed to investigate the causes and circumstances and make a report thereon. The Minister also exercises enormous powers as to his options upon receipt of an objection from any party to the trade dispute. Under the law, he could forward such objection to the NIC or he could decide to redirect the award back to the IAP for reconsideration as in section 11(2)(d)30 This statutory arbitration will be under such heads as hearing, award and enforcement in a matter.

25 Halsbury’s Laws of England, 3rd Edition, Vol. 2 para. 2, p. 2. 26 Trade Disputes Act, s. 8(1). 27 Ibid, s. 4(1)(b). 28 Cap 432, Laws of the Federation of Nigeria, 2004. 29 Ibid. 30 Ibid.

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ii. Hearing Hearing here entails listening to the parties in a trade dispute. This dispute as earlier stated should be between employers and employees including their respective trade union, individually or collectively. The dispute should be connected with employment or non-employment of any person and terms of employment and physical conditions of work of any person Again, the dispute should be connected with the conclusion or variation of a collective agreement and indeed any alleged dispute.31Hearing of trade disputes by arbitration under the Trade Disputes Act follows certain hierarchy of procedure which is graphically represented in the following diagram.32

31 National Industrial Court Act (NICA) 2006, s. 54(1). The definition here is wider and supercedes the one in Trade Disputes Act 1990, as amended, S. 47(1).

32 This is derived from analysis of ss. 2(1), 3(1), (2), 4(1), 2(a), (b), (c), 7, 8, 11, 12, 32. For further reading see G.O.S. Amadi, A legal Guide to trade Unions, presented at a workshop on Alternative Dispute Resolution Organized by Arbitration and ADR in Africa, Abuja, July 6-7, 2009 by G.O.S. Amadi.

National Industrial Court

Minister of Labour

Industrial Arbitration Panel (IAP) (Arbitration Tribunal)

Board of Inquiry Conciliator

Mediator

Settlement of Disputes by Parties (Collective

Trade Dispute

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As can be shown in the above diagram, hearing in labour dispute begins at Industrial Arbitration Panel (IAP). This is a body which the Minister of Labour sets up33 to arbitrate in trade disputes. The composition of the Panel for the purpose of adjudication consists of the chairman, vice-chairman and not less than ten other members, all appointed by the Minister,34 albeit two members appointed, are each nominated by the parties representing their individual interest.

The IAP now constitutes as Arbitration Tribunal35 either of a Sole Arbitrator36 or Single Arbitrator,37 which will arbitrate between the parties. Either of the Arbitrational Tribunal is selected by the chairman from among members of the IAP. Constitution on Arbitration Tribunal of either a Sole or Single Arbitrator depends on the nature of dispute and at the discretion of the chairman While a Sole Arbitrator consists of a one-person, a Single Arbitrator is assisted by assessors to constitute the Arbitration Tribunal.38 On the issue of hearing, there are usually no technicalities as one would find in a formal Court, for the purpose of dealing with any trade dispute, the Arbitration tribunal may:

• require any person to furnish any such matter relating tot he dispute referred to it as it requires,

• require anybody to attend before it and give evidence, on oath, or affirmation, or otherwise.

• compel the production before it of books, papers etc for the purpose of enabling them to be examined or referred to,

• proceed in the absence of a party who has been duly summoned, or served with a notice to appear

• admit or exclude the public, or the press, from any of its sittings.

• Generally give all such direction and do all such things as are necessary or expedient for dealing speedily and justly with the matter referred.

33 TDA, s. 8 (2) 34 Ibid, s. 8(7) 35 Ibid, s. 8(7) 36 Ibid, s. 8(4)(a) 37 Ibid, s. 8(4)(b) 38 For further reading, see G.O.S. Amadi, op. cit, pp. 50-52.

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Summarily, the hearing is subject to the rules of natural justice. This means that the Arbitration Tribunal must act fairly, in good faith and without bias, and must afford each party the opportunity to adequately state his case.39

The absence of fair hearing may vitiate the proceedings of an Arbitration Tribunal. But an irregularity in constituting an Arbitration Tribunal will not be a valid ground for questioning its act, proceeding or determination of the matter.40 But that does not prevent the aggrieved party from appealing to the Minister. This necessarily happens after the tribunal has published the award before it becomes gazzetted. iii. Award The decision or judgment of the tribunal is called an award- The award must be in writing and must address the issues referred to the tribunal. The IAP is expected to consider and make its award on a matter before it within 21 days or such longer period as the Minister may allow in a particular case.41The award of a single arbitrator assisted by assessors is made by the arbitrator only. If the Arbitration Panel is made up of two or more arbitrators, the award is made by the majority in the event of a disagreement.42The IAP is expected to send its decision to the Minister and shall not communicate the award to the parties.43

The TDA enables the Minister to examine the award and, if he finds it desirable to do so, refer the decision back to the tribunal for reconsideration.44 Unless and until the tribunal reconsiders the award, the Minister may not exercise his power to communicate same to the parties or their representatives as well as publish it as required by the statute.45 The danger here is that if the Minister enjoys the sole right of determining whether an award is

39 Osborn’s Concise Law Dictionary, 8th ed., p. 225. 40 TDA, s. 11(4). 41 Ibid, s. 12(1)(a). 42 Ibid, s. 8(b). 43 Ibid, s. 12(1)(b). 44 Ibid, s. 11(3). 45 Ibid, s. 11(3)(a).

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wrongly or rightly made ingredients such as bias or favouritism will definitely be displayed.

When the Minister finally receives the award from the tribunal, he shall forthwith publish and give the parties or their representatives a notice setting out the award.46 The notice shall specify the time, not more than seven days from its publication, to enable any aggrieved party to give notice of objection to the award to the Minister.47If the notice of objection to the award is not made within the prescribed time, the Minister will then publish it in the Federal Gazettee. This legally confirms the award48.The probing question before us is, who actually determines the case of parties at the IAP.Is it the Minister or IAP itself? Again, as earlier noted, the Minister has the discretion to determine whether the award is reasonable or not. This has the negative effect of impinging or curbing the independence of the IAP to do their work effectively. Prof Agomo while describing the procedure at the IA Pascircuitous stated that:

The IAP does not make an award but a recommendation since it is the Minister alone who has power to confirm an award and thus make it binding upon the parties. This reduces the effectiveness of an award and makes the IAP look like an arm of government or university49.

iv. Enforcement The enforcement of the award made by the IAP against the party in breach is very weak. This is because unlike the formal Court that has an organized and practical method of enforcing any judgment of the court, that is not the same with the award made by an IAP. This observation is made in the face of the fact that failure to comply with the terms of an IAP award do not usually result in criminal liabilities against the party in breach.

Another disadvantage of the situation is that sometimes the party who has had an award made in his favour is at the whims

46 Ibid, s. 12(a). 47 Ibid, s. 12(2)(b) 48 Ibid, s. 12(2)(c), see Federal Ministry of Health v. National Association of

Nigerian Nurses and Midwives (1980-81) NICLR 18. 49 C.K. Agomo, The Report on the Evaluation of the IAP and NIC, October,

1998, p. 18.

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and caprices of the losing party. As a matter of fact, we see this exemplified in this country in cases where the Federal government and the trade Unions are at logger heads over certain issues More often than not, the awards are usually made against the Federal government and the trade unions in whose favour the award is made have no means of enforcing it. It degenerates to the unions getting frustrated as they are subjected to a long period of waiting hoping that the Federal government will abide by the terms of the award. Oftentimes, it becomes an indefinite wait which births the succession of the Government by another. And if the successor has a human face, it may refer to the award and comply to its terms.

However, when an award is made by the court in respect of an appeal before it, the terms therein contained become binding on the parties The award is like any other judgment of a court of competent jurisdiction and must be enforced It is contempt of court if the decision is not obeyed by the parties. Enforcement can be carried in the following ways:

(a) By cooperation of the parties, in particular the party who initiates the action. The judgment is enforced if he does everything he is required to do by the right of appeal, if he so desires to challenge the judgment.

(b) If the defeated party, say the defendant, refuses to abide by the judgment, then the victorious party i.e. the plaintiff, is required to obtain leave of court to enforce the judgment under the Sheriff and Civil Processes Act (Law). Here the court bailiff will be involved to levy execution on the defendant. The latter, may even be charged with contempt of court for his failure to obey the judgment of the IAP.50

D. Resolution by the Court The TDA does not specifically provide that an aggrieved party can appeal against an award either as made by the Tribunal or as considered by the Minister. What the law provides is that an aggrieved party who has objection can do so after the Minister has published a notice of the award, and within seven days of its publication. The Minister seems to be the final arbiter here.

50 Ibid.

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However, the Minister can exercise his discretionary power and refer a disputed award to the National industrial Court (NIC). For this to be done, the aggrieved party must have given his notice of objection within the seven-day stipulated time and in the manner51 specified in the publication.52 The Minister becomes functus officio once the NIC is seized of the dispute. Once such disputes get to the NIC, it ceases to be arbitration. It becomes a judicial hearing.

The National Industrial Court was established in 1 January, 1976 by virtue of section19(1) of the Trade Disputes Decree No. 7 of 1976. In 1992, the Trade Disputes Act (TDA) was amended by the Trade Disputes (Amendment) Decree No 47 of 1992 which later became the Trade Disputes Act (TDA) Cap 432 laws of the Federation 1990. In order to raise the status of the Court and to expand its jurisdiction to meet emerging challenges in industrial relations, the National Assembly in the exercise of its statutory duties enacted new National Industrial Court Act (NICA) on 14th June 2006 which was assented to by the then Nigerian President, Chief Olusegun Obasanjo. The Act therefore, takes its root from the powers derived by the legislators who made it from the constitution53. It was intended to be the “ultimate”54 and “final”55 court for the settlement of trade dispute in Nigeria.

Here the NICA creates a superior court of record which has exclusive jurisdiction in civil causes and matters relating to trade disputes.56 This later Act seems to have now rendered nugatory the powers of the Minister under the TDA to determine an award from an Arbitration Tribunal or refer same to the Court. The new Act provides that an appeal shall lie from the decisions of an arbitral Tribunal to the Court as of right in matters of disputes as specified in Section 7(1)(a).57 These matters relate to labour, including trade union and industrial relations as well as environment and conditions of work, health, safety and welfare of

51 Ibid, s. 12. 52 Ibid, s. 13(1). 53 The History of the National Industrial Court as posted on the court website:

http://nicgov.ng/history.html last accessed on May 8, 2008. 54 Trade Disputes Act, 1976 55 Ibid, ss. (11)(2), 15(2) 56 NICA, s. 7(1). 57 Ibid, s. 7(4).

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labour and matters incidental thereto58. The court is the final arbiter of matters within its

exclusive jurisdiction, but this is subject to the constitution of the Federal Republic of Nigeria 199959 as amended. However, appeal shall lie as of right of the court of Appeal only on question of fundamental right as contained in chapter IV of the constitution60. In other words, once a party, apparently, alleges a breach of his fundamental right in the hearing of his matter, then that is the ground of appeal against the decision of the court. In this regard, the Court of Appeal is the final arbiter of the trade dispute.61

It should be recalled that the diagram above, showing the hierarchy of procedure of arbitration of trade disputes is based on the provisions of the TDA. Now, when we compare this old Act with NICA, the new Act, it seems that the parties themselves can now appeal straightaway from the tribunal to the court.62 It seems that the Minister can no longer exercise the power of considering the award and determine whether to publish or refer it to the court. This seems implicit in the NICA which provides that for the purposes of an appeal, "… a party to an arbitral award shall be entitled to obtain a copy of the records of the arbitral proceedings and the award from the arbitral tribunal.63

Under the TDA, the arbitral tribunal sends the award to the Minister who then, after all consideration, publishes it in a federal Gazette confirming the award.64

But NICA does not seem to remove the powers of the Minister to apprehend disputes between the parties and refer then to the arbitral tribunal for settlement. However, any aggrieved party may appeal without any form of intervention by the Minister, to the court. However, it is worthy to note the significant improvement in trade dispute resolution generated by the amendment made by the Constitution of the Federal Republic of Nigeria (CFRN) (Third Alteration) Act No.3, 2010. It has

58 Ibid, s. 7(1)(a)(i)and(ii). 59 Ibid, s. 9(1). 60 Ibid, s. 9(2). 61 G. O.S. Amadi, op. cit, above n. 12, also, see Reuben O. Bashorum v. IAP &

Ors (1971) LD/105/71. 62 See p. 6, supra. 63 NICA, s. 7(4). 64 NICA, s. 7(5).

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invariably taken trade dispute to another level. To start with, in the composition of the court it constitutes a president and such number of judges as may be prescribed by an act of National Assembly.65 By Section 254(c)66, most of the controversies surrounding the status and jurisdiction of the National Industrial Court have been laid to rest. The court is vested with extensive powers over “labour”67 and can “make appropriate “orders decision, ruling, as well as enforcement of the award68,”and also “interpretation and application of amongst others any – term of settlement of trade union dispute…”69

Again, Part IV of the Trade Disputes Act relating to the National Industrial Court has been repealed70, and if any provision of the Trade Dispute Act is inconsistent with the provisions of the [National Industrial Court], provisions of the [latter] Act shall prevail71. Also for the purpose of exercising any jurisdiction conferred upon it by the Constitution or as may be conferred by an act of the National Assembly, the National Industrial Court shall have all the powers of the High Court.72 The powers enjoyed by the NIC are so wide that section 254(d)(2)73 further confers on it powers additional to those conferred by this section as may appear necessary. The jurisdiction of the court as provided under the Principal Act extends to the whole country, and accordingly, the president of the court is empowered to create by instrument judicial divisions of the court in any part of the federation and “may designate any such judicial division or part thereof by such name as he deems fit.74 Also unlike under the Trade Disputes Act, the court “shall be bound by the Evidence Act”, though it may depart from it in the interest of justice.

Most importantly, the court has been pulled out of the

65 S. 6 CFRN (Third Alteration Act), 2010. 66 Ibid. 67 Ibid, s. 254c(1)(a) –(d). 68 Ibid, s. 254c(4). 69 Ibid, s. 254c(1)(j)(i – vi). 70 NICA s. 36(1) – On Practice and Procedure. 71NICA, s. 53(2). also see Akintunde Emiola, Nigerian Labour Law, 4th edn.,

(Ogbomosho: Emiola Publishers Ltd, 2008) p. 517. 72 S. 254(d)(i) CFRN (Third Alteration) Act No. 3 of 2010. 73 Ibid. 74 NICA, s. 21.

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Trade Dispute Act and integrated into Nigeria regular court system. This means that the scope of the operation of the court is no longer limited to that provided under the Trade Dispute Act but expanded far beyond it to meet with the multiple challenges of trade dispute.

3. Conclusion Finally, trade disputes will always occur. The IAP in its present constitution is seriously handicapped to discharge its function effectively. The body lacks the independence required and expected of an adjudicatory body more so with the overbearing influence of the Minister on the duties of the IAP. However, it should be noted that though the IAP is bedeviled with enormous challenges, it should be noted that the simplicity of procedure at the arbitration is one of the major advantages which arbitration has over litigation in the regular courts particularly as they have a time frame within which to discharge any dispute before it. The procedure in the regular courts is governed by established standards which must be followed and this, in most cases, leads to unnecessary bureaucracy; speed is usually “crucified by unnecessary long standard procedure”. Again the parties under arbitration have a wider choice of procedure than in litigation, and each can represent himself or be represented by anyone of his choice who is not even a lawyer. The only snag in the discharge of their duty lies basically in the enforcement of award as earlier stated. In any case, the expansion of the powers of the NIC is quite apt at this point in time and a landmark under the Nigerian Labour Law. This would help prevent industrial anarchy, as the court would impact positively on the nation's security, socio-economic development, growth and stability The NIC of Nigeria has been put in place to effectively enhance the Nigerian dispute resolution mechanism and it is so far doing well.

To buttress the relevance of the NIC, it was held in the case of National Union of Hotels and Personal Services Workers vs. (1) National Union of Food Beverages and Tobacco Employees (2) UAC of Nigeria Plc (Owners of Mr. Biggs Restaurants)75, that the Industrial Arbitration Panel has original jurisdiction to entertain inter-union and intra-union disputes and

75 (2004) 1 NWLR (Pt. 2) 286.

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that in inter-union disputes and intra-union disputes, the jurisdiction of the National Industrial Court (NIC) is appellate and not original. The NIC dismissed the application.

NIC in its report further held that the decision of the Ministry of Labour or Industrial Arbitration Panel (IAP) is not final and conclusive. If mediation fails, there is conciliation. If conciliation fails, there is arbitration and if arbitration fails, there is adjudication in the NIC. Even if adjudication fails, there is appeal to the Court of Appeal. The relevance and importance of the NIC to the people lies more on the leverage they have to institute proceedings directly in the court. The fact however remains that enforcement of the law is the cornerstone of any legal system. It is therefore the duty of the Government to see that laws, including court judgments, are enforced. That is the hall mark of the rule of law.

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THE BAR AND THE BENCH AS AGENTS OF CONSUMER ADVOCACY IN NIGERIA ∗∗∗∗

Abstract

The complexity of the production process, the sophistication and quantity of products and services churned out daily and the glaring inequality in bargaining power between the consumer and the producer and provider of goods and services underline the need for consumer advocacy. Consumer advocacy is “the process of standing beside an individual or group and speaking out on their behalf to protect and promote their rights and interests’’1 in the area of goods and services. An advocate may be an individual (such as a friend, a family member, a lawyer, etc) or an organization (such as a trade or professional association, governmental agency, a non-governmental organization, etc.). This paper examines the role of one of such organizations, the Nigerian Bar. It argues that given the pride of place the legal profession enjoys in the society, the bar and the bench needs to be more proactive in the area of consumer advocacy.

1. Introduction …a country in which there is such a monumental degree of exploitation and total disregard for rights, health and interest of consumers. This is a society in which fake foreign labels are attached to local goods and products: in which expiry dates on expired products are routinely erased, and fresh ones pasted; in which unsold infested food is warmed over and retained indefinitely for sale to hapless victims instead of being thrown away: in which sawdust can be discovered in a newly opened tin of beverage and in which antibiotic capsules may contain talcum powder.2

This quotation by Sagay succinctly describes the contemporary Nigerian society. The Nigerian consumer is certainly in a precarious situation. More often than not, he is short changed by the producer of goods and the provider of services who inundate him with substandard products and shoddy services. Substandard ∗ E. L., Okiche, Lecturer, Faculty of Law University of Nigeria. Email:

[email protected]. 1 Consumer Advocacy- a definition available at http://www.cisia.org.au last

accessed 24/10/10 2 I. E. Sagay, quoted in F. N. Monye, Law of Consumer Protection (Ibadan:

Spectrum Book Ltd., 2003) p. xv.

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products include “fake and adulterated products, defective and inherently dangerous products, malfunctioning and poor quality products, foreign particles in especially drinks, extortionate and inflationary prices.”3 Shoddy services manifest in all areas of service delivery which include transport, power, communications, financial, professional, hotel and catering service. One is familiar with such things as unexplained flight delays in our airports, commuters who have to squeeze themselves into vehicles in excess of the authorized numbers the vehicles carry; or who are left stranded mid-way between trips with no fare refund in the event of break downs which are daily occurrences in the transport sector. Erratic power supply and excessive billing by the service providers in the power sector is no news in Nigeria. In the area of communications, inability to make calls or drop calls due to network failure, payments for services not rendered, inability to load recharge cards to mention but a few trail the industry. The consumer bears the brunt of all these problems. It is not only that, he does not get proper worth for his money. His safety, indeed sometime, his life, is compromised. As a result of illiteracy, poverty, ignorance of the protection the law affords him or even downright apathy, he rarely seeks redress. When he is exploited, which is always, he simply gnashes his teeth and tries to lick his wound. In all these, the consumer needs to be rescued. There is strong need for consumer advocacy. This paper seeks to examine the role the Bar and the Bench could play as agents of consumer advocacy in order to ameliorate the plight of the Nigerian consumer.

2. Conceptual Clarifications It is important to delimit the terms used in this paper in order to properly situate this topic.

The term “consumer”4 has acquired an elastic meaning as a result of the various attempts made by different authors and commentators to define it. However, two broad categories of meanings are deductible. The first group prefers to give the word a narrow and restrictive meaning. This group insists that for a person to be considered a consumer there must be a contractual

3 B.B. Kanyip, Consumer Protection in Nigeria: Law, Theory and Practice

(Abuja: Rekon Books Ltd, 2005) p. 3. 4 See Generally, Monye, op. cit., pp. 15-19, Kanyip, op. cit., pp. 11-26, Ikhide

Ehighelue, Consumer Protection Law (Warri: New Pages Law Publishing Co., 2004), pp. 5-10, Workshop Paper on the Reform of Consumer Protection Law by Nigerian Law Reform Commission, 2006., P. A. Aaaker and G. S. Day, Consumerism, 2nd edn. (New York: Free Press, 1974) p. xvii quoted in Monye, op.cit. above n 2, p. 16.

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nexus between him and the producer or service provider. Again, the producer must have acted in a business capacity and the buyer must have intended the goods or services for private not business use. For example, a consumer is defined as “a person who buys goods or service for personal, family or household use with no intention of resale,…”5 Thus, following this definition, the plaintiff in the case of Donoghue v. Stevenson6would not have been able to recover since there was no contract between her and the defendant as she was not the purchaser of the drink she took The second group, on the other hand, favours an extended meaning of the term. It insists that the word be given a generic and broad interpretation so as to encompass different categories of persons. This group accommodates not just the purchasers or the ultimate users of products or services as consumers but any person who the supplier contemplates might be affected by such goods or services. Thus a consumer:

Is any person, natural or legal, to who goods or services or credit are supplied by another person in the course of a business carried on by that other person, and includes any person who uses the goods or services or who the supplier ought to have in contemplation that will be affected by such goods or services.7

Some others in this group even equate consumers to citizens. According to Aaaker and Day, “consumer interest is involved when citizens enter into relationships with institutions like hospitals, insurances, the police force and various government agencies, as well as with business.”8 For Nadar “consumer should be equated with the word citizen so that consumer protection law will be regarded as an aspect of the protection of civil rights.”9 John Kennedy also agrees with this view. He says that “consumers include all of us, they are the largest economic group affecting and affected by almost every public and private economic decision, yet they are the only important group …whose

5 Bryan A. Garner, ed. Black’s Law Dictionary, 8th edn. ( USA: West Publishing

Co., 2004) p. 335. 6 (1932) A.C. 562 7 Workshop Paper, op. cit., p. 10. 8 Aaeker and Day, op. cit., p. XV11. 9As reported in D.W. Oughton, Consumer Law: Text, Cases and Materials

(London: Blackstone Press Limited, 1991) p. 1 quoted in Kanyip, op. cit., p. 12.

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views are not heard.”10In this paper, the term is construed widely. It would include the purchaser, the ultimate user as well as any person who the supplier ought to have in contemplation that might be affected by his goods or services.

Advocacy derives from the noun “advocate.” An advocate is “a person who pleads on behalf of another especially in a court of law, a person who speaks or writes in support of some cause, argument or proposal.”11 To advocate is to plead the cause of another or to intercede for him. Advocacy denotes “the act of pleading, interceding or championing the cause of another.”12 Correlatively, consumer advocacy is the act of championing or defending the cause of the consumer. It refers to actions taken by individuals or groups to promote and protect the interests of consumers. Advocacy aims at exposing unfair business practices or unsafe products that threaten the welfare of the general public. Consumer advocates use tactics like publicity, boycotts, letter-writing campaigns and law suits to counteract the financial and political power of the organizations they target.13 In a legal context, the word ‘’bar’’ has three possible meanings. It could mean the physical division of a courtroom between its working and public areas or the process of qualifying to practice law or the legal profession.14 However “bar” is used here to mean the legal profession. It refers to “the whole body of lawyers qualified to practice in a given jurisdiction.”15 The term encompasses lawyers who represent clients. The word “bench,” on the other hand, refers to “judges and magistrates”16i.e. the judiciary as a whole. The term is used to differentiate those lawyers who adjudicate and decide on the verdict from those who represent clients.17 This is the sense in which these words are used in this paper.

10 J. F. Kennedy’s address to the US Congress on 15 March, 1962 available at

http://www.consumersinternational.org/who-we-are/consumer-rights. Last accessed on 24/10/2010.

11 The New Webster’s Dictionary, (USA: Lexicon Publications, Inc., 2004) p. 12. 12 Ibid. 13 Consumer Advocacy Law & Legal Definition available at http://definitions.

uslegal.com/c/consumer-advocacy, last accessed on 25/10/2010. 14 The Bar, available at http://en.wikipedia.org/Bar-law last accessed 26/10/2010. 15 Black’s Law Dictionary, op. cit., p. 157. 16 The New Webster Dictionary op. cit. p. 90. 17 See http://en.wikipaedia.org/wiki/Bench, last accessed on 15/11/2010. Also

http://en.wiktionary.org/wiki/bench, last accessed 15/11/2010

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3. The Need for Consumer Advocacy The main objective of consumer advocacy is to ensure that the consumer is not exploited or gets redress when exploited. The consumer is susceptible to exploitation because of the disparity between him and the manufacturer or service provider. This disparity is seen in the areas of bargaining power between the two, knowledge concerning the characteristic and technical components of the goods or services and, finally, resources18 in the sense that the producer is financially more capable than the consumer. The Industrial Revolution brought with it advanced technology leading to explosion in the quantity and complexity of goods and services. The result of this is that the average consumer is overwhelmed by the sheer variety and sophistication of goods and services in the market. He needs expert knowledge to enable him appreciate some of these goods and services. The consumer is further confounded by the aggressive marketing and sales promotions embarked upon by producers and service providers which further compound his problems. The result of these discriminating and unfair market practices against the consumer is proliferation of low quality and unsafe products, unsatisfactory services, etc. The bottom line is that the consumer is always at the receiving end. So, even in advanced countries where the level of literacy and awareness is high, the consumer still needs an advocate to plead his cause. This is why there are voluntary and Non-Governmental Organizations,19 trade and professional bodies,20 regulatory agencies,21 etc which champion the consumer’s cause.

In the light of the above, one can then appreciate the need of the Nigeria consumer. His problem is compounded by illiteracy, poverty, ignorance and lethargy. As a result of illiteracy, many consumers cannot read instructions on labels, manuals, etc and so, cannot distinguish between genuine and fake products. They may not even know when labels have been tampered with. Poverty could induce a consumer to purposely go for a substandard product (for instance, drug) instead of the genuine one which usually costs more. Due to ignorance many people,

18 Kanyip op. cit., above n 3 at p. 3. 19 Such as Consumer International, (CI) Consumer Awareness Organization,

(CAO) Consumer Organization of Nigeria (CON) etc. 20 Nigeria Medical Association (NMA), Nigerian Bar Association (NBA),

National Union of Road Transport Workers (NURTW) etc. 21 Some of the Agencies are the Standards Organization of Nigeria (SON),

National Agency for Food and Drug Administration and Control (NAFDAC), Consumer Protection Council (CPC), National Insurance Commission (NAICOM), and Nigeria Communications Commission (NCC).

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even among the literate ones, are not aware of their rights. Many consumers do not know of the existence of laws on consumer protection22 and so cannot take advantage of them. Apathy on the part of the Nigerian consumer is seen from the fact that even those who are aware of their rights are reluctant to enforce same. An average consumer who buys a fake product will prefer to throw it away and buy another one, especially if the product is relatively cheap. The reasons for this might be the high cost of litigation both in terms of time and money, the ‘Nigerian’ factor or that consumers are simply not interested in enforcing their rights. All these bring to the fore, the need for consumer advocacy.

4. The Task before the Consumer Advocate As a result of the different roles played by lawyers who practice at the Bar and those who sit at the Bench, this will be taken from two dimensions.

4.1 The Bar The Nigerian Government demonstrates its interest in protecting the consumer by the various laws23 and agencies24 it has put in place to take care of the interests of the consumer. In addition to these, a consumer whose right is infringed upon could take a civil action ether in contract (if there is privity of contract) or in tort in the case of allegation of negligence.25Also there are consumer rights which are internationally recognized by governments and organizations such as the United Nations of which Nigeria is a member. These rights are reproduced hereunder:

a. The right to satisfaction of basic needs - to have access to basic, essential goods and services: adequate food, clothing, shelter, health care, education, public utilities, water and sanitation.

22 Some of the laws are, the Standards Organization of Nigeria Act 1971, (Cap.

S9 LFN 2004); the Weights and Measures Act, 1974, (Cap. W3); the Food and Drugs Act 1974, (Cap. F32(; the Consumer Protection Council Act 1992, (Cap. C25); the National Agency for Food and drug Administration and Control Act 1993, (Cap. N1); the Trade Malpractices (Miscellaneous Offences) Act 1993, (Cap. T10); the Food, Drug and Related Products (Registration etc.) Act 1993, (Cap. F33); the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions, Act 1999 (Cap. C34) and the Nigerian Communications Act 2003, (Cap. N33).

23 See supra note 22. 24 See supra note 21. 25 For details see Monye, op. cit., pp. 155-268, Kanyip. op. cit., Ikhide, op. cit.

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b. The right to safety - to be protected against products, production processes and services that are hazardous to health or life.

c. The right to be informed - to be given the facts needed to make an informed choice, and to be protected against dishonest or misleading advertising and labeling.

d. The right to choose - to be able to select from a range of products and services, offered at competitive prices with an assurance of satisfactory quality.

e. The right to be heard - to have consumer interests represented in the making and execution of government policy, and in the development of products and services.

f. The right to redress - to receive a fair settlement of just claims, including compensation for misrepresentation, shoddy goods or unsatisfactory services.

g. The right to consumer education - to acquire knowledge and skills needed to make informed, confident choices about goods and services, while being aware of basic consumer rights and responsibilities and how to act on them.

h. The right to a healthy environment -to live and work in an environment that is non-threatening to the well-being of present and future generations.26

The legal practitioner needs to be very familiar with these laws in order to be able to do the best for his client. For instance, he must know the proper head under which to file his clients claim. Our law reports are full of cases which could have been won but were lost because the lawyers who handled them lacked the necessary knowledge. A case in point is the issue of bailment. Here, Kanyip laments that, “it is in this regard that it is sad that our lawyers are not particularly conversant with the premises of bailment as to make any proper or rational use of it in litigation.”27 A brief discussion of some cases will help to buttress this point. In Leventis Motors v. Cyrus Nunieh28 proper use of bailment was made and it paid off. In that case, the respondent deposited his car at the appellants’ workshop for repairs. He collected his car but it broke down on his way home. He had to return to the defendants/appellants for further repairs. He was waiting for the repairs to be carried out when he discovered that his car had since been sold as scrap in an auction by the defendants/appellants. The 26 CI Website www.consumerinternational.org last accessed on 2/10/10. 27 Kanyip, op, cit., p. 188. 28 (1999) 13 NWLR (Pt.634) 235 CA.

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court of first instance found for him whereupon the defendants appealed. The Court of Appeal, dismissing the appeal held that: :I have no hesitation whatever in coming to the conclusion that the appellant as bailee of the respondent’s car for reward owed a duty of care to the respondent in ensuring that his car was returned to him…”29 It further held that:

Although bailment is quite often associated with a contract, an action against a bailee can, quite often be presented , not only as an action in contract, nor in tort but as an action on its own sui generis arising out of the possession had by the bailee of goods. The law of bailment therefore overlaps the categories of the law of contract, tort and indeed, property and a bailee’s duty to take care with regard to the subject matter of the bailment.30

Also, in Broadline Enterprises Ltd. v. Monterery Maritime Corporation,31 the appellant consigned 100,000 bags of crystal sugar to respondents for delivery from Rolterdam to Lagos for valuable consideration. The respondents, in breach of their duty of care as common carriers and bailees failed to deliver a total of 3,434 bags of sugar. The trail court dismissed the claim. The Court of Appeal equally dismissed the suit on appeal. The Supreme Court, however, allowed the appeal, holding that:

A plaintiff establishes a justiciable cause of action by providing a bailment on which a duty of care arises at common law on the part of the defendants not to be negligent in respect of the plaintiff’s goods independent of any contract and a breach of that duty32

The advantage of using bailment instead of any other head of claim is that liability is strict.33 It saves the plaintiff the onerous task of discharging the burden of proof in negligence.34 Another area where lawyers have failed to take advantage of the provisions

29 (1999) 13 N.W.L.R. (Pt. 634) 235 at 250-251. 30 Ibid., at 250. 31 (1995) 9 NWLR (Pt.417) 1 SC. 32 Ibid. at 5. 33 This is “Liability that does not depend on actual negligence or intent to harm

but that is based on duty to make something safe.” Black Law Dictionary op. cit., p. 934.

34 See Nigerian Ports Plc. v. Beecham Pharmaceutical PTE Ltd., [2005] Vol. 24 WRN, 38.

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of the law to advocate for the consumer is bankruptcy.35 The law has remained moribund despite the fact that it has been in our law books since 1979.36 It has hardly been tested in court.37 Despite the reasons given for this,38 our opinion is that ignorance of its relevance to consumer protection and lack of aggressiveness on the part of Nigerian lawyers are the major reasons. In America, for instance, the use of bankruptcy proceedings to reduce or eliminate consumer debt39 is widespread.40

Apart from being abreast with consumer laws, the Nigerian legal practitioner, as a minister in the temple of justice, needs to confront injustice against consumers frontally like in other jurisdictions. In America for instance, lawyers have been known to encourage and aid consumers to stand up for their rights even when consumers are reluctant to do so. A team of lawyers led consumers to go to court against Chase Bank of America when it reneged on its promise during a sales promotion.41 The bank had promised its consumers low interest rates of between 2.99% - 3.99% during the said promotion. It later raised the interest rate during the currency of the loans. There was a class action and the customers recovered. Also, policy holders of Hartford Insurance Co. of America42 took it to court for failing to give them notice when it charged them more premium based on information contained in their credit cards. The company opted for an out of court settlement with the consumers. It paid out sums ranging from $150 to $1000 to more than 700,000 consumers who met the terms of the settlement. These were possible because lawyers acted as consumer advocates.

Consumer conflicts could also be resolved through the regulatory agencies set up by the government. However, before

35 The Bankruptcy Act, Cap. B2, Laws of the Federation of Nigeria (LFN),2004. 36 See E. L. Okiche, ‘The Relevancy of Bankruptcy Law to Consumer

Protection” Unizik Law Journal ,Vol.7,No.1 2010, pp. 246-261. 37 Recently, Afribank (now Mainstreet Bank Ltd.) initiated bankruptcy

proceedings against a businessman, Cletus Ibeto. See Suit No. FHC/Bk/4/2010 available at http;//www.proshareng.com, last accessed on 28/10/2010.

38 Insolvency in Africa - The Nigerian Experience available at http://www. akinwunimbusar.com. last accessed on 28/10/2010.

39 Consumer debts are those incurred to service personal needs as opposed to business needs.

40 Bankruptcy Code Title 11 of the US Code. 41Chase Bank credit card class action available at http;//www.ssbls.com/cos,

accessed 28/10/2010. 42 Ibid., Hartford Insurance class action.

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this could happen, lawyers need to keep themselves abreast of the activities of such agencies. The good jobs such agencies as National Agency for Food and Drug Administration and Control (NAFDAC), Nigeria Communications Commission (NCC) Consumer Protection Council (CPC), Standards Organization of Nigeria (SON) etc are doing are lost on many people. Most of them have consumer complaints desks or departments where consumers could lodge complaints. A simple complaint made in writing or even orally could help resolve some issues as many manufacturers do not want adverse publicity Experience has shown that most manufacturers prefer out of court settlement. This is where Alternative Dispute Resolution (ADR) methods are needed and lawyers are best able to do this. These agencies also organize consumer events such as the town hall meetings and the Consumer Parliament of the Nigerian Communications Commission. Unfortunately, most lawyers do not know about these, let alone attend.

Finally, lawyers could also help the consumers’ cause by personally enforcing their rights as consumers. This will help to make manufacturers, distributors, retailers and service providers alive to their duties since some of them are ignorant of their obligations to consumers. Many people, including lawyers, do not know that a distributor, infact anybody in the chain of distribution could be held liable for defective production. In the case of Solu v. Total,43 the defendant who was a mere distributor was held liable for the sale of a defective gas cylinder. Most lawyers have the Automated Teller Machine (ATM) cards. How many of them bother to read the terms and conditions of the agreement between them and our banks before signing to obtain the cards? A look at some of the terms in the said agreement will help to buttress the point we are making:

Withdrawal of cash at the ATM shall be deemed to have concluded at the point when the ATM dispenses cash to you through the cash tray. The bank accepts no responsibility for any subsequent event occurring after cash has been so dispensed. You covenant and undertake that you shall be liable for all transactions on the card and the card will be at your own risk. You will be liable for any loss arising from the use of the card or PIN by any unauthorized person up to two working

43 Unreported, Lagos State High Court Suit No D/619/85, March 25, 1985.

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days after the Bank receives written notification of loss of card.44

Should legal practitioners accept these conditions without question? We think not. Lawyers should not allow themselves to be taken for granted, or else the society would be the worse for it.

4.2 The Bench From the time of Donoghue v. Stevenson45 some courts have shown their willingness to help the cause of consumers. Some decided cases are evidence of this willingness. In Osemobor v. Niger Biscuit Co. Ltd46 the manufacturer was held liable for the presence of a decayed tooth in the biscuit which caused nausea and vomiting. The plaintiff in Nigerian Bottling Co Ltd. v. Ngonadi47 was also able to recover for personal injuries and permanent disfigurement. Again, the consumer who, while drinking a bottle of malt noticed a dead cockroach in it succeeded in his claim against the producer in Dumuje v. Nigeria Breweries Plc.48 In the case of Bosede Olugbaju v. National Electric Power Authority (NEPA)49 (now power Holding Company of Nigeria) the plaintiff, a seamstress who got injured by a NEPA cable which snapped from a decayed wooden crossbar was able to recover. She was awarded the sum of N17,970,000 (seventeen million, nine hundred and seventy thousand Naira). This is the highest amount that has ever been awarded for personal injury by any court in Nigeria. In fact, the judgment has been acclaimed as “a celebration of the judiciary as it will encourage judges to perform similarly in deserving cases.”50 This remains to be seen. However, some courts have refused to change by remaining restrictive and unresponsive to consumer protection. In tort-based actions, the three ingredients which constitute negligence, namely: existence of duty of care, breach of the duty and consequential damage must be proved.51 There is no problem 44 An ATM Form from a Nigerian Bank. 45 Op. cit., above n 6. 46 (1973) NCLR, 382. 47 (1985) 2 N.S.C.C.753 or (1985) 5 SC 317. 48 Unreported Suit ENC/236/94, July 4, 2001. 49 Available at www.nairaland.com/nigeria/topic-69639.htm, last accessed on

13/10/2010. 50 Ibid. 51 See generally, I. P. Enemo, The Law of Tort (Enugu: Chenglo Ltd. 2007) pp.

19-89.

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with the first element since it has already been firmly established by a lot of cases that the manufacturer owes a duty of care to the ultimate consumer.52 Where the consumer usually has problems is in establishing that the defendant has breached the duty of care owed him. To succeed, he must show the particular acts or omissions of the defendant which amount to negligence.53 For instance, in a product liability case, he must prove, not only that the product was defective but that the defect was as a result of the manufacturer’s negligence54 and that his injury is linked to the product in question. In NBL Plc. v Audu,55 the plaintiff who took the defendant’s drink which he bought directly from the defendant felt something in his mouth. It turned out to be a dead cockroach. He took ill and was treated for shock and gastroenteritis. The court of first instance found for the plaintiff. The case was upturned on appeal. According to the Court of Appeal, there was no causal link between the injury and the drink. It further said that the respondent was -

Expected to avoid acts or omissions which he can foresee or contemplate would likely injure him. Hence if the respondent after the purchase but before the consumption of exhibit D, had stayed in a well-lit place an examined the bottle of drink, he would not have drank the beer which allegedly caused him an injury. 56

Adducing evidence acceptable to most courts in Nigeria is difficult for consumers since most of the time they cannot match the financial might of the defendants. Again the acts or omissions complained of are facts within the sole knowledge of the defendant The consumer’s position is further compounded by the defense of “foolproof system of production.” This describes the “defence raised by a defendant to the effect that his production process is perfect and, so, cannot admit of any defective or injurious products.”57 Since the case of Onyejekwe v. Nigerian Breweries Ltd.58 most courts have been convinced by this defence

52 Donoghue v. Stevenson Supra, NBC v Ngonadi, Supra etc. 53 Soreme v. Nigerian Bolting Co Ltd. (1997) 10 CCHCJ 2735 among others. 54 Ibid., 55 Nigeria Breweries Plc v. David Audu (2009) LPELR CA/A235/05. 56 Ibid. 57 Soremi v. Nigerian Bottling Co Ltd. (1997) 10 CCHCJ 2735 p. 31. 58 (unreported) suit No C/109/72 June 1, 1973.

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as evidenced by an array of cases.59There is the need for the courts to do away with this defence as it does not address the issues of whether the defendant was negligent or not as noted by the court in Okwejimonor’s case.60 In that case, the Supreme Court noted that the defendant’s evidence of their manufacturing process did not answer the life issue in the case, which was whether the defendants were negligent or not. This means that such evidence is usually merely diversionary. This attitude of the Supreme Court must be commended, even though the court did not make a direct pronouncement on the issue. Regarding the issue of consequential damage, the plaintiff must prove that the damage he suffered is a direct consequence of the defendant’s negligence61 or else, he will not succeed. Many actions have failed as a result of the difficulties plaintiffs have in linking the injuries they have suffered to the defendants’ acts or omissions. A way out of this predicament is to apply the doctrine of res ipsa loquitur62 in product liability cases. Unfortunately, most Nigerian courts are not minded to do this. In the case of NBC v Olarewaju,63 the court expressly said that “the doctrine of res ipsa loquitur does not apply to food poisoning cases. There is no law to the effect that if a consumer consumes rice and there after feels stomach discomfort, then viola! the rice is the cause of the discomfort…”64 The advantage of the use of this doctrine to the consumer cannot be over emphasized. This would mean that once the consumer proves the fact of the accident, the burden of proving that there was no negligence would be shifted to the defendant who is better able to do so.65

Finally, the adoption of a regime of strict liability will afford the consumer better protection as it will save him the problem of proving negligence which is onerous.66 Again, this is the position in other jurisdictions. In America and the United

59 The Guinness Casessuch as Boardman v. Guinness (Nig.) Ltd. (1980) NCLR

109, Okonkwo v. Guinness (Nig.) Ltd, supra. 60 Okwejiminor v. Gbageji & NBC [2008] 5 NWLR (Pt. 1079) 172. 61 Donoghue v. Stevenson, supra. 62 For a detailed discussion on this see, Ikhide Ehighelua “Burden of Proof in

Product Liability Suits and Res Ipsa Loquitur: The Need for Judicial Rethink in Nigeria.” Consumer Journal, Vol. 3, 2007, pp. 58-63.

63 Nigeria Bottling Co. Plc v. Demola Olarewaju [2007] 5 NWLR (Pt. 1027) 255.

64 Ibid. 65 Audu v. Ahmed (1990) 5 NWLR (Pt. 150) 287 CA. 66 Kanyip, op. cit., p. 295.

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Kingdom, liability is strict against manufacturers and providers of defective products and services. This has been so for decades now. In Greenman v. Yuba Power Productions Ltd, the Supreme Court of California held a manufacturer strictly liable for injuries to the consumer.67 It said that:

A manufacturer is strictly liable in tort when an article he places on the market knowing that it is to be used without inspecting for defects, proves to have a defect that causes injury to a human being … the purpose of such liability is to ensure that the costs of injuries resulting from defective products are borne by the manufacturer that put such product on the market rather than by the injured persons who are powerless to protect themselves.

Also in Abouzaid v. Mothercare (UK) Ltd,68 the claimant was held entitled to damages even though the supplier was not found negligent. This decision is plausible owing to the advanced technology being used in the production of consumer goods. Thus, a system that places strict liability on producers to ensure that consumers of his goods do not suffer injury will definitely serve a better purpose. Under contract, the consumer has also suffered some hardships as a result of the rigidity of some courts. The rule is that parties to a contract have the freedom to contract on any terms of their choice.69 They can exclude or limit any term in their agreement by means of exclusion or limitation clause, respectively, subject however, to some exceptions.70 The problem with this, however, is that as far as the consumer is concerned, there is disparity in bargaining power between him and the producer. Sometimes, the contracts might even be standard form contracts or contracts of adhesion.71 In some jurisdictions, legislation had been used to protect the consumer from draconic subjection to exclusion or limitation clauses.72 The South African Consumer Act,73 amongst

67 (1963) 27 Cal Reporter 697. 68 [2000] EWCA CV 348. 69 I. E. Sagay, Nigerian Law of Contract (Ibadan: Spectrum Books Ltd., 1985)

pp. 92-157, F. O. Ukwueze, “Unfair terms in Consumer Contracts in Nigeria; The Need for Stricter Statutory Control” in Consumer Journal, Vol. 3 2007 pp. 33-57.

70 Kanyip, op. cit., pp. 134, 137. 71 Ibid. 72 For instance, The Unfair Contact Terms Act, 1977 of the United Kingdom. 73 Consumer Protection Act (CPA), 66 of 2008. It will come into effect on April

1, 2011.

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other far reaching provisions made to protect the consumer, lists a number of terms considered unfair to the consumer. For instance, “any term or condition that has as its general purpose or effect to defeat the purposes and policy of the Act”74 is unlawful. “Exclusion or limitations of the suppliers’ liability for death or personal injury”75 by any term is unfair. In Australia, the law76 provides that unfair terms are void. By definition, a term is unfair when “it causes a significant imbalance in the parties’ rights and obligations arising under the Act,77 amongst other things. Thus, the court found a number of terms which would enable a supplier to unilaterally vary the terms of the contract, increase charges or vary its product - unfair and so void.78 This is not yet the case with Nigeria.79 For now, the judiciary is our only hope and the watchword should be judicial activism. The courts should be more proactive in this regard. The role of the judiciary in controlling necessary gap in case law is of utmost importance to guarantee balance of power between the producer and the consumer.

4.3 The Nigerian Bar Association (NBA) The NBA, as a professional body, also has a role to play in consumer advocacy. Mass education and enlightenment campaigns should form a regular part of the body’s activities. This will help to dispel ignorance which, as has been seen, is one of the factors inhibiting consumer protection in Nigeria. Like other professional associations, the NBA has a laid down procedure for dealing with dissident members.80 The Legal Practitioner Disciplinary Committee has had cause to sanction some members for unprofessional conducts. When this is done, the consumer’s interest is enhanced because the provision of shoddy services by lawyers is, to a large extent, checkmated. The question then is,

74 CPA s. 51. The Act has a “Black list” of terms which are always unlawful and

invalid and a “Grey list” which could be unfair, unjust and unreasonable. The grey list is further subdivided into “Fixed” list and “Presumed” list of terms.

75 CPA, s. 48. 76 Australian Consumer Law (ACL) which is set out in Schedule 2 of the

Competition & Consumer Act 2010. It applies to all consumer transactions for goods and services except financial services which is regulated by Australian Securities and Investments Commission Act.

77ACL, s. 24. 78 Director of Consumer Affairs (Victoria) v. AAPT [2006] VCAT 1493.

Available at http://www.austii.edu.au/cases/vic/VCAT last accessed 28/10/2010.

79 The Nigerian Law Reform Commission has recommended an amendment in this respect. See workshop paper, loc. cit., and pp. 30-33.

80 Legal Practitioners’ Act, Cap.L11, hereinafter referred to as LPA, LFN, 2004, s. 10.

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should we retain the immunity granted the barrister under the Act?81 According to the Act,

1) Subject to the provision of this section, a person shall not be immune from liability for damage attributable for his negligence while acting in his capacity as a legal practitioner and any provisions purporting to exclude or limit that liability in any contract.

2) Nothing in subsection (1) of this section shall be construed as preventing the exclusion or limitation of the liability aforesaid in any case where a legal practitioner gives his services without a reward either by way of fees, disbursement or otherwise.

3) Nothing in subsection (1) of this section shall affect the application to a legal practitioner of the rule of law exempting barristers from liability aforesaid in so far as that rule applies to the conduct of proceedings in the face of any court, tribunal or other body.82

The import of this section which codifies the common law rule in Rondel v. Worsley83 is that a legal practitioner is liable in negligence to his client. He is also not allowed to exclude or limit his liability to his client by contractual terms.84 However, the legal practitioner’s liability may be limited or excluded if he renders his services pro bono. Also, he cannot be held liable for anything done in the face of the court. A lot of reasons have been given to justify this immunity.85 First, as ministers in the temple of justice, the primary duty of counsel is to the court rather than to their clients. Immunity promotes this duty owed to the court. Abolishing it will elevate the duty to clients over and above that owed to the court. Also, as ministers, lawyers have a general duty

81 Id., s. 9. 82 Ibid section 9 (1) – (3). 83 [1969]1 AC 191. 84 Lawson v. Siffre [1932] 11 NLR; Raji v. X (A Legal Practitioner) [1946] 18

NLR 74. 85 See generally D.L. Carey-Willer “The Advocates Duty to Justice; where Does

it Belong” (1981). 97 LQR 107. B.B Kanyi, “Revisiting the Liability Question in the Provision of Legal Services. A Consumer Protection Perspective” in International Legal Research House, Burning Issues in Civil and Criminal Procedure and Practice. Essays in Honour of Honourable Justice Omotunde Ilori, Chief Judge of Lagos State (Lagos: ILRIT, 1999), pp. 334 – 345. Thalia Anthony “Australia Anachronistic Advocates’ Immunity: Lessons from Comparative Tort Law” (2007) 15 Tort L Rev. 11 at http://11SSrn.com/abstract=1000835 accessed 18/11/2010.

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to defend clients and, so, accept briefs indiscriminately.86 Removal of immunity will make them pick and choose non risky cases. Again, the immunity given to the legal practitioner is analogous to that given to the other participants in the legal proceedings (such as judges, prosecutor, witnesses, etc) and, as such, it would be discriminatory to remove it. Moreover, by the provision of the Act87 other sanctions apply to legal practitioners and those could be used to discipline erring members. The court need not come into the matter. Finally, the removal of immunity will open a floodgate leading to unending litigations and re-litigations.

On the other hand,88 the advocates of immunity removal argue that the above reasons do not justify the detriment to public interests that results from this immunity. They insist that holding legal practitioners to a minimum standard of care will ensure quality in the provision of legal services. Exposure to civil liability, will lead to a higher degree of exercise of care which will be beneficial to the overall administration of justice. For instance, improved standards would ensure that innocent persons are not convicted. Also, the legal profession is not different from other professions (such as the medical profession) where members are held liable for negligence. It has since been established that a person who negligently performed a professional or other duties he had undertaken to do could be sued in tort for negligence.89

Again, disciplinary measures put in place by the Act are merely self-regulatory measures which do not provide relief for clients who have been short changed nor are they substitutes for independent judicial intervention. The removal of immunity will bring an end to the anomalous exception to the basic rule that where ever there is a wrong, there should be a remedy. The issue of barristers not being able to choose their clients does not apply to Nigeria as a result of the fact that here in Nigeria, a legal practitioner is both a solicitor and an advocate. Concerning the duty of counsel to being to the court rather than to his client, one can say that the two are not mutually exclusive. Besides, no court can hold that a counsel who does his duty to the court to the detriment of his client is negligent. “Indeed, if the advocate’s conduct was bonafide declared by his perception of his duty to the court, there would be no possibility of the court holding him to be

86 This is the so called “cab rank” rule which imposes obligation upon a

barrister (but not upon a solicitor) to accept instructions from whoever wants to engage his services in the area of law in which he practices even if he disapproves of the person or his case.

87 LPA, s. 10 88 Supra note 91. 89 Headley Byrne & Co. Ltd v Heller & Partners [1964] AC 465.

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negligent.”90 Moreover, the fear of endless litigation and re-litigation which would follow the removal of immunity has not proved to be true given the positions in jurisdictions where immunity has been abolished.91

Our opinion is that the immunity granted the legal practitioner does not serve the interest of the consumer in this era and time. It has outlived its usefulness. We agree with their Lordships in Hall’s case92 that the policy concerns and circumstances upon which Rondel’s case93 was founded were legitimate in 1967 but that these have since changed. According to them:

The world has changed since 1967….Today, we live in a consumerist society in which people have a much greater awareness of rights. If they have suffered a wrong as a result of the provision of professional services, they expect to have the right to claim redress. It tends to erode confidence in the legal system if advocates, alone among all professional men, are immune from liability for negligence.94

The immunity has to be done away with in order to keep lawyers on their toes.

5. Conclusion From the foregoing, it would be seen that the Nigerian consumer is indeed in dire need of rescue more than his counterpart in developed nations. In this era of globalization, no nation can afford to stand still while others march forward. The Nigerian consumer needs to be woken up from his apathy. The Bar should march its force with those of other agents of consumer advocacy to enable the nation achieve the desired level of consumer protection.

90 Per Lord Steyn in Arthur J.S Hall (A Firm) v. Simons (2002). I AC 615. 91 For instance immunity was abolished in USA in 1979 Ferri v. Ackerman, 444

US 193 (1979): England 2002, see Arthur J.S Hall (A Firm) v. Simons supra, New Zealand ,2005, see Lai v. Chamberlains [2005] NZCA 37 upheld by the Supreme Court of New Zealand in [2006] NZSC 70.

92 Arthur J.S Hall (A firm) v Simons and Barratt v. Ansell & Ors v. Scholfield Roberts and Hall[2000] UKHL 38: (2007) 3 ALL ER 673 available at http://www.bailli.org/uk/cases//UKHL /2000/38.html last accessed on 20/11/2010.

93 Rondel v. Worsley, supra. 94 Per Lord Steyn, in Arthur J.S Hall v. Simons, supra.

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EXECUTIVE MODIFICATION OF EXISTING LAWS UNDER SECTION 315 OF THE 1999 CONSTITUTION∗∗∗∗

Introduction The introduction of a new Constitution generally necessitates measures to adapt the existing laws and bring them into conformity with the new legal order. The adaptation may be minor and simple, either changing the names, titles or designations or substituting appropriate functionaries1 in an existing law; it may of course be extensive, deleting, amending or repealing an existing law.2 The adaptation of an existing law is strictly a legislative function. Because it requires prompt action which the cumbersome nature of the legislative procedure may not produce, it has become both expedient and desirable for most countries3 to give this adaptive power to the President or Head of State, i.e. to the executive.4

Consistently with this practice, the 1999 Constitution empowers the President or Governor to make such modifications in the text of an existing law as he considers necessary or expedient to bring that law into conformity with the provisions of the Constitution.5

Existing laws are laws which were in force immediately before the coming into force of a particular Constitution. Such laws under the 1999 Constitution may be divided into two groups:

a) Laws relating to matters over which the National Assembly has legislative powers (Federal laws).

b) Laws relating to matters over which a State House of Assembly has legislative powers6 (State laws). In Governor of AkwaIbom State v Umah,7 the Court of Appeal held that the Local Government Edict of Akwa

∗ Miriam Chinyere Anozie, Senior Lecturer, Faculty of Law, University of

Nigeria, Enugu Campus. 1 See A.G. of Ogun State v. A. G. of the Federation (1982) 1-2 S.C. 13. 2 Repeal of the Petroleum (Special) Trust Fund PTF Decree No 25 of 1994. 3 See the Constitutions of some Commonwealth countries, i.e. The Constitution

of the Federal Republic of Nigeria, 1999, S. 315. The Constitution of Islamic Republic of Pakistan, Art. 268(2).

4 B. O. Nwabueze, The Presidential Constitution of Nigeria (London: C. Hurst & Co., 1982) p. 171.

5 The Constitution of the Federal Republic of Nigeria, 1999, S. 315 (2). 6 J. O. Akande, Introduction to the Nigerian Constitution 1979 (London: Sweet

& Maxwell, 1982) p. 274. 7 [2002] 7 NWLR (Pt 767) p. 738.

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Ibom State, 1988 came into force on 1st January 1988, and was in operation in the State when the 1999 Constitution came into operation on 29th May 1999. By virtue of section 315(4)(b) of the 1999 Constitution the Edict became an existing law.

Section 315 of the 1999 Constitution, (hereinafter referred to as the Constitution) confers on the President the power to modify federal laws while a State Governor similarly has the power to modify state laws. This implies that the President or a Governor has been given legislative functions to perform without the assistance of the National Assembly or the appropriate State House of Assembly.

It depends on the provision of a given constitution whether the adaptation of the existing laws can be done at any time during the life of that constitution or within a limited time. For instance, the 1963 Republican Constitution of Nigeria provided that the adaptation could be done validly only during the three years immediately following the date it came into force.8 The 1999 Constitution provides that the power is exercisable "at anytime" with no express limitation as to time.9 But a time limit may be inferred from the fact that the provision conferring it appears under the part of the Constitution headed ‘transitional provisions’. This is because a provision designed to facilitate the transition from an old legal order to a new legal order must be temporary in nature and for a short period of time.

The aim of this work is to study the constitutional provision on the modification of existing laws in Nigeria in order to ascertain the limits within which the President or the Governor can modify or adapt an existing law within the scope of section 315 of the Constitution.

a) Nature and Scope of President's or Governor's Adaptive Legislative Power

Section 315 of the Constitution empowers the President or a Governor to make an order modifying an existing law. By this provision, the President can modify any Act of the National Assembly and any other law respecting any matter on which the National Assembly is empowered by the Constitution to make laws. For instance, matters in the exclusive and concurrent 8 The Constitution of the Federal Republic of Nigeria, 1963, section 156(2). 9 See A.G. Abia& 35ors v. A. G. Federation (2003)13 NSCQR 592 where it was

held that it is obviously now deliberate that section 315 of the 1999 Constitution has no limited time.

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legislative lists are within the legislative competence of the National Assembly, and any law relating to them may be modified by the President. Also, the Governor, empowered to modify an existing law relating to a subject matter on which the House of Assembly is authorized to make laws, can modify laws on the concurrent and residual matters. It is important to note that laws made during a military regime by the Federal Military Government on any matter which the Constitution has now made exclusive to the State Government are by virtue of section 315( 1) (b) deemed to be state laws. They can, therefore, be modified by a Governor and not by the President. In Attorney-General of Lagos State v. Attorney-General of the Federation,10the Federal Military Government passed the Nigerian Urban and Regional Planning Decree No. 88 of 1999 for the entire Federation, ona residual subject matter under the 1999 Constitution. On the coming into effect of the 1999 Constitution, the above law became an existing law by the virtue of section 315 of the Constitution. The question that came before the Supreme Court in this case was whether the above law should be regarded as an Act or a Law.

The Supreme Court held that it was deemed to be an Act of the National Assembly which by the Constitution it could make, under its residual power, but for the Federal Capital Territory, Abuja only. It was also deemed to be a Law of the State House of Assembly which by the Constitution it could make, under its residual power, for the respective State.

As a Law in Lagos State, the Governor is the appropriate authority, who can by order make such modifications in the text of Decree No. 88 of 1992, in the manner he considered necessary or expedient to bring it into conformity with the provisions of the Constitution. He may do so by only omitting all the provisions relating to the Federal Government or may repeal the entire law as it applies to Lagos State according to section 315(4)(c).

But where the subject matter of an existing law is in the concurrent legislative list, then the law will be regarded as a

10 [2002] 12 NWLR (Pt. 833) p. 592. See also Fawehinmi & Ors., v Babangida

& Ors(2003)13 NSCQR p. 592 where it was held that since the 1999 Constitution made the tribunals of inquiry a residual subject matter, that the Tribunals of Inquiry Act 1966 promulgated by the Federal Military Government for the entire Federation under the enabling law is an existing law pursuant to Section 315 of the 1999 Constitution and is deemed to be an Act enacted by the National Assembly for the Federal Capital Territory Abuja only and a Law enacted by a State House of Assembly under the residual powers of both legislatures.

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federal law or a state law. It is federal law if it is promulgated by the Federal Military Government even if for the benefit of the States. In Attorney-General of Ogun State and Others v. Attorney-General of the Federation,11 the adaptations made by the President in the Public Order Act, an existing law on a concurrent matter enacted by the Federal Military Government, were challenged by the State Government as unconstitutional, and an invasion of the legislative powers vested in the National Assembly and House of Assembly. They also contended that the Public Order Act, having been enacted for the benefit of the State, took effect as a State law. The Supreme Court held that since the Act was enacted by the Federal Military Government it took effect not as a State law but as a federal law and is, therefore, deemed to be an Act of the National Assembly. Being an Act of the National Assembly, the appropriate authority to make such modifications or changes in its provisions is the President under section 274 subsection (4) (c) of the 1979 Constitution.

Where the existing law passed by the Federal Military Government was on a subject matter which exceeded the powers conferred on, and the scope of the legislative competence of, the National Assembly under the Constitution, the President must modify the law to bring it in conformity with the Constitution. If the President fails to do so, the law cannot be executed for unconstitutionality. For example, in Togun v. Oputa (No. 2)12, where the Tribunals of Inquiry Act13 in its section 1(1) authorized the President to constitute a tribunal to inquire into any matter or thing or into the conduct or affairs of any person, the Court of Appeal held that the Constitution conferred no such powers due to the limitations in sections 4 and 5 of the Constitution. Cap. 447 was therefore void for inconsistency with the Constitution. The Court held further that, had the President exercised his powers under section 315 of the Constitution to modify the statute, limiting it to matters and things within the legislative competence of the National Assembly, it could have been saved. For then in the process, the offending expansive powers could have been removed, limiting the statute to the scope of the legislative competence of the National Assembly. But, he did not. As it is, not having been modified to bring it into conformity with the provisions of the Constitution, it stood invalidated, being

11 (1982) 1-2 S.C. 13. 12 [2001]16 NWLR (Pt 740) p. 597. 13 Cap. 447, Laws of the Federation of Nigeria, 1990.

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inconsistent with sections 4 and 5 of the Constitution. The question which might be asked is: What sort of

modifications are allowed? Section 315(4)(c) of the 1999 Constitution provides that "modification" includes addition, alteration, omission or repeal. Accordingly, the modifications allowed are not limited to minor changes such as altering names, dates and titles,14 but extend to major changes like deleting some sections of a law, or substituting an old section with a new one15 or completely repealing portions or sections of an existing law.16 In Attorney-General of the Federation v Attorney-General of Abia State & 35 others,17 the Supreme Court held that the appropriate authority in respect of Cap. 16, a law of the Federation, is the President. Thus, the President has constitutional power, by order, to modify Cap. 16 either by way of addition, alteration, omission or repeal, to bring it into conformity with the Constitution.

It is noteworthy that whereas section 274(2) of the 1979 Constitution provided for "such changes", section 315(2) of the 1999 Constitution provides for "such modifications" in the text of an existing law as he considers necessary or expedient to bring that law into conformity with the provisions of the Constitution.

It has been argued in respect of the 1979 Constitution that since the words 'such changes' were used only in section 274(2) the expression "such modifications" would be construed to permit only clerical or verbal changes like changing names, titles and designations and substituting appropriate functionaries. It does not authorize the repeal or the deletion of the main text of any existing law.18 However, that argument cannot be sustained in view of the fact that section 274(4) (c) of that Constitution defined "modification" to include “addition, alteration, omission or repeal”. Therefore, “such modifications" as were considered necessary under section 274(1) could be the “repeal" of a law itself or a section of it.

That Nwabueze's argument cannot be sustained is now borne out by section 315 of the 1999 Constitution which has repealed section 274 but replaced "such changes" in section 274(2) with "such modifications" in section 315(2). The

14 Samuel Igbe v. The Governor of Bendel State (1981)1 N.C.L.R. 183 15 A.G. of Ogun State v. A. G. of the Federation (1982) 1-2 S.C. 13. 16 Usman Mohammed v. A. G. of Kaduna State (1981) N.C.L.R. 117. 17 15(2002)10 NSCQR p. 163. 18 Nwabueze, Federalism in Nigeria under the Presidential Constitution, op. cit.

at p. 352.

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implication is quite clear that the President's or Governor's adaptive power in this 4th Republic even under section 315(1) is not limited to only clerical or verbal changes but include repeal and deletion.

b) Limitations on the President's or Governor's Legislative Power

From the provisions of section 315 of the 1999 Constitution, the power to modify an existing law given to the President, in the case of Federal laws, or Governor, in the case of State laws is limited in two main respects, namely:

i. Sections 4(1) and (6) of the Constitution limits the power of the President by requiring him to adapt the laws so as to make them conform with the constitutional division of legislative power between Federal and State legislatures. For example, a decree which applied to all parts of the country on a matter that is on the concurrent list should be modified so as to apply as an Act of the National Assembly made within the legislative authorities of the central legislature.

ii. The primary purpose of the change or modification must be to bring the law into conformity with the Constitution. Therefore, if the law is not in any way inconsistent with the Constitution, there will be no change or modification. Where there is inconsistency, the change or modification should not go beyond making the law conform to the Constitution. In Adesoye v Governor of Osun State,19the Supreme Court held that by virtue of section 315(2) of the 1999 Constitution, the Governor of a State is allowed to make orders or modifications in the text of any existing law deemed to be a law made by the House of Assembly of that State as considered necessary or explicit to bring the existing law into conformity with the provisions of the 1999 Constitution.

The second limitation should not be interpreted to mean that the President or Governor is not allowed to authorize changes in the substance or policy of the law. He can change the substance or section of an existing law which conflicts with the Constitution. Examples of this are provisions which violate human rights guarantees or the federal character of the country. But this limitation implies that the President or Governor shall not, in the exercise of his adaptive power, act contrary to the provisions of the Constitution. This was illustrated in Pakistan in 1963. In

19 [2005]16 NWLR (Pt. 950) p. 1.

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Hague v Chowdhury,20 Article 274(3) of the 1962 Constitution of Pakistan empowered the President to "direct or order that the provisions of the Constitution shall have effect subject to such adaptations as he may deem necessary and expedient". The Pakistan Constitution also provided that a member of the National Assembly appointed a Minister will vacate his seat. The President appointed two members of the National Assembly as Ministers and since he wished them to retain their seats in the Assembly, he used his adaptive power to amend the provisions of the Constitution which he found inexpedient in this case. The amendment was declared null and void by the court for, if allowed, it would have enabled the President to alter a fundamental provision of the Constitution without resorting to the special amendment procedure.

Also the President should not use his adaptive power to modify an extinct or obsolete law, as this will mean that the President is usurping a legislative function which is contrary to the doctrine of separation of powers embodied in our Constitution. This was what happened in 2004 when President Obasanjo modified the Emergency Powers Act 1961 an obsolete law which was at the time removed from the laws of the Federation by the Law Review Commission. He modified the law in order to declare a state of emergency in Plateau State. His action was wrong; the appropriate thing he would have done was to ask the National Assembly to pass a new Emergency Powers Act which would empower him to declare the State of emergency.

c) Separation of Powers In order to understand perfectly, why it is possible for the President or Governor who is a member of the executive arm of government, to exercise legislative functions under the Constitution, we have to discuss briefly the doctrine of separation of powers. The doctrine simply means that the governmental powers of a country are divided between three branches of government to wit: the legislature, the executive and the judiciary.21 The division of powers is made in such a way that each branch is independent of others and none of the branches should interfere with, or control, the exercise of powers or functions which properly belong to the other, but each branch

20 Times Law Report 22 Nov., 1963. 21 N. Parpworth, Constitutional and Administrative Law (London: Butterworths,

2000) p. 18.

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could act as a check on the other.22 Over the years, it was noticed that the application of the pure doctrine of separation of powers was impossible, thus, the doctrine has been modified by the theory of checks and balances. Under this current arrangement, each branch of government is given the power to exercise a degree of direct control over the others by authorizing it to play a part, although only a limited part, in the exercise of the others’ functions.23 The modified doctrine of separation of powers has been adopted by the 1999 Constitution. Under the Constitution, the legislative powers are vested in the legislature,24 the executive powers are vested in the executive,25 the judicial powers are vested in the judiciary,26 and there are in-built checks and balances. The above principle has been given judicial pronouncement in Paul Unongo v Aper Aku and others,27where Kayode Eso, J.S.C., declared as follows:

The Constitution of the Federal Republic of Nigeria 1979 which is hereinafter referred to as the Constitution is very unique compared with the previous Constitutions, in that the executive, the legislature and the judicature are each established as a separate organ of government. There is what can be termed a cold calculate rigidity in this separation, see sections 4, 5 and 6 of the Constitution which establish the legislature, the executive and the judicature respectively. The real connecting link among these three is that they provide checks and balances on one another. But though there are these checks and balances one cannot and must not usurp the functions of the other.28

Under the doctrine of separation of powers the three branches of government are independent, equal and co-ordinate. No branch is controlled by the other, although each acts as a check on the other.

22 M. E. Joye. And K. Igweike, Introduction to the 1979 Constitution (London:

The Macmillan Press Ltd, 1982) p. 136. 23 This is why we have provisions in our Constitution which empower the

executive arm of government to exercise some legislative functions i.e. ss. 32, 58, 59, 100 and 315 of the 1999 Constitution.

24 S. 4 of the 1999 Constitution. 25 S. 5, Ibid. 26 S. 6, ibid. 27 (1983)2 S.C.N.L.R., p. 332. 28 Ibid., p. 361

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d) Application of Section 315 of the 1999 Constitution Section 315 of the Constitution and its variant forms in earlier Constitutions have been construed and applied by the courts in a number of situations. Examples include:

a) the adaptation of the Public Order Act, 1979; b) the repeal of the Petroleum (Special) Trust Fund (PTF)

Decree 25 of 1994 by President Obasanjo; c) Modification of Allocation of Revenue (Federation

Account, etc) Act 1990 as amended by Decree (No. 106) of 1992;

d) the amendment of Local Government Laws, and e) the adoption of Sharia law.

(a) The Public Order (Adaptation) Act, 1979 The Public Order Act 1979 was made by the Federal Military Government to apply to the whole country, and replace the divergent state laws on the subject. It was, therefore, an existing law under section 274 of the 1979 Constitution. During the Second Republic, the President, acting under Section 274(4)(c) of that Constitution,29 sought to adapt the Public Order Act. He modified section 1 by:

a) substituting "Commissioner of Police" for "Military Administrators",

b) substituting a new subsection (5) for the existing subsection, and

c) deleting the whole of subsection (6).

Also, section 4(3) was modified by the deletion of the words "after consultation with the Military Administrators" and substitution therefore of the words "with the concurrence of the Governor of the State". In section 6(2), the "Attorney-General of the Federation" was substituted for the "Attorney-General of the State" and in section 12, the definition section, certain consequential amendments were made.

Finally, new sections which conferred specified powers on the Minister charged with the responsibility for police affairs were substituted for sections 10 and 11.

Being dissatisfied with these modifications in the Public Order Act 1979, the then Governments of Ogun State, Bendel State and Borno State challenged their validity in the Supreme Court, and the three cases were consolidated into one case.30The State Governments contended, inter alia, that the adaptations 29 This section is similar to s. 315 of 1999 Constitution 30 A.G. of Ogun State &Ors v A.G. of Federation (1982) 1-2-2 S.C. p. 13.

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were unconstitutional and in excess of the powers vested in the President by section 274 of the 1979 Constitution. They also contended that the Order made by the President was a plain invasion of the legislative powers vested in the National Assembly and the State House of Assembly. The State Governments contended further that the Public Order Act, 1979 was a State law.

In deciding the above case, the Supreme Court had to answer the question whether the Public Order Act 1979 No. 5 was, before the 1st of October, 1979, the date of coming into force of the 1979 Constitution either a Federal legislation or a State legislation. The Supreme Court held that since the Public Order Act was passed by the Federal Military Government by the constitutional powers conferred on it by section 1(1) to (4) of the Constitution (Basic Provisions) Decree, 1975 No. 32, as a uniform legislation for the whole country to replace the divergent State laws on the subject, it took effect as a federal legislation. This was because the maintaining and securing of public safety and public order was concurrent to both the federal and regional Governments under the 1963 Constitution, being a matter in the concurrent legislative list, i.e. items 18 and 29. Consequently, on 1st October, 1979 when the 1979 Constitution came into force, the Public Order Act (No.5 of 1979), as an existing law by virtue of the provisions of section 274(4)(b) of the Constitution, took effect as an Act of the National Assembly under the provisions of section 274(1)(a) of the Constitution. This was because it was a law the National Assembly had power to enact by virtue of the provisions of sections 4(2) and 11 (1) of the Constitution.

The next question answered by the Court was whether the Public Order Act was an existing law within the context of the Constitution. The Supreme Court held, rightly, it seems, that the Public Order Act was an existing law because under section 274(4)(b) of the 1979 Constitution, the phrase "existing law" was defined as any rule of law or any enactment or instrument whatsoever which was in force immediately before 1st October 1979. Thus, by virtue of section 274(1)(a) of the 1979 Constitution, the Public Order Act became an Act of the National Assembly.

The Supreme Court also answered the question whether the President was right in substituting (or adapting) "the Commissioner of Police" in the 1981 Public Order Act for "the Military Administrator" wherever the latter expression appeared in the 1979 Public Order Act and whether the President was also right in substituting "the Attorney-General of the Federation" in

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the 1981 Public Order Act for "the Attorney-General of a State" wherever the latter expression appeared in the 1979 Public Order Act. The Supreme Court held, correctly, that the President was not wrong in failing to retain the phrases "Governor" and Attorney-General of the State in the said Act because under a federal Constitution, the President could not validly or lawfully impose such duties or obligations or rights which could arise under the Public Order Act on a State Governor or State functionary.

Finally, the Supreme Court considered the question as to who was competent under the 1979 Constitution to adapt the Public Order Act, 1979. Having held that the Act was an existing federal legislation, the Supreme Court had no hesitation in holding that the President was the appropriate authority to adapt the Act by virtue of section 274(4)(a)(i) of the 1979 Constitution. The Court further maintained that the President had the power under section 274(2) of the Constitution to make such changes in the text of the Act as he considered necessary or expedient to bring it into conformity with the provisions of the Constitution. In making these changes in the text of the Act, the President could modify the Act within the limits prescribed by the Constitution.

(b) Repeal of the Petroleum (Special) Trust Fund (PTF) Decree No. 25 of 1994

In 1994 the Petroleum (Special) Trust Fund Decree was enacted by the Federal Military Government. Under this law was established the Petroleum (Special) Trust Fund into which should be paid all the monies received from the sale price of petroleum products less the marketer’s margin. Pursuant to that, the Federal Military Government established a board known as the Petroleum (Special) Trust Fund Management Board which would general control of the Fund. The Board was made up of 10 members appointed by the Federal Military Government.

On June 29, 1999, which was precisely one month from the date he assumed office, the President dissolved the Board of the Petroleum (Special) Trust Fund (PTF) and appointed Dr. Harouna Adamu the Sole Administrator of the Fund with mandate to oversee the systematic and orderly winding down of the organization and its activities.

The dissolution of the PTF by the President was informed by the belief that the provisions of Decree No. 25 of 1994 were clearly in conflict with the Constitution and needed to be brought into conformity with it. For example, section 1 (1) of the Decree which provided that all monies received from the sale of

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petroleum products less approved production cost per litre were to be paid into the Petroleum (Special) Trust Fund created by the Decree under section 2 was clearly a violation of sections 80 and 162(1) of the Constitution.

Section 80(1) provides that: All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation.

Even if it is argued that the Petroleum (Special) Trust Fund was a public fund as provided above, the Decree still contravened section 80(3) and (4) of the Constitution, because these two subsections provide that no money will be withdrawn from any public fund of the Federation except the issue of that money has been authorized by an Act of the National Assembly and in the manner prescribed by the National Assembly. The problem with the Petroleum (Special) Trust Fund is that though it is a public fund, its control is not under the National Assembly. What the President could do, acting under section 315 of the Constitution, was to place the Fund under the authority of National Assembly by requiring that no kobo out of it should be spent except with the authority of the Act of the National Assembly or to dissolve the Fund as he did. Therefore, it is important to note that the violation of the Constitution here was not the continued funding of the Fund but the continued control by the Board of Funds that were supposed to be paid into the Federation Account or Consolidated Revenue Fund. This is because by this control the Board usurped the power of the National Assembly since it controlled the funds which should have been under the control of the National Assembly had the money been paid into the Federation Account. Therefore, its establishment was unconstitutional.

It may, of course, be argued that, the PTF Decree having become an Act of the National Assembly on the 29th of May 1999 by virtue of Section 315 of the 1999 Constitution, there was no breach of section 80 of the Constitution.31 I strongly disagree with this view because the PTF Act enabled the Board to control money paid into the Petroleum Trust Fund (which could be referred to as a public fund). This is, of course, contrary to the provisions of section 80(3) and (4) of the Constitution which

31 The Guardian, July 8, 1999, p. 8.

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clearly stipulates that the money paid into the Consolidated Revenue Fund or any other public fund must be subject to the control of the National Assembly.

Section 162(1) stipulates that the Federation shall maintain a special account called the Federation Account into which shall be paid all revenues collected by the Government of the Federation. Section 162(3) also provides that:

Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each state on such terms and in such manner as may be prescribed by the National Assembly.

Thus the continued diversion of public funds into the PTF was clearly a violation of this subsection because the Federal and State Governments and Local Government Councils would be denied their proper share of the revenue of the Federation. Besides, such funds when pooled into the Federation Account are to be shared out in accordance with a formula prescribed by National Assembly. Therefore, having a special trust fund to be controlled and managed by a Board outside the authority and control of the National Assembly is inconsistent with section 162 of the Constitution.

Also powers conferred on the Petroleum (Special) Trust Fund (PTF) Management Board by section 3(1) (d) of Decree No. 25 of 1994 were powers already conferred on the various ministries of the Federation. For example, the power to award contracts for the construction of roads or maintenance of roads throughout the country is within the jurisdiction of the Ministry of Works. The continued funding of the Petroleum (Special) Trust Fund would give rise to duplication of powers and functions.

The President’s action was criticized by the Senate as an unwarranted usurpation of legislative functions, and on the 3rd of July 1999, the Senate, by a resolution nullified the President’s action.32 However, since the President created a law, only another law or a judicial decision could nullify it. It is only the judiciary that has this constitutional right to decide whether the President acted unconstitutionally or illegally when an action against the President's action is properly brought before it. This action of the Senate was criticized by Late Chief Rotimi Williams (SAN) a legal luminary, who stated that:

32 The Guardian, July 8, 1999, p. 8.

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...I do not think that it is within the competence of that legislative body to pass a motion to "nullify" the executive action of the President. The Senate is an arm (no doubt a very important arm) of the National Assembly. But it is not by itself alone, the National Assembly. One can imagine the confusion which could be created if the House of Representatives were to take a view diametrically opposed to that reflected in the Senate resolution. The strongest objection to the action of the Senate in passing the resolution of 3rd July 1999 is the fact that it constituted itself the accuser as well as the judge of the constitutionality of the action of the President. Moreover, and again with the most profound respect to the Honourable members whose majority passed the motion in question, the limit of the powers of the Senate was disregarded. The function of the Senate is to make laws and to do everything incidental to its law making powers. But the Senate has no authority or power to interfere on control the President in the exercise of his executive powers. It cannot by a mere resolution or motion give any directive to the President regarding his exercise of executive powers nor can it undo what the President has done in the exercise of his powers. The only way in which the exercise of the executive powers of the President can be regulated is by the enactment of an Act of the National Assembly with respect to particular matters relating to such powers.33

It could be argued that if the President acted under section 315 of the Constitution and made a law to bring the Petroleum (Special) Trust Fund (PTF) Act in conformity with the Constitution, a mere resolution of the National Assembly could not change it. The National Assembly can only nullify a law passed by the President under section 315 by enacting a new law to repeal or modify it. In Stockdale v. Hansard,34Stockdale sued Hansard (the Parliamentary Printers) for a libel contained in a report of prison inspectors printed under the authority of the House of Commons. Hansard pleaded that the report was published on the order of the House of Commons and was, therefore, privileged. The House of Lords held that privilege extended to papers circulated to members of Parliament but not to those sold to the public, and that mere resolution of the

33 Ibid. 34 9 Ad & E. I.

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House of Commons could not change the law of the land. The abolition of the Petroleum (Special) Trust Fund by

the President could be defended on the ground that the President acted within the provisions of section 315 of the 1999 Constitution. The section provides that:

(2) The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.

The appropriate authority in this respect is the President since the law in question is an existing law and also a federal law. It is also important to note that the modifications which the President could make to an existing law were explained in section 315(4)(c) to include addition, alteration, omission or repeal. Thus by the provisions of this subsection the President could repeal an existing law if it is not in conformity with the Constitution.

(c) Who Can Challenge the Executive Act of the President? The 1999 Constitution is a federal Constitution which declares that it is the supreme law of the land.35 The implication of this is that the actions of the three arms of government, the executive, the legislature and the judiciary, are subject to the Constitution. Sections 1(1) and 5(1)(a) of the Constitution clearly illustrate that the executive functions of the President are not absolute and could be challenged, where the President acts unconstitutionally or arbitrarily. In such a case, the President's action can be challenged in a court of law by any person who has sufficient interest in the subject matter in issue. This simply means subjecting the President's action to judicial review.

Regarding the repeal of the PTF Decree, the parties who could challenge the action of the President seem to include any of the State Governments, any of the corporations or individuals who have contractual relationship with the PTF, and the National Assembly. When the party which challenges the action of the President has established that it has a locus standi, the court would assess the executive act, determine its constitutional validity and, possibly, nullify it by declaring it null and void. Only the courts in an action properly brought before it can nullify an executive act for unconstitutionality. Therefore, it may be argued that the Senate, by nullifying the President's act of scrapping the PTF on 3rd July, 1999, wrongly usurped judicial

35 See section 1(1) of 1999 Constitution.

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functions and therefore acted unconstitutionally. Beside, since the President's action was in nature legislative, the Senate can nullify it only by seeing that a suitable enactment is passed as stated earlier on.

However, it is noteworthy that the President subsequently rescinded the initial announcement of abolishing PTF by constituting a six member interim management committee to oversee the affairs of the PTF36 and for its winding up. This does not mean that the President accepts acting unconstitutionally. The President merely softened his position in order to avoid unnecessary tension between the executive and the legislature. At the time, the Republic was still too young to experience such a conflict and confrontation between the two arms of government.

(d) Modification of Allocation of Revenue (Federation Account, etc.) Act 1990 as amended by Decree (No. 106) of 1992.

With the coming into effect of 1999 Constitution and the Supreme Court decision37 the purport of section 162(3) of the Constitution is that the formula for allocation of revenue in Allocation of Revenue (Federation Account etc) Act, 1990, as amended by Decree No. 106 of 1992, is in direct contradiction to the Constitution. In accordance with section 162(2) of the Constitution the President was advised by the Revenue Mobilization Allocation and Fiscal Commission to table before the National Assembly “proposals for the revenue allocation from the Federation Account”. The President tabled the proposals before the National Assembly. When the National Assembly was not forthcoming, the President invoked his powers under section 315(1) of the Constitution. The President relying on section 315 of the Constitution made an Order i.e. Allocation of Revenue (Federation Account etc) Order 2002 modifying the Allocation of Revenue (Federation Account etc) Act 1990 as amended by Allocation of Revenue (Federation Account, etc.) Decree (No. 106) of 1992 as follows: - Section 1 of the principal Act is hereby modified by substituting therefore the following:

1. The amount standing to the credit of the Federation Account, less the sum equivalent to 13 per cent of the revenue accruing to the Federation Account directly from any natural resources

36 Daily Champion, July 13, 1999, p. 12. 37 A.G. of the Federation v. A. G. of Abia State and 35 Others (supra).

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as a first line charge for distribution to the beneficiaries of the derivation funds in accordance with the Constitution shall be distributed among the Federal and State Governments and the Local Government Councils in each State of the Federation on the following basis that is to say: a) The Federal Government 56 per cent b) The State Governments 24 per cent c) The Local Government Councils 20 per cent

Section 2 of the principal Act was modified by substituting for subsections (1) and (2) there of the following new subsections:-

2(1) The 56.00 per cent specified in section 1(a) of this Act shall be allocated to the Federal Government utilized as follows:- a) Federal Government 48.50 per cent b) General Ecological Problems 2.00 per cent c) Federal Capital Territory 1.00 per cent d) Stabilization Account 1.50 per cent e) Development of Natural Resources 2.00 per cent

2. The 24.00 per cent standing to the credit of all the States in the Federation Account as specified in section 1(b) of this Act shall be distributed among the States of the Federation using the factors specified in this Act. Section 3 of the principal Act was modified by substituting therefore the following new section:-

3. Subject to the provisions of this Act the amount standing to the credit of Local Government Councils in Federation Account shall be distributed among the States of the Federation for the benefit of their Local Government Councils using the same factors specified in this Act.

The above Order was challenged by the 36 States of the Federation in Attorney General of Abia and 35 Others v Attorney General of the Federation,38 where they contended that the President had no power, constitutional or statutory, to issue the said order “with particular regard to paragraphs 2(1)(a) and 3 therefore”. They also contended that the President had trespassed into the realm of powers essentially belonging to the legislature i.e. the National Assembly. Dismissing the above contentions, the Supreme Court held that since the revenue allocation formula in Allocation of Revenue (Federation Account etc.) Act 1990, as amended by Decree No. 106 of 1992 has been rendered 38 (2002)13 NSCQR p. 373.

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unconstitutional, the President’s only option was to invoke his powers under section 315(1) of the Constitution and modify the Act to bring it into conformity with the Constitution. This, the President has done. (d) Amendment of Local Government Laws During the military rule, the Military Governors enacted local government edicts providing for the establishment, structure and election of local government councils. Under the edict of each State, the state executive council could, in certain circumstances, remove an elected council and set up a caretaker committee in its place. But the 1979 Constitution made a fundamental change in our local government system. It provided in section 7 that a system of local administration by democratically elected councils was guaranteed to Nigerians.39

During the Second Republic some of the State Governors modified the Local Government Laws, while some Governors effected some changes in the local government system without first modifying or amending the local government laws. The Governor of Bendel State, elected under the Constitution issued an order, dissolving an elected council and replaced it with a caretaker committee appointed by him. The Constitutionality of the action was challenged in Jideonwu v. Governor of Bendel State.40 Here, the Governor of Bendel State, by an order, dissolved the local government councils in the State without modifying the provisions of section 100(1)(b) of the Local Government Edict 1976, an existing law, which provided that the executive council of the State was vested with the authority to suspend or dissolve a local government council, if it was satisfied that the local government council had not discharged its functions under the Edict in a manner conducive to the welfare of the inhabitants of the area of its authority as a whole.

The court held that, for the Governor to be invested with the authority to suspend or dissolve a council there must be an amendment to the provisions of section 100 of the Local Government Edict 1976. The court further held that, according to section 274(2), the Governor is the appropriate authority to modify section 100 of the Local Government Edict 1976 and since this modification was not done, the action of the Governor was unlawful and unconstitutional and ultra vires his powers.

39 The 1999 Constitution also has an identical provision of local government

councils in its section 7. 40 (1981)1 N.C.L.R. 4

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(e) Adoption of Sharia Law by Some States of the Federation. On the 27th of October, 1999 the Zamfara State Government adopted the complete application of Sharia Law in the State. This generated a lot of controversy. For instance, Justice Aniagolu, a former Justice of the Supreme Court, described the action of the Zamfara State Governor as treasonable. A former Chief Justice of Nigeria, Justice, Bello, had been quoted in the news media41as saying, in a paper he presented at the Consultative Meeting of Islamic Groups on Sharia, organised by the Jam'atuNasil, that the States had the constitutional right to declare Sharia as the law of their States. To buttress his point, he relied on Sections 315(1)(b), 315(4)(b) and 315(1) of the 1999 Constitution. The view of the former Chief Justice cannot be sustained because a Governor can only exercise his powers under section 315 to modify an existing law in order to bring it in conformity with the Constitution. This is not what the Governor of Zamfara State did. There was no existing law which the Governor modified; so his action cannot be protected by section 315 of the 1999 Constitution. Besides, as Justice Bello himself later stated, his action is inconsistent with certain provisions of the Constitution, particularly those provisions guaranteeing human rights - the right to freedom of religion, the right to freedom from torture and degrading treatment and the right to freedom from discrimination. The Constitution itself in section 10 provides that no government in Nigerian should adopt any religion as state religion. In view of all the above provisions of the Constitution, the Governor of Zamfara State cannot by any stretch of imagination claim or pretend that, in adopting the Sharia system of law, he was trying to bring any existing law into conformity with the Constitution under section 315.

Conclusion From the above discourse, it has been noticed that the adaptive powers given to the President/Governor is desirable to facilitate the transition from an existing legal order to a new legal order, in this instance, from the military dispensation to the 1999 Constitution regime. Our discussion has shown that even though the powers of adaptation conferred on the executive appear quite extensive, in practice, it is not as extensive as it appears. It is a power that must be exercised within narrow limits so as not to run into conflict with other arms of government especially the legislature. Since the inception of the Fourth Republic, we have

41This Day, November, 28 1999

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noticed the slow pace at which the National Assembly and the State Houses of Assembly discharge their legislative functions. If the provisions of section 315 of the Constitution were not included in the Constitution, transition to the new legal order would be adversely affected. The task of adapting some of the existing laws would fall on the judiciary, and the burden would be very heavy and unbearable for the courts.

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A CRITICAL ANALYSIS OF THE CHALLENGES TO AND PROSPECTS OF THE RIGHT TO DEVELOPMENT AS A

HUMAN RIGHT ∗∗∗∗

Abstract

Since 1972 when the Senegalese jurist Keba M’baye advanced it, and since 1986 when the United Nations adopted a Declaration on it, the idea of a ‘right to development’ has been the focus of an extensive debate. Stakeholders are polarised in their views and opinions, making the right to development one of the most contested rights. The question which has continued to attract the attention of stakeholders in the development discourse has remained whether a legal right to development truly exists. This article proposes to make a case for the recognition and practical implementation of the right to development as a human right. In making this case, it brings fresh insights into the discussion of the topic, explores the obstacles in the way, and the prospects, of recognizing and implementing the right to development as a legal right.

1. Introduction The Declaration on the Right to Development1 which states unequivocally that the right to development is a human right and which came almost thirty-eight years after the Universal Declaration of Human Rights (UDHR),2 was adopted by the United Nations in 1986 by an overwhelming majority, with the United States of America casting the only dissenting vote. Under the Universal Declaration of Human Rights, human rights were categorized into civil and political rights3 and economic, social and cultural (ESC) rights.4 From the original conception of human rights and at the inception of the drafting of the UDHR, there was a consensus over the unity and inseparability of civil and political

∗ Damian U. Ajah, B.A. (Hons.) English/Edu., LL.B (Hons.) ( Nig.), B.L.,

Lecturer, Faculty of Law, University of Nigeria, Enugu Campus. 1 The Declaration on the Right to Development was adopted by the UN General

Assembly, Resolution 4/128 on December 4, 1986. 2 Adopted by UN General Assembly Resolution 217(A) II on December 10,

1948.Available at http://www.unhcr.ch/html/menu3/b/74.htm. Accessed on 30/08/2010.

3 Arts. 1-21 of the UDHR. 4 Arts. 22-28 of the UDHR.

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rights and ESC rights. This consensus was, however, short-lived as certain international socio-political factors, including, and particularly, the spread of the Cold War, led to a division of opinions and divergence of views between the Eastern and the Western blocs over the nature and form which the proposed international bill of rights should take. This polarisation further resulted in the dichotomised emergence of two separate covenants. It took many years of hard international deliberations and shrewd negotiations for the world community to retrace its steps to the original conception of integrated and indivisible human rights. The Declaration on the Right to Development, adopted by the United Nations in 1986 was the outcome of those deliberations and negotiations. Regrettably, however,America’s opposition to this declaration delayed the process by several years during which the right to development could have been translated into a reality. More people, particularly from the North (the developed world) opposed the idea of recognising the right, questioning its foundational basis, legitimacy, justiciability, and coherence. Developing countries were stoutly in support of according recognition and acceptance to this right. Finally, and happily, in 1993, a new consensus emerged in Vienna at the Second UN World Conference on Human Rights. The Declaration5 adopted at that Conference reaffirmed the right to development as a universal and inalienable right and an integral part of fundamental human rights. This Vienna Declaration went on to state that human rights and fundamental freedoms are the birth-rights of all human beings and their protection and promotion, the first responsibility of government. It further commits the international community to the obligation of co-operation in order to realise these rights. It is therefore correct to say that the right to development emerged as a human right which integrated ESC rights and civil and political rights. The right to development in an international context is, therefore, partly the result of the struggle of developing countries for a new international economic order.6 It belongs to the so-called third generation rights, which includes the right to a healthy

5 The Vienna Declaration and Program of Action, adopted by the UN World

Conference on Human Rights, June 25, 1993. 6 The collective struggle of developing countries for the establishment of an

international order that favours their special needs culminated in the adoption of the UN Declaration on the Establishment of a New International Economic Order; GA Res 3201(S-VI) UN GAOR 6th special session Agenda Item 6, 2229th plenary at UN Doc A/RES/3201(S-VI) (1974).

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environment and the right to peace.7According to the proponents of third generation rights, all actors, including the State, the individual, public and private firms and the entire international community are under an obligation to make an effort to realise these rights.8 2. A Brief Historical Outline of the Right to Development. The idea of a right to development was conceived in 1972 in an inaugural lecture at the International Institute of Human Rights in Strasbourg by the Senegalese jurist, Keba M’Baye, who was then the head of the United Nations High Commission on Human Rights.9 From the moment of its inception, developing countries embarked on very serious and aggressive advocacy efforts aimed at garnering support for the inclusion of this right as a human right through the United Nations (UN). This advocacy paid off in 1986 when the UN adopted the Declaration on the Right to Development, which recognised the right to development as a fundamental principle of human rights.10 Subsequently, scholars from the south articulated the notion and enumerated the possible subjects and objects of the right, while jurists from the north questioned whether such a right existed at all.11

The right to development was given greater impetus through its reaffirmation by the Vienna Declaration and Programme of Action (Vienna Declaration), adopted by 171 countries participating in the World Conference on Human Rights in 1993, as a universal and inalienable right and an integral part of fundamental human rights.12 The right has also been given prominence in the mandate of the UN High Commissioner for

7 O. Sheehy ‘The Right to Development and the Proliferation of Rights in

International Law’ (2002) 5 Trinity Law Review 253. 8 Ibid, p. 254. 9 K. M’Baye ‘Le droit au développementcomme un droit de l’homme’ in Revue

international des droits de l’homme (1972), cited in R.L Barsh ‘The Right to Development as a Human Right: Results of the Global Consultation’ (1991) 13 Human Rights Quarterly p. 322.

10 Declaration on the Right to Development adopted by General Assembly Resolution 41/128 (4 December 1986).

11 Barsh loc. cit., p. 322,with respect to scholars from the South. For arguments forwarded by academics from the North, see J. Donnelly ‘In search of the Unicorn: The Jurisprudence and Politics of the Right to Development’ (1985) 15 California Western International Law Journal p.475.

12 Vienna Declaration and Programme of Action A/CONF 157/23 (12 July, 1993).

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Human Rights,13 and the General Assembly required the High Commissioner to establish ‘a new branch whose primary responsibilities would include the promotion and protection of the right to development’.14 The United States and some other Western countries feel uncomfortable at what they see as the determination of countries in the Non-Aligned Movement(NAM) to force their interpretation of this right on the group of donor countries. The NAM countries, on their part, claim that several years of development cooperation with the developed countries have yielded very little in the elimination of poverty and achievement of the objectives of numerous developmental strategies. They also claim that they continue to face difficulties in participating in the globalisation process, and that many of them run the risk of being marginalised and effectively excluded from its benefits.15 This diplomatic disagreement continued until 22 April, 1998, when the U.N. adopted, by consensus, a resolution on the right to development16, recommending to the Economic and Social Council the establishment of a follow-up mechanism consisting of an Open-Ended Working Group (OEWG) and an Independent Expert to monitor the implementation of the right to development. In the year 2003, the Commission asked the Sub-Commission on the Promotion and Protection of Human Rights to prepare a concept document for the implementation of the right and their feasibility, including an international- standard legal document of a binding nature on the guidelines on the implementation of the right as well as the principles for development partnership, including issues which such instrument might address.17 From the foregoing, it can be seen that there have been several efforts and initiatives by the U.N. through its charter-based bodies and resolution-based working groups aimed at the implementation of the right to development. Granted that there are

13 G. A. Res. 48/141, U.N. GAOR, 48th Sess., Supp. No. 49, U.N. Doc. A/48/141

(1993) p. 261. 14 G. A. Res. 50/214, U.N. GAOR, 50th Sess., Supp. No. 49, U.N. Doc. A/50/214

(1995) p. 296. 15 G. A. Res. 56/150, U.N. GAOR, 56th Sess., Supp. No. 49, U.N. Doc. A/56/

2150 (2001) p.341. 16 Commission on Human Rights Res.72, U.N. ESCOR, 44th Sess., Supp. No. 3,

U.N. Doc. E/CN. 4/1998/177 (1998) p. 229. 17 Commission on Human Rights Res.2003/83, U.N. Doc. E/CN.4/RES/2003/83

(2003). 47 countries voted in favour of this resolution, with the United States, Japan and Australia voting against it while three countries, Canada, Korea, and Sweden abstained.

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still lingering legal and theoretical controversies concerning the notion of the right to development, as testified to by the avalanche of literature on the subject,18 there appears to be an emerging consensus on the subject which, in combination with the initiative of the UN under the Working Group on the Right to Development, reinvigorates the prospects of its implementation. The African Charter on Human and Peoples’ Rights (African Charter), adopted in 1981, in article 22 expressly incorporates this right. In fact, it is the first and only legally-binding international document containing an express recognition of the right to development.19

3. Right to Development and Customary International Law Another source of legal validity for the right to development is the principle of international law whereby an act or conduct that has been accepted and repeatedly practised by a wide range of states over a long period of time develops into a rule of accepted customary usage and, so, creates a binding legal obligation on states. Some scholars contend that the series of resolutions and declarations on the right to development have transformed it into a norm of juscogens that creates a legal obligation on states.20 Dugard appears to share this view when he asserts that ‘an accumulation of declarations and resolutions on a particular subject may amount to evidence of collective practice on the part of States and hence, may constitute a customary rule.21 Even though the adoption of the Declaration on the Right to Development was greeted with series of debates and

18 See for example, Philip Alston, “Making Space for New Human Rights: The

Case of the Right to Development” 1 Harv. Hum. Rts. Y.B. (1988) p. 20; Russell Barsh, “The Right to Development as a Human Right: Results of the Global Consultation”, 13 Hum. Rts. Q. (1991) pp.322-338; N. J. Udombana, “The Third World and the Right to Development: Agenda for the Next Millennium,” 22 Hum. Rts. Q. (2000) pp.753-758; James C. N. Paul, “The Human Right to Development: Its Meaning and Importance”, 25 J. Marshal L. Rev. (1992) pp. 235-265; Arjun Sengupta, “Right to Development as a Human Right”, Econ. And Pol. Wkly., July 7, 2001 p.2527; Arjun Sengupta, ‘Theory and Practice on the Right to Development”, 24 Hum. Rts. Q. (2002) p. 837.

19 African Charter on Human and Peoples’ Rights, adopted on 27 June 1981. 20 M. Bedjaoui, International Law: Achievements and Challenges (1991), cited

in H Steiner & P Alston (eds) International Human Rights in Context: Law, Politics and Morals (New York: Clarendon Press, 2000) p. 1321.

21 J. Dugard, International Law: A South African Perspective (2005) p. 34, cited in Tadeg loc. cit. p. 334.

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controversies, several declarations and resolutions were subsequently made on it and several states voted in favour of these declarations and resolutions. It is, therefore, not out of place to hold the view that the subsequent declarations, resolutions and decisions of UN human rights bodies and international conferences show that there is a major consensus emerging to respect the principles of the right to development. Advancing this argument further, Bedjaoui contends pointedly that “the right to development is, by its nature, so incontrovertible that it should be regarded as belonging to a norm of jus cogens’.22

4. An Analysis of the Nature of the Right to Development as Provided for in the Declaration.

According to the Declaration on the Right to Development: “the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in and contribute to and enjoy economic, social , cultural and political development in which all human rights and fundamental freedoms can be fully realised.”23From this provision, some facts can be seen to have been settled. One is that there is a human right that is called the right to development, and that this right is inalienable, that is, it cannot be bargained away. Then, there is a process of economic, social, cultural, and political development which is recognised as a process in which all human rights and fundamental freedoms can be fully realised. The Right to Development (RTD) is a human right, by virtue of which “every human person and all peoples are entitled to participate in, contribute to and enjoy” that process of development. Further clarifications of the nature of this process are made in subsequent articles of the Declaration. They also elaborate on the principles involved in the exercise of the right to development. Article 1, for example, recognises that the beneficiaries of this right include “every human person” and “all peoples” and also recognises the right of peoples to self-determination.24 It should be pointed out that this simultaneous provision for “peoples’ rights” and “every human person’s right” does not in any way presuppose that the former is contrary to or in contradistinction from the former nor that the two should be seen as mutually exclusive. It is also categorically stated in the Declaration that it is the ‘human person” who is the central subject of development, in the sense of

22 Bedjaoui, op. cit., p. 1323. 23 Art. 1 Declaration on the Right to Development. 24 Ibid. Art. 1(2).

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the “active participant and beneficiary of the right to development”.25 It is submitted that even if “peoples” or collectives of “human persons” are entitled to some rights, such as full sovereignty over the natural wealth and resources in terms of territory, it is still the individual human person who must be the active participant in and beneficiary of this right. In further clarification, the Declaration states that the process of development, “in which all human rights and fundamental freedoms can be fully realised” would lead to ‘the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active free and meaningful participation in development and in their fair distribution of benefits resulting therefrom”.26 The Declaration is so clear on the nature of the RTD that even the measures and standards for realising the right are stated to be only those that will ensure “equality of opportunity for all” in their access to basic resources, education, health services, food, housing, employment and in the fair distribution of income.27 The realisation of the right would also require that the vulnerable groups, such as women, be allowed to play an active role in the development process, and that “appropriate economic and social reforms be carried out with a view to eradicating all social injustices”.

4.1 Who Are the Subjects and the Duty Bearers? Initially, advocates for RTD, principally the developing countries, believed that this right inhered only in the State. This is probably as a result of a very restricted understanding of article 1 of the Declaration. That view is no longer popular. The current general view on the subjects of RTD is that, depending on the context, different categories of entities may be the subjects of the right to development. These include individuals, peoples and states. All these parties are inhered with rights as well as duties. According to Arjun Sengupta, to realise this process of development to which every human person is entitled by virtue of his right to development, there are responsibilities to be borne by all the concerned parties: “the human persons”, “the states operating nationally,” and “the states operating internationally”. 28 The Declaration provides that “all human persons have a responsibility for development individually and collectively” and they must take

25 Ibid. Art. 2(1). 26 Ibid. Art. 2(3). 27 Ibid. Art. 8. 28 Loc. cit., p. 3.

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appropriate actions, maintaining “full respect for the human rights and fundamental freedoms as well as their duties to the community.” So, much as individuals are the central subjects of the right to development, they also have a duty to promote and protect an appropriate political, social and economic order for development.29 Every human person, therefore, has the duty to be able to develop his or her personality which development would enable him or her to lead a worthy and dignified life. He also has an added duty to help his family and the larger community to ensure the realisation of the RTD. It is noteworthy that one of the striking and unique features of the African Charter is its provision for the individual and collective duties of Africans to the respective communities from which they come. The logical implication, therefore, is that individuals should be active participants in development planning as well as in all the processes of its implementation. Human persons are, therefore, seen to function both individually and as members of collectives or communities and to have duties to communities that are necessary to be carried out in promoting the process of development.

It is an established fact that individual states are the traditional duty bearers in respect of human rights, including the right to development. The Declaration upholds this notion and makes it clear that states, both individually and collectively, have the primary responsibility to create national and international conditions favourable to the realization of the right to development.30 This responsibility is complementary to that of the individual aforementioned. The actions of the states needed for the creation of such conditions are to be taken both domestically and internationally. At the municipal level, states have the right and the duty to formulate appropriate national development policies,31 and should undertake all necessary measures to ensure the realisation of the right32 and encourage popular participation in all spheres. Apart from this, states are required to take steps to eliminate obstacles to development resulting from failure to observe civil and political rights as well as economic, social and cultural rights33 because the implementation, promotion and protection of these rights would be essential for the realisation of

29 Ibid. Art. 2(2). 30 Art. 3(1) Declaration on the Right to Development. 31 Ibid., 2(3 . 32 Ibid., Art. 8 . 33 Ibid., Art. 6(3).

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RTD, since all human rights and fundamental freedoms are indivisible and interdependent34. In summary, the state has the obligation to undertake all measures necessary for the realisation of the right to development and the progressive enhancement of the right.35

At the international level, the Declaration emphasizes the importance of international cooperation for the realisation of RTD. It should be recalled that a great deal of the impetus for the adoption of the Declaration centred on the needs of developing countries.36 The states have a duty to cooperate with each other in ensuring development and diminishing obstacles to development and should fulfil these duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, and mutual interest,37maintaining that all human rights deserve equal attention in their implementation and promotion.38 The Declaration also imposes a duty on the states, individually and collectively, to formulate international development policies to facilitate the realisation of the right to development. Argument in favour of the bindingness of the international cooperation provided under article 4 of the Declaration can further be buttressed by reference to other international human rights instruments which also create the same binding obligation to cooperate.39 The UN General Assembly also adopted the Charter of Economic Rights and Duties of States which reaffirmed the responsibility of every state to promote economic, social and cultural development of its own people and those of developing countries.40

The modes of promotion may include financial and technical assistance, providing better terms of trade, and the

34 Ibid. Art. 6(2). 35 Ibid. Arts. 2, 3, 7 &10. 36 Report of the Secretary-General on the International Dimensions of the Right

to Development as a Human Right, UN Doc E/ CN.4/1334 (1979) paras.152-159. See also Report of the Open-Ended Working Group of Governmental Experts on the Right to Development, UN Doc E/CN.4/1989/10 (1989) para. 25.

37 Art. 3(3) Declaration on the Right to Development. 38 Ibid. Art. 6(2). 39 See, for example, Arts. 1, 55, and 56 of the U.N. Charter. See also the UDHR,

ICCPR, ICESCR et cetera. 40 GA Res. 3281 (XXIX), UN GAOR, 2nd Comm. 29th session, Agenda Item 48

Arts.7 & 9, UN Doc A/RES/3281 (XXIX) (1975).

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transfer of technology to developing countries.41 In respect of socio-economic rights, there is a collective duty for countries that have ratified ICESCR to promote the fulfilment of socio-economic rights.42 In its General Comment on the Nature of States Parties’ Obligations, the Economic, Social and Cultural Rights Committee of the U.N. stated that the phrase ‘to the maximum of its available resources’ was intended to include both resources existing within a state and those available from the international community, clearly indicating the obligations of the international community, in particular that of the developed countries, in that regard.43 In concluding this analysis of the text of the Declaration on the Right to Development, it may be necessary to summarise the principal propositions of the said Declaration thus: (a) The right to development is a human right. (b)The human right to development is a right to a particular process of development in which all human rights and fundamental freedoms can be fully realised. This means that the RTD incorporates all the rights enshrined in the ICCPR and ICESCR and each of the rights has to be exercised with freedom. (c)Exercising these rights consistently with freedom implies free, effective, and full participation of all the individuals concerned in the decision making and the implementation of the process. What this further means is that the process must be transparent and accountable; individuals must have equal opportunity of access to the resources for development and receive fair distribution of development and income. (d) There are existing entities on which the right confers unequivocal obligation. These include individuals in the community, states at the national level, and states at the international level. 5.0. Obstacles to and Controversies over the Right to

Development.

5.1. Political Considerations. One of the major obstacles bedevilling the recognition and implementation of the TRD is the divergence in the political inclinations of the various state parties to the Declaration. This conflict of opinions between the West and the East which was at

41 G. S. Varges, The New International Economic Order Legal Debate (1983) 39

42-43, cited in I.D. Bunn ‘The Right to Development: Implications for International Economic Law’ (1999-2000) 15 American University International Law Review p.1431.

42 Art. 2 ICESCR. 43 General Comment 3 para. 13.

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its peak during the Cold War period led to the creation of the two different covenants on human rights. This divide has been carried over to issues concerning the RTD. The political discourse of the various working groups on the RTD and the Commission on Human Rights is often characterised by predictable posturing of political positions rather than practical dialogue on the implementation of the RTD. From the beginning, the concept of the RTD has been controversial. It emerged from the legitimate preoccupation of newly independent countries with problems of development and the dominance of East-West issues on the agenda of the U.N. Commission on Human Rights, marginalising the concerns of the political South. Third World delegations to the U.N. had made efforts to use that platform to advance the idea of a New International Economic Order. The level of success and the support they received in this regard had emboldened them and they saw the RTD as a vehicle which could take the world to the destination of the new Order. This politicisation of the RTD discussion in the U.N. has been maintained any time the RTD comes up on the agenda. According to Marks,44the political positions can be roughly categorised into four groups. One group, comprising delegations from the most active members of the Non-Aligned Movement, fights to use the RTD to reduce inequities of international trade, the negative impacts of globalisation, differential access to technology, the crushing debt burden, and similar factors they see as detrimental to the enjoyment of human rights and development.45 The second group is one which consists of the more moderate developing countries that want to integrate human rights into their national policies and want to maintain a positive relationship with the donor community, the international development agencies, and financial institutions. Marks states that a third group is made up of countries in transition and developed countries that tend to support the RTD as a vehicle to improve the dialogue between developed and developing countries and would like to see some progress made in the implementation of this right. This group which is sometimes sceptical about this right also sees its role as damage-limitation and would support a resolution that is not particularly

44 See Stephen Marks, “The Right to Development: Between Rhetoric and

Reality” Harvard Human Rights Journal Vol. 17. Available at http://www.law.harvard.edu/../marks.pdf., last accessed on 16/5/2010.

45 Ibid. Members of this group include Algeria, Bangladesh, Bhutan, China, Cuba, Egypt, India, Indonesia , Iran, Malaysia, Myanmar, Nepal, Pakistan, the Philippines, Sri Lanka, Sudan, and Vietnam.

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objectionable. The fourth group, which is almost always headed by the United States, votes against any resolution in favour of RTD and includes Australia, Japan, Denmark and other smaller countries which are usually influenced by America. It is submitted with respect that, much as Marks’s observations may be substantially correct, especially with respect to America, his categorisation may not be entirely watertight as countries flow in and out of the various groups depending on the circumstances at the time.

Apart from the purely political and Cold War reasons for the countries taking their respective positions, the reasons for Western countries supporting civil and political rights but opposing ESC rights as human rights can be summarised as follows: (a) Human rights are individual rights, (b) they have to be coherent, in the sense that each right-holder must have some corresponding duty-holder whose obligation it would be to deliver the right, and (c) human rights must be justiciable.

It is here noted that all these allegations are also held against the right to development which has been defined by the Independent Expert as a composite right to the process of development and can be likened to a “vector” of human rights composed of various elements that represent the various ESC rights as well as the civil and political rights.46 The above allegations have been subjects of controversies as to their correctness or otherwise and as to whether or not they hold against the RTD. It is to an analysis of these controversies that this article now turns. 5.2. Controversies Regarding the Right to Development. Those who advocate that human rights are individual or personal rights contend that since this is the case, there cannot be anything like a group or collective right, collectively inhering in a group of humans and to be collectively enjoyed by the said group. According to a major critic of the RTD, the UDHR clearly and unambiguously conceptualises human rights as being inherent to humans and as being universal and held equally by all, not as the product of social cooperation.47 In that paradigm, human rights are only personal rights, based on negative freedom, 48 imposing only

46 Fifth Report of the Independent Expert on the Right to Development, U.N.

Doc. E/CN.4/2000/WG.18/6(2000). 47 See Jack Donnelly, loc. cit., p.479. 48 Such as the rights to life, liberty, and free speech.

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negative obligations on the duty-bearers. The implication is that any right which imposes positive obligations on the duty-bearers49 does not qualify as a human right. It is also argued that any purported right which does not have a corresponding duty-bearer is a not a right. Sengupta does not subscribe to this view, maintaining that, logically, there is no reason to conclude that the right of a group or a collective is fundamentally different in nature from an individual’s human rights, so long as it is possible to define the obligation to fulfil them and duty-holders to uphold and secure them. It has also been noted that even personal rights can be protected by individuals and groups. He further contends that the identification of civil and political rights with negative rights and ESC rights with positive rights is too superficial because both would require negative as well as positive actions.50 It is submitted that the view of Sengupta that, logically, it is hard to regard only civil and political rights as human rights while the ESC rights as well as collective rights are not human rights is unimpeachable.51 Collective rights, as pointed out earlier on, has been recognised and built upon by several legal and institutional agreements and covenants. The Declaration on the Right to Development is one such legal instrument. 5.2.1 Controversy over Justiciability Theoretically speaking, positivists believe that formal validity is a fundamental feature of every right.52 A great deal of the opposition mounted against RTD comes from the allegedly non-justiciable nature of the right. This criticism is further strengthened by the fact that this right appears to be comprehensive in nature and declaratory in its normative content.

From a legalistic perspective, critics of the right to development argue that it was adopted only as a declaration of the General Assembly and does not have a binding nature as is the case with a multilateral treaty.53 They point out that, in other international human rights instruments, state parties have obligations to protect, respect and fulfil different categories of

49 Such as the ESC rights and the RTD. 50 See A. Sengupta, “Right to Development as a Human Right” loc. cit.

http:/www.globalgovernancewatch.org/resources… Last accessed 6/8/2010. 51 Ibid. 52 S. Marks “Making Space for New Human Rights: The Case of the Right to

Development” (1998) 1 Harvard Human Rights Year Book p. 33. 53 L. Irish “The Right to Development Versus a Human Rights-based Approach

to Development” (2005) 3 International Law Journal of Civil Society p. 6.

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rights. Donnelly, one of the most prominent critics of the right to development, characterises the right as a ‘search for the unicorn’ and contends that it is pointless within the framework of international legal argument.54 He notes that its language confuses rights with moral claims without indicating specific right holders and duty bearers.

It is hereby humbly submitted that the closest the UN General Assembly has come to prescribing the requirements for a norm to be considered a human right is Resolution 41/120 of 1986.55 The General Assembly noted that new human rights instruments should, among others, ‘be sufficiently precise [as] to give rise to identifiable and practicable rights and obligations [and] to provide, where appropriate, realistic and effective implementation machinery, including reporting systems’.56 Two separate requirements are laid down under Resolution 41/120. The first requirement is that the articulation of any right needs to have normative precision.57 It is said that the term ‘identifiable’ requires a degree of specificity as to the content of the right. In the case of the right to development, the Declaration on the Right to Development sets out the nature and content of the right as well as the right holders and duty bearers and hence meets the requirements of Resolution 41/120. This, however, does not mean that the content of a certain human right has to give a complete picture of its meaning and application. Initially all human rights, such as equal protection or due process, emerge as general and imprecise formulations.

The second requirement of Resolution 41/120 is that new instruments should ‘provide, where appropriate, realistic and effective implementation machinery, including reporting systems’.58 This requirement raises two fundamental questions. The first is whether implementation mechanisms are always required and, secondly, whether a reporting system per se is sufficient.

With respect to the first, the inclusion of the phrase ‘where appropriate’ may be intended to imply that new rights could be proclaimed without a simultaneous implementation provision. It may also be that supervision mechanisms in existing

54 Donnelly, loc. cit., p. 475. 55 G.A. Res. 41/120, para. 4 (d), 41 UN GAOR Suppl. (No 53), UN Doc.

A/41/53 (1986). 56 Ibid. 57 Ibid. 58 Ibid.

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instruments are adequate. In relation to the second possibility, it has for long been accepted by most prominent international lawyers that an international system for the ‘supervision’ of states’ compliance with international human rights obligations is sufficient to satisfy the requirements of ‘enforceability’. 59 The right to development is ‘a composite of rights’ encompassing civil and political as well as socio-economic rights’.60 Thus, from a traditional conception of justiciability, it would be difficult to enforce this whole set of rights in a formalised and rigid judicial or quasi-judicial body. Nevertheless, the right to development is a legally-enforceable human right reaffirmed in the Declaration on the Right to Development and numerous other declarations and resolutions of the General Assembly and its subsidiary bodies. The manner in which this right may be implemented is something that is evolving under its Working Group on the Right to Development. It suffices to say that it is a legal right with identifiable duty bearers. One has to recognise that much of the international human rights mechanism is based on supervision and implementation rather than adjudication. The right to development can well fit under such a system. Thus, depending on the nature of the right, the nature of the obligations involved and the factual circumstances, judicial remedies are not the only ways of implementing a right.61

Although no concrete enforcement mechanism has yet been established for the right to development under a treaty-based system, there is no reason why it cannot be done in the future. Whenever there is the political will, a binding international human rights treaty may be devised within the framework of the right to development. Moreover, the Working Group, through the Special Task Force, serves as a supervising organ for different development actors, including developed countries, international financial institutions and other inter-governmental organisations complying with the principles of the right to development. The experience of the Working Group and the Special Task Force on

59 H. Lauterpacht, An International Bill of the Rights of Man (1945), cited in

Marks loc. cit., p. 38. 60 Andreassen and Marks, loc. cit., p. 5. 61 See Jill Cottrell and YashGhai, “The Role of the Courts in the Protection of

Economic, Social and Cultural Rights” in YashGhai and Jill Cottrell (eds.) Economic, Social and Cultural Rights in Practice: The Role of Judges in Implementing Economic, Social and Cultural Rights (London: Interights, 2004) pp. 65-66.

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the Right to Development demonstrates that a supervisory mechanism may be devised in the framework of the right.

The experience of the African Charter clearly demonstrates that the right to development could be justiciable under a supra-national human rights system if there is the political commitment of states in that regard. The landmark decisions of the African Commission in the Endorois62 and DRC cases63show that the judicial application of the right to development is feasible in the current legal discourse. Recently,64 the Community Court of Justice of ECOWAS confirmed that rights guaranteed under the African Charter are justiciable in that court. It also held that in public interest litigation such as this one, the plaintiff need not show that he has suffered any personal injury or has a special interest to establish locus standi. In that case, SERAP, on behalf of Nigerian children alleged that the defendants violated the right to quality education, right to dignity, right of people to their wealth and natural resources and right of people to economic and social development guaranteed under the African Charter. The court, dismissing all preliminary objections brought by the defendants on jurisdiction, justiciability and locus standi, held that the right to education can be enforced before the court. That was the first time an international court recognized Nigerian citizens’ right to education. Thus, one can say that serious concerns about justifiability cannot be raised in the case of a failure to implement the right to development.

5.2.2. Controversy over Feasibility Another major objection to the idea of a right to development is the claim that development is not likely to be fulfilled for all.65 This argument has a common origin with the argument against the

62 Endorois case (supra). 63 DRC case (supra). 64 In Registered Trustees of the Socio-Economic Rights and Accountability

Project (SERAP) v. Federal Republic of Nigeria and Universal Basic Education Commission, Suit No. ECW/CCJ/APP/08/08 available at http://www.bing.com/search?srch=106cform=486 8cq accessed 13/8/2010. Judgment delivered 27/10/1009. See also Adam Adedimeji, “Judicial Activism and Public Interest Litigation,” available at allafrica.com/stories/2009 08130402html “Public Interest Litigation: Setting in Africa,” http://www.africanexecutive.com/modules/magazines/articles.php?article= 640, last accessed on 13/8/2010. See further http://www.reliefweb.int/rwb.msf /db900SID/MYA1-7Y28UM?OpenDocument last accessed on 18/9/2010; http://www.crin.org/RM/ecowas.asp last accessed on 22/9/2010.

65 Andreasen & Marks loc. cit., p. 6.

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enforcement of ESC rights which claims that the full enjoyment of these rights is impossible and hence, attempts to enforce them will always be an effort in futility and should therefore be abandoned. This conception puts the right to development and most socio-economic rights which are central to it outside the scope of human rights. The proponents of this argument posit that, in the face of the paucity of resources, particularly in the developing countries, it would be impossible to fulfil and guarantee these rights for all.

Several prominent human rights advocates and scholars have debunked this idea, describing it as a lame and untenable argument. It has for example, been stated that feasibility should not be a standard by which the cogency of human rights is measured when the objective itself is to work towards expanding their feasibility and full realisation.66 It is submitted that the fact that certain rights cannot be realised under current circumstances does not rule out the fact that they can be realised at all. Difficulty in the realisation of a right does not remove the fact that such a right remains a right. This argument holds in favour of the right to development.

According to the learned author, Tadeg,67 efforts are being made under the UN not only to articulate and elaborate the notion of the right to development, but also regarding its implementation. First, under the Global Consultation on the Right to Development and later on under the Working Group on the Right to Development, the UN has been working towards a meaningful realisation of the right to development through consultations with international financial institutions (IFIs), intergovernmental organisations and other development actors.68

As argued earlier on in this article, the series of international agreements, custom and practices on this right have created legal obligations on states and other non-state actors for which they will be held accountable. It can, therefore, be confidently asserted that the right to development satisfies the requisite characteristics of a human right. It has specifically identifiable duty bearers, the obligations of such duty bearers, as well as the corresponding national,69 regional70 and international monitoring and enforcement mechanisms. It is also important to

66 Ibid. 67 Loc. cit., p. 338. 68 Ibid. 69 See art 43 of the Ethiopian Constitution which expressly guarantees the right

of the people of Ethiopia to development. 70 Art 22 African Charter.

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note that the discourse of international human rights law adopts notions of implementation and supervision rather than those of justiciability and enforceability.71 This fits with the current trend on implementing the right to development through the Working Group on the Right to Development. 6. Suggestions The following suggestions are hereby put forward to enhance the status of the right to development and ensure its practical implementation:

(a) A Binding International Treaty to the Rescue. Although the view is maintained that the right to development is a legal right, it is however conceded that one of the major problems in its implementation, from a global perspective, is the nature of the Declaration on the Right to Development. The normative basis of the right to development still remains in the 1986 Declaration. Unlike a treaty that has the effect of imposing a legally-binding obligation on ratifying states, a declaration merely shows willingness and the statement of intent by a state to give effect to the principles embodied in the declaration. Moreover, the 10-provision Declaration is written less specifically and most of its provisions are framed in a general manner. An international treaty on the right to development would be indispensable, not only in terms of imposing a legally-binding international obligation, but also in terms of coming up with more specific and elaborate legal obligations that have greater normative precision.

It is natural to think that, given the negative attitude of developed countries towards the notion of a right to development, the possibility of adopting a binding international treaty would either be very slim or may not exist at all. Nevertheless, the recent attitude of developed countries shows that they are tacitly accepting the right, at least on theoretical grounds. In the Vienna Declaration, which was important for the universality, interdependence and indivisibility of human rights, many developed countries that were against the idea of the right to development adopted and endorsed the inherent nature of the right to development as a fundamental human right. This changed attitude of developed countries towards a notion of a right to development and the general emerging consensus call for efforts to come up with a binding international human rights instrument. The UN, through the Human Rights Council, should take the

71 Marks, loc. cit., p. 35.

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initiative in drafting the treaty and taking the whole process of adopting a treaty on the right to development. This in many ways strengthens implementation mechanisms already initiated under the UN through the Working Group on the Right to Development.

One may wonder how a new treaty on the right to development will take shape, given its comprehensive nature and issues of justiciability and feasibility. In this regard, the lessons to be drawn from the recently-adopted Convention on the Rights of Persons with Disabilities are significant. Some commentators state that the recent Convention expresses new developments in human rights thinking which are important in the context of the right to development.72 The inclusion in the new treaty of the possibility of ratification by intergovernmental organisations and the provision of a monitoring body which would receive collective complaints are significant developments in this regard.

Gouwenberg also states that another option could be to adopt a framework convention on the right to development similar to the UN Framework Convention on Climate Change (UNFCCC).73 Framework conventions are treaties which show the commitment of states on principles that will be developed in order to bring action-oriented rules into international politics. In brief, the legal status of these conventions is similar to that of a declaration. This is because framework conventions provide generally-phrased obligations which are open-ended and seek further elaboration.74

With respect to the right to development, a framework convention may stipulate a commitment to ensure the right, the basic principles underlying the right, right holders and duty bearers, and the general mechanisms of implementation and review of state obligations. The UNFCCC can provide important guidance on the structure of the framework convention on the right to development and the above procedural issues. After laying down such a framework convention, different protocols may then provide specific obligations and detailed matters in relation to different aspects of the right to development. This flexible legal framework would elevate the legal recognition of the right to development, while still giving states time to agree on the specifics of the right and states’ obligations. This whole range of

72 A. E. Gouwenberg “The Legal Implementation of the Right to Development”

unpublished LL.M Thesis, Leiden University (2009) cited in Tadeg, loc. cit., p. 340.

73 Ibid. 74 Ibid.

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possibilities demonstrates that the right to development can indeed be brought under the framework of international human rights conventions if the political will exists. (b). Strengthening the Working Group and Creating other

Implementation Monitoring Agencies. According to Sengupta, for many of the positive rights, implementability is often more important than enforceability. He suggests that designing a programme of action that would facilitate the realisation of the right might be a better way of going about it than legislating on those rights. He opines that democratic institutions of local bodies, or non-governmental organisations, or public litigation agencies may prove to be quite effective in dealing with the rights-based issues which are not amenable to exactly-formulated legislative principles. He therefore believes that monitoring agencies or consultative for a may be prove very effective ways of ensuring the implementation of the right to development. Much as the foregoing views are acceptable given the present nature of the legal framework on this right, it is submitted that if there comes into existence any legally binding international treaty on the RTD, nothing stops an aggrieved state, group or individual from seeking the appropriate remedies in the appropriate institutions, including the court or other arbitral bodies.

The UN Charter-based system, such as the General Assembly and ECOSOC, as well as its resolution-based organs that are created by the different organs of the UN, such as working groups, are important mechanisms of ensuring human rights accountability mechanisms. The Working Group on the Right to Development is among the first international monitoring bodies that made clear and direct attempts to make formal consultation and institutionalised ties with intergovernmental organisations, IFIs and the wider donor community.

Through the Working Group, supported by the High-Level Task Force on the Right to Development, a series of discussions are being conducted between IFIs in order to ensure the right to development in their institutional framework. The emphasis in recognising the role of these institutions in ensuring the right to development and human rights in general shows their crucial roles and elaborates some of their legal positions in this regard.

The High-Level Task Force on the Right to Development, under the Working Group on the Right to Development, has now become an important body that applies human rights standards to

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international organisations. It evaluates the human rights impact of IFIs and other important development actors from the perspective of the right to development. Recently, reflecting on the possibility of evaluating a World Bank plan for Africa, the Task Force stated:75

Given the preponderant role of the World Bank in the development of Africa and the influence of its thinking and operations on the donor community at large, its partnership should be critically scrutinised. Accordingly, the Bank should therefore be invited by the Working Group to allow the African Action Plan and its partnerships with governments of sub-Saharan Africa to be evaluated against the criteria of the right to development.

In brief, the Working Group on the Right to Development provides a tremendous opportunity to integrate the notion of the right to development in a comprehensive and multi-disciplinary manner. It serves as a forum whereby states, IFIs, donor communities, NGOs, intergovernmental organisations and other stakeholders can deliberate on mechanisms of implementing the right to development in a wider context. 7. Conclusions This article has tried to argue that the right to development is a legal right and qualifies as an enforceable human right. From the findings made by the article, it can be seen that the right to development prompts an examination of human rights issues in a comprehensive and much wider context than has traditionally been the case; encouraging an interdisciplinary analysis of human rights problems and showing the inadequacy of the existing human rights framework to address structural problems.76 The right to development provides a unique opportunity to promote an international economic order that is based on equity, social justice, and one that integrates human rights in different dimensions. It has been argued in this article that the right to development, though conceived under a declaration, has evolved into a legal right through a series of declarations and resolutions. The fact that it is a composite right that incorporates all other rights also makes its normative foundation implicit in the different international human rights instruments.

75 Report of the High-Level Task Force on the Implementation of the Right to

Development, 3rd session (2007) UN Doc A/HRC/4/WG 2/TF/2, para. 87. 76 Marks (above n 61) 7.

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By emphasising the indivisibility and interdependence of human rights, the right to development shows that any development process must acknowledge that the promotion and protection of human rights are part of that process. Importantly, development is defined as a human right that has the objective of fulfilling the continuing improvement of the well-being of individuals by expanding their capabilities and their freedom. The adoption of a legally-binding treaty on the right to development with more normative precision of its contents and clear obligations on duty bearers is indispensable for a meaningful realisation of the right. Thus, a binding treaty with a competent supervisory body that is able to monitor the implementation of the right to development is crucial for its effective realisation. In this regard, if there is a political commitment, the experience of the African Charter has shown that the right to development can be a legally-enforceable right through a treaty body. The adoption of framework conventions and the advent of new types of international human rights conventions, such as that of the Convention on the Rights of Persons with Disabilities that brought new developments in human rights thinking and implementation mechanisms, are important lessons relevant for the right to development. With the above suggested measures put in place, the right to development is surely weathering the storm of recognition and implementation, and surely holds great prospects for the development of mankind.

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NIGERIA AND CAMEROON: THE BAKASSI DISPUTE ∗∗∗∗

Abstract

The eight year old legal battle (1994 – 2002), between Nigeria and Cameroon legally speaking came to an end on 10 October, 2002 when the International Court of Justice (ICJ) sitting at the Hague handed down its decision in favour of the government of Cameroon over the disputed oil-rich area of Bakassi Peninsula. The case has generated huge discussion at the national, regional and international levels amongst writers, jurists and judicial commentators. Some Nigerians have questioned the approach adopted by the Nigerian government in resolving this international dispute, particularly, the decision to go to Court. Did Nigeria act properly in accepting judicial authority of the ICJ when it reserved the right to either appear or not to appear before the court? Having accepted ICJ compulsory jurisdiction, could it turn around to dishonour its judgment? Was there any other available option for Nigeria at that juncture? What are the legal implications of the verdict on Nigeria, the international relationship consequences–cum the enforceability of the verdict? The ICJ decision has also put in contention the nationality of the inhabitants of the Bakassi area who consider themselves as Nigerian nationals. Is the judgment about territorial integrity only or also about people living in the Bakassi Peninsula? What about the right to self-determination of the Bakassi people? This paper discusses the legal issues arising from that judgment.

1. Introduction This discussion on the Nigeria and Cameroon dispute over the Bakassi Peninsula will be divided into seven parts. Part one is the introduction. Part Two examines the nature of the case and contentious issues while Part Three attempts to summarize the decision of the World Court (ICJ). Part Four examines the ICJ decision as Solomonic but devoid of any consideration for the humanity of the Bakassi people. Vox populi on Bakassi discussed

∗ Joy Ngozi Ezeilo, Ph.D.; Senior Lecturer, Dept. of Public & Private Law,

Faculty of Law, UNEC “Nigeria And Cameroon: The Bakassi Dispute”, was first presented at the Conference organized by the Centre for International Studies, Department of Politics and International Relations, titled “Nigeria’s Foreign Policy After The Cold War: Domestic, Regional and External Influences” held at St. Anthony College, University of Oxford, UK, 11-12 July, 2003.

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in Part Five is an articulation of responses and reactions of Nigerians to the issue. The paper in Part Six considers available option(s) for Nigeria after the ICJ judgment particularly in respect of enforcement of the Court’s verdict. The paper concludes in Part Seven that Nigeria should comply with the judgment and take advantage of any concession made by Cameroon.

2. Conflict between Nigeria and Cameroon over Bakassi- The Legal Context and Contention

The case between Nigeria and Cameroon that took the parties to the ICJ- the World Court - focuses primarily on the land and maritime boundaries between the two countries in the Lake Chad and Bakassi Peninsula areas where both neighbouring countries shared common boundary.1 Thus, what was in contention was the delimitation and demarcation of the land boundary from Lake Chad to the Bakassi and also the Maritime boundary between Cameroon and Nigeria. The relevant instruments for the determination of sovereignty in relation to the land and maritime boundary between the two countries were also in contest. These instruments in contention namely: Milner- Simon Declaration, 1919; Thomson-Marchand Declaration, 1929-1930; Henderson – Fleuriau Exchange Notes, 1931;2 and Anglo-German Agreement of 11 March and 12 April 19133 were part of the colonial heritage of both countries that had been at various stages under Germany, France and Great Britain’s colonial rule.4 Cameroon in its claim of sovereignty over the Lake Chad and Bakassi Peninsula areas

1 For many, the case is just about Bakassi and little attention is paid to the Lake

Chad boundary dispute. The focus on Bakassi is driven by economic and strategic importance of the area. In this article and for holistic analysis, I will bring into focus the Lake Chad perspective of the dispute between Cameroon and Nigeria within the context of the article.

2 These three instruments mentioned were particularly relevant to determining the land boundary in Lake Chad area.

3 This Instrument was the basis for Cameroon’s claim of sovereignty over Bakassi. The document evidenced transfer by Great Britain of Bakassi to Germany under the Anglo- German Agreement of 11 March, 1913 during which time Cameroon was a German colony.

4 Cameroon was first colonized by Germany and after the First World War, by France while Nigeria was under British colonial rule. Britain administered part of Northern and Southern Cameroon as part of Northern and Southern Colony and Protectorate until independence when plebiscites were conducted by the United Nations.

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relied mainly on these colonial instruments5 as a basis of its title and claim of ownership while Nigeria challenged validity of these instruments on grounds either that the contracting colonial parties lacked the power to make such treaties on behalf of the colonized States or that they were improperly made.6 Furthermore, Nigeria’s claims were based on historical consolidation of the title, peaceful possession of certain Lake Chad areas and Bakassi coupled with acts of administration, which represents the manifestation of sovereignty.7 Cameroon initiated the case against Nigeria at the Court in The Hague on 29th March, 19948 and specifically in two separate but later consolidated applications, asked the Court to adjudge and declare as follows:

(a) that sovereignty over the Peninsula of Bakassi and disputed area of Lake Chad is Cameroonian, by virtue of international law, and that the Peninsula is an integral part of the territory of Cameroon;

(b) that the Federal Republic of Nigeria has violated and is violating the fundamental principle of respect for frontiers inherited from colonization (uti possidentis juris); and its recent legal commitments concerning the demarcation of frontiers in Lake Chad;

5 Note that in the claim of sovereignty over Bakassi Cameroon relied also on

two major post – independence instruments adopted by the heads of States of both countries. These instruments are the Yaounde’ II and Maroua Declarations.

6 See the International Court of Justice Decision of 10 October, 2002 in the Case concerning the land and Maritime Boundary Between Cameroon and Nigeria. The main contention of Nigeria in the case of Bakassi was that Great Britain lacked the power based on the treaty of Protection between Great Britain and Kings and Chiefs of Old Calabar to transfer title over Bakassi under the Anglo- German Agreement of 11 March 1913. Further, Nigeria argued that the Anglo- German agreement were defective because no – approval by German Parliament were obtained in conformity to the Preamble to General Act of Berlin Conference, 1885.

7 In other words, Nigeria was claiming that Cameroon acquiesced in relinquishment of its title in favour of Nigeria by not challenging Nigeria’s presence and acts of administration in Bakassi and the Lake Chad areas.

8 Cameroon’s first application to the Court was initially in respect of Bakassi Peninsula but by subsequent application dated 6 June 1994 it extended its claim to question of sovereignty over a part of the territory of Cameroon in the area of Lake Chad. Thus, requesting the Court to “specify definitively” the frontier between the two States from Lake Chad to the Sea, and asked it to join the two applications and “to examine the whole in a single case”. See Paragraphs 1-3 of the Courts judgment.

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(c) that by using force against the Republic of Cameroon, the Federal Republic of Nigeria has violated and is violating its obligations under international treaty law and customary international law;

(d) that the Federal Republic of Nigeria, by militarily occupying the Cameroonian Peninsula of Bakassi, and parcels of area of Lake Chad has violated and is violating the obligations incumbent upon it by virtue of treaty law and customary law;

(e) that in view of these breaches of legal obligation, mentioned above, the Federal Republic of Nigeria has the express duty of putting an end to its military presence in Cameroonian territory, and effecting an immediate and unconditional withdrawal of its troops from the Cameroonian Peninsula of Bakassi;

(f) that the internationally unlawful acts referred to under (a), (b), (c), (d) and (e) above involved the responsibility of the Federal Republic of Nigeria;

(g) that, consequently, and on account of the material and non-material damage inflicted upon the Republic of Cameroon, reparation in an amount to be determined by the Court is due from the Federal Republic of Nigeria to the Republic of Cameroon, which reserves the introduction before the Court of [proceedings for] a precise assessment of the damage caused by the Federal Republic of Nigeria.

(h) In order to prevent any dispute arising between the two States concerning their maritime boundary, the Republic of Cameroon requests the Court to proceed to prolong the course of its maritime boundary with the Federal Republic of Nigeria up to the limit of the maritime zones which international law places under their respective jurisdictions.”

(i) That in view of the repeated incursions of Nigerian groups and armed forces into Cameroonian territory, all along the frontier between the two countries, the consequent grave and repeated incidents, and the vacillating and contradictory attitude of the Federal Republic of Nigeria in regard to the legal instruments defining the frontier between the two countries and the exact course of that frontier, the Republic of Cameroon respectfully asks the Court to specify definitively the frontier between Cameroon and the Federal Republic of Nigeria from Lake Chad to the sea.” 9

9 See Paragraph 25 of the ICJ Judgment Concerning the Land and Maritime

Boundary between Cameroon and Nigeria.

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On the other hand, Nigeria submitted its Counter –Memorial to the following, urging the Court to:

(1) as a preliminary matter decide to deal with the issues relating to the land boundary;

(2) as to Lake Chad, adjudge and declare: (a) that sovereignty over the areas in Lake Chad defined

in Chapter 14 of this Counter-Memorial (including the Nigerian settlements identified in paragraph 14.5 hereof) is vested in the Federal Republic of Nigeria;

(b) that the proposed ‘demarcation’ under the auspices of the Lake Chad Basin Commission, not having been ratified by Nigeria, is not binding upon it;

(c) that outstanding issues of the delimitation and demarcation within the area of Lake Chad are to be resolved by the Parties to the Lake Chad Basin Commission within the framework of the Constitution and procedures of the Commission;

(3) as to the central sectors of the land boundary: acknowledging that the parties recognize that the boundary between the mouth of the Ebeji River and the point on the Thalweg of the Akpa Yafe which is opposite the mid-point of the mouth of Archibong Creek was delimited by the following instruments:

(a) paragraphs 3-60 of the Thomson/March and Declaration, confirmed by the Exchange of Letters of 9 January 1931,

(b) the Nigeria (Protectorate and Cameroons) Order in Council of 2 August 1946, section 6 (1) and the Second Schedule thereto

(c) paragraphs 13-21 of the Anglo-German Demarcation Agreement of 12 April 1913,

(d) Articles XV-XVII of the Anglo-German Treaty of 11 March 1913; and acknowledging further that uncertainties as to the interpretation and application of these instruments, and established local agreements in certain areas, mean that the actual course of the boundary cannot be definitively specified merely by reference to those instruments; affirm that the instruments mentioned above are binding on the parties (unless lawfully varied by them) as to the course of the land boundary;

(4) as to the Bakassi Peninsula, adjudge and declare:

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That sovereignty over the Peninsula (as defined in Chapter 11 hereof) is vested in the Federal Republic of Nigeria;

(5) as to the maritime boundary, adjudge and declare: (a) that the Court lacked jurisdiction to deal with

Cameroon’s claim-line, to the extent that it impinges on areas claimed by Equatorial Guinea and/or Sao Tomé e Principe (which areas are provisionally identified in Figure 20.3 herein), or alternatively that Cameroon’s claim is inadmissible to that extent; and

(b) that the parties are under an obligation, pursuant to Articles 76 and 83 of the United Nations Law of the Sea Convention, to negotiate in good faith with a view to agreeing on an equitable delimitation of their respective maritime zones, such delimitation to take into account, in particular, the need to respect existing rights to explore and exploit the mineral resources of the Continental shelf, granted by either party prior to 29 March 1994 without written protest from the other, and the need to respect the reasonable maritime claims of third States;

(6) as to Cameroon’s claims of State responsibility, adjudge and declare that those claims are unfounded in fact and law; and

(7) as to Nigeria’s counter-claims as specified in Part VI of this Counter-Memorial, adjudge and declare that Cameroon bears responsibility to Nigeria in respect of those claims, the amount of reparation due therefore, if not agreed between the parties within six months of the date of judgment, to be determined by the Court in a further judgment.”10

From the foregoing claims and counter claims by Cameroon and Nigeria respectively it is clear that an international dispute has arisen between both countries. A dispute means a disagreement on a point of law or fact, a conflict of legal views or interests between parties.11 According to the International Court of Justice,

10 See generally paragraph 26 of the Judgment for a restatement of Nigeria’s

claims in the counter- claim. 11 See Mavrommatis Palestine Concessions, Judgment, P.C.I. J., Series A, No. 2

p.11; Northern Cameroons, Judgment, I.C.J. Reports 1963, p.27; and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, advisory Opinion, I.C.J.

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“ [ICJ] in order to establish the existence of a dispute, ‘It must be shown that the claim of one party is positively opposed by the other’.12 The case of Cameroon and Nigeria were competing claims, diametrically opposite and as such amounted to international dispute. The fact that Nigeria claims title to the Bakassi Peninsula and Lake Chad areas of Darak, adjacent islands, as well as Tipsan means in the view of Cameroon that Nigeria contests the validity of these legal instruments and thus called into questions the entire boundary which are based on them. That, in the view of Cameroon, is confirmed by the occurrence, along the boundary, of numerous incidents, and incursions. Nigeria’s claim to Bakassi as well as its position regarding the Maroua Declaration also throws into doubt the basis of the maritime boundary between the two countries. In Cameroon’s view and contrary to what Nigeria asserted, a dispute has arisen between the two States concerning the whole of the boundary.13 Having established that the case between Cameroon and Nigeria amounted to a dispute within international legal context to require the intervention of ICJ, this paper will now turn to consider the Court’s decision concerning this land and maritime boundary dispute.

3. The World Court Decides The International Court of Justice (hereinafter referred to either as ICJ, World Court or the Court) exists for judicial settlement of disputes14. The ICJ is one of the six principal organs of the United Nations and was established by the Charter of the UN as the

Reports 1988, P.27, para 35)” ( East Timor), Portugal V. Australia), Judgment, I.C. J. Reports 1995 , pp.99-100, para.22).

12 See South West Africa, Preliminaty Objections, I.C.J. Reports 1962,Recueil 1962, P. 328; and further whether there exists an international dispute is a matter for objective determination’ ( Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74) “ See I.C.J. 1995, p. 100.

13 See the I. C. J. judgment on the preliminary objections filed by Nigeria on this case to challenge the jurisdiction of the court. I.C.J. Reports 1998, P.275 at P.315 the Court stated that “All of these disputes concern the boundary, which runs over more than 1600KM from the Lake Chad to sea, it cannot be said that these disputes in themselves concern so large a portion of the boundary that they would necessarily constitute a dispute concerning the whole of the boundary”.

14 Article 92 of the Un Charter 1945 established the court as the principle organ of the UN.

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principal judicial organ of the United Nations15. According to the UN Charter, “parties to any dispute the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice16. The United Nations encourage peaceful settlement of disputes hence the establishment of the World Court. The court is composed of a body of 15 independent Judges, elected regardless of their nationality among persons of high moral character with requisite qualifications, and no two of who may be nationals of the same State17. The seat of the Court is at The Hague, Netherlands and the Court by statute remains permanently in session.18

The jurisdiction of the court comprises all cases, which the parties refer to it, and all matters specially provided for in the Charter of the United Nations or in treaties or conventions in force.19 It is for States Parties to accept compulsory jurisdiction of the court in all legal dispute relating to interpretation of treaty; any question of international law, the existence of any fact which, if established, would constitute a breach of international obligations or to determine the nature or extent of the reparation to be made for the breach of an international obligation.20 Parties can accept the court’s jurisdiction unconditionally or on condition of reciprocity on the part of the several or certain States or for a certain time.21 All members of the United Nations are ipso facto, parties to the statute of the ICJ22. However, it is important to note that States do not submit to the Jurisdiction of the court as a result of signing the statue. In practice, the jurisdiction of the court to hear and decide a case on the merits depends on the will of the

15 The court functions in accordance with the provisions of the statute of the

International Court of Justice. 16 Article 33 (1). 17 See Articles 2 and 3. 18 Article 23, erupt during the Judicial actions, the dates and durations of which

shall be fixed by the court. 19 Article 36(1) 20 See Article 36(2) 21 See Article 38 of the ICJ statute for sources of law which the Court can apply

in discharge of its functions. 22 Article 93 (1) of the UN Charter.

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parties.23 In contentious cases between States, the court will assume jurisdiction based on the consent of the parties.24 Also, a party to a case before the court has a right to representation in the court by a national judge, and if there is no Judge of its nationality, a Judge ad hoc may be appointed who may be of some other nationality.25 In the case of Cameroon and Nigeria, two Judges were appointed respectively by both parties as Judges ad hoc.26

The jurisdiction of the International Court falls into two distinct parts; its capacity to decide disputes between States, and its capacity to give advisory opinions when requested by the United Nations and its organs.27 The Bakassi dispute between Cameroon and Nigeria fell under the contentious Jurisdiction of the court and the parties gave their consent that empowered the court to assume Jurisdiction.28 Having established that the World Court has power to decide in the Cameroon and Nigeria case, we shall turn now specifically to examine the court’s decision on the case concerning the land and maritime boundary between Cameroon and Nigeria.

The court examined the claims of both parties relating to the boundary line in the Lake Chad area and the boundary line from Lake Chad to the Bakassi Peninsula. The judgment of the court is divided into three parts: the first part dealt with land boundary in the Lake Chad and Bakassi Peninsula; the second addressed the question of the delimitation between the two States respective maritime areas. The final part of the judgment was devoted to the issues of State responsibility raised by the parties.

In relation to the issue of the delimitation of the boundary with the Lake Chad area, it was Cameroon’s contention that the boundary with Nigeria in Lake Chad was the subject of a conventional delimitation between France and the United

23 See Jan Brownlie, Principles of Public International Law 5th edition, (Oxford:

Oxford University Press: 1998) p. 714. Note Article 36 of the statute of the International Court of Justice.

24 Note the consent of the parties may be given ad hoc to the exercise of jurisdiction over a dispute the existence of which is recognized by both parties. 1bid p. 716.

25 Article 31 26 Cameroon appointed Keba Mbaye while Nigeria appointed Bola Ajibola 27 Article 96 of the UN Charter. See also M.N. Shaw, International Law 3rd edn.

(Grotius Publications, Cambridge University Press) 1991 p. 661. 28 Both Countries have accepted by declaration compulsory jurisdiction of the

court in accordance with Article 36(2) of the ICJ Statute.

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Kingdom, the former colonial powers, and of a demarcation under the auspices of the Lake Chad Basin Commission (LCBC). The following instruments were relied on by the Cameroon to establish its claim: Milner-Simon Declaration of 1919 and the Thomson -Marchand Declaration of 1929 – 1930, the text of the later was subsequently incorporated in the Henderson-Fleurian Exchange of Notes 1931. Accordingly, Cameroon claimed that this later instrument delimited the boundary in the Lake Chad29 with the map annexed thereto, and therefore has acquired the value of a “territorial title”. Importantly, Cameroon pointed out that these maps had “never been the subject of the slightest representation or objection from the United Kingdom or the Federal Republic of Nigeria” and that there existed no map, not even a Nigerian one, showing a boundary line as claimed by Nigeria in Lake Chad.30 Cameroon contended that the line of the boundary was expressly incorporated in the Trusteeship Agreement for the Territory of Cameroon under French administration approved by the General Assembly of the United Nations on 13 December 1946 and was subsequently “transferred to Cameroon and Nigeria on independence by application of the principle of Uti Possidetis.31

On the other hand, Nigeria argued in its final submissions, that the proposed delimitation and demarcation under the auspices of the Lake Chad Basin Commission (LCBC), not having been accepted by Nigeria, was not binding upon it. That in any event, the process which had taken place within the framework of the LCBC, and which was intended to lead to an overall delimitation and demarcation of boundaries on Lake Chad, was legally without prejudice to the title to particular areas of the Lake Chad region inhering in Nigeria as a consequence of the historical consolidation of title and the acquiescence of Cameroon. Further, Nigeria contended that the Lake Chad region has never been the subject of any form of delimitation, rejecting as conclusive delimitation and demarcation, the Thomson-Marchand

29 (Certain maps, which are claimed to confirm the course of the conventionally

delimited boundary. For example the Moised map were annexed to the Milner – Simon Declaration, which it argues, constitutes the official map annexed to the Henderson – Fleunau Exchange notes of 1931).

30 See paragraph 42 of the ICJ Judgement 10th October 2002, General list No. 94 31 Uti possidetis means retaining possession of and immovable thing, granted to

one who, at the time of contesting suit, was in possession of that thing. In this case, Cameroon is requesting ICJ to make an order to declare Cameroon the Legal Possessor based on this principle of ‘Uti possidetis’.

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Declaration of 1929-190 and 1931 Henderson-Fleurian Exchange of notes in relation to Lake Chad. These instruments according to Nigeria did not involve a final determination of the Anglo-French boundary in regard to Lake Chad but provided for delimitation by boundary Commission. Nigeria further contends that the work of the LCBC involved both delimitation and demarcation of the boundary within Lake Chad and that it did not produce a result which was final and binding on Nigeria in the absence of a ratification of the documents relating to that work. The court rejected Nigeria’s argument that the frontier in the Lake Chad area was not delimited. The court was of the view that while no demarcation had taken place in Lake Chad before the independence of Nigeria and Cameroon, the governing instruments show that, certainly by 1931, the frontier in the Lake Chad area was indeed delimited and agreed by Great Britain and France32. The court also observed that Nigeria was consulted during the negotiation for its independence and again during the plebiscites that were to determine the future of the populations of the Northern and Southern Cameroon33. The court did not accept Nigeria’s contention that the LCBC was from 1983 to 1991 engaged in both delimitation and demarcation.34

In sum, the court found that the Milner- Simon Declaration of 1919, as well as the 1929 -1930 Thomson – Marchand Declaration as incorporated in the Henderson-Fleuniau Exchange of Notes of 1931, delimited the boundary between Cameroon and Nigeria in the Lake Chad area. The map attached by the parties to the Exchange of Notes is to be regarded as an agreed clarification of the Moisel map. The Lake Chad border area was thus delimited notwithstanding that there were two questions that remained to be examined by the court, namely, the precise location of the Cameroon – Nigeria – Chad tripoint in Lake Chad and the question of the mouth of the Ebeji. The court refused to accept the request of Cameroon urging the court to find that the proposals of the LCBC as regards the tripoint and the mouth of the Ebeji “Constituted an authoritative interpretation of the Milner-Simon Declaration and the Thomson-Marchand

32 Ibid., para. 52. 33 (According to ICJ, Nigeria at not time suggested, either so far as the Lake

Chad area was concerned, or elsewhere, that the frontiers there remained to be delimited) paragraph 53.

34 The nature of LCBC work was that of demarcation according to the Court. See paragraph 54 of the Judgement.

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Declaration of letters of a January 193135. The court opined that the very fact that the out-zone of the technical demarcation work was agreed upon in March 1994 to require adoption under national laws indicated that it was in no position to engage in “authoritative interpretation” Sua Sponte. However, on examination of the Moisel map annexed to the Milner Simon Declaration of 1919 and the map attached to the Henderson Fleurian Exchange of Notes 1931 reached the same conclusions as the LCBC.36

The Court rejected Nigeria’s claim of sovereignty over areas in Lake Chad, which included certain named villages37 on grounds of historical consolidation of title and the acquiescence by Cameroon38. The court noted, however, that, there was a pre-existing title held by Cameroon in this area of the Lake. The pertinent legal test was whether there was evidence of acquiescence by Cameroon in the passing of the title from itself to Nigeria. The court held that from the evidence that there was no acquiescence by Cameroon in the abandonment of its title in the area of favour of Nigeria. Accordingly, the court concluded that the situation was essentially one where the effectivites adduced by Nigeria did not correspond to the law, and that accordingly “preference should be give to the holder of the title”39. The court accordingly concluded that, in the disputed areas, the land boundary between Cameroon and Nigeria from Lake Chad to the Bakassi Peninsula is fixed by the relevant instruments of delimitation40 already mentioned.

35 Ibid.. para. 56 36 See para. 57. 37 Aisa Kura, Bashakka, Chika’a, Darak, Darak Gana, Doron Liman, Doron

Mallam (Doro Kirta), Dororoya, Fagge, Garin Wanzam, Gorea Changi, Gorea Gutun, Jribrillaram, Kafuram, Kamunna, Kanumburi, Karakaya, Kasuram Mareya, Katti Kime, Kirta Wulgo, Koloram, Logon Labi, Loko Naira, Mukdala, Murdas, Naga’a, Naira, Nimeri, Njia Buniba, Ramin Dorinna, Sabon Tumbu, Sagir and Sokotoram

38 Nigeria contended that it was effectively administering these villages, acting as sovereign without any protest by Cameroon before April 1994 and that according to Nigeria amounts to acquiescence.

39 See the Frontier Dispute (Burkina Faso v. Republic of Mali) Judgment, I.C.J. Reports 1986, p. 5 587, para. 63.

40 As specified in paragraphs 73 to 75 and as interpreted by the Court in paragraphs 87 to 191 of this judgement.

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We shall now turn to the decision of the court concerning the most contested and popularized part of the dispute41 relating to the land and Maritime Boundary between Cameroon and Nigeria. That is the area known as Bakassi Peninsula. In fact, the entire case between Nigeria and Cameroon has been reduced by several people to only the “Bakassi dispute.”42

On the issue of boundary in Bakassi and the question of sovereignty over the Bakassi Peninsula, the Cameroon requested the court to adjudge and declare that the Anglo-German Agreement of 11 March 1913, determined the land boundary between Cameroon and Nigeria43. Therefore, that sovereignty over the Peninsula of Bakassi is Cameroonian. Nigeria on the contrary argued that the sovereignty over the Peninsula was vested in the Federal Republic of Nigeria and that Nigeria’s sovereignty over Bakassi extended up to the boundary with Cameroon as described in Nigeria’s Counter-Memorial.

Cameroon contended that the Anglo-German Agreement of 11 March 1913 fixed the course of the boundary between the Parties in the area of the Bakassi Peninsula, placing the latter on the German side of the boundary. Hence, when Cameroon and Nigeria acceded to independence, this boundary became that between the two countries, successor States to the colonial powers and bound by the principle of uti possidetis. For its part, Nigeria argued generally that title lay in 1913 with the Kings and Chiefs of Old Calabar, and was retained by them until the territory passed to Nigeria upon independence. Great Britain was therefore unable to pass title over Bakassi because it had no title to pass (nemo dat quod non habet); as a result, the relevant provisions of the Anglo-German Agreement of 11 March 1913 must be regarded as ineffective.44

41 At least, within the Nigeria context. 42 The area in dispute along the land boundary from Lake Chad to the Bakassi

Peninsula is as follows: (1) Limani; (2) the Keraua (Kirewa or Kirawa) River; (3) the Kohom River; (4) the watershed from Ngosi to Humsiki (Roumsiki)/Kamale/Turu (the Mandara Mountains); (5) from Mount Kuli to Bourha/Maduguva (incorrect watershed line on Moisel’s map); (6) Kotcha (Koja); (7) source of the Tsikakiri River; (8) from Beacon 6 to Wamni Budungo; (9) Maio Senche; (10) Jimbare and Sapeo; (11) Noumberou-Banglang; (12) Tipsan; (13) crossing the Maio Yin; (14) the HambereRange area; (15) from the Hambere Range to the Mburi River (Lip and Yang); (16) Bissaula-Tosso; (17) the Sama River.

43 Relevant paragraphs relied upon by Cameroon includes paras XVI to XX. 44 See paragraph 194 of the I.C.J. judgment 2002, op. cit.

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The Court noted that Germany itself considered that the procedures prescribed by its domestic law had been complied with; nor did Great Britain ever raise any question in relation thereto. The Agreement had, moreover, been officially published in both countries. It was therefore irrelevant that the German Parliament did not approve the Anglo-German Agreement of 11 March, 1913. Nigeria’s argument on this point accordingly could not be upheld.45 On the main document relied on by Cameroon, i.e. the Anglo-German Agreement of 11 March, 1913, Nigeria asked the court to severe that part of the agreement purporting to prescribe a boundary which, if effective, would have involved a cession of territory to Germany. In reply, Cameroon contended that Nigeria’s argument that Great Britain had no legal power to cede the Bakassi Peninsula by treaty was manifestly unfounded and contended that the agreement of 11 March 1913 formed an indivisible whole and that it is not possible to severe from it the parts concerning the Bakassi Peninsula.46

The Court first observed that during the era of the Berlin Conference, the European Powers entered into many treaties with local rulers. Great Britain concluded some 350 treaties with the local chiefs of the Niger delta. Among these were treaties in July 1884 with the Kings and Chiefs of Opobo and, in September 1884, with the Kings and Chiefs of Old Calabar. That these were regarded as notable personages is clear from the fact that these treaties were concluded by the consul, expressly as the representative of Queen Victoria, and the British undertakings of “gracious favour and protection” were those of Her Majesty the Queen of Great Britain and Ireland. In turn, under Article II of the Treaty of 10 September 1884, “The King and Chiefs of Old Calabar agree [d] and promise [d] to refrain from entering into any correspondence, Agreement, or Treaty with any foreign nation or Power, except with the knowledge and sanction of Her Britannic Majesty’s Government.”47 The court observed that the Treaty with the Kings and Chiefs of Old Calabar did not specify the territory to which the British Crown was to extend “gracious favour and protection”, nor did it indicate the territories over which each of the Kings and Chiefs signatory to the Treaty exercised his powers.48 However, the court observed that Great Britain had

45 Ibid. Para. 197. 46 Ibid. Para. 201. 47 Court’s judgment Paragraph 203. 48 However, the consul who negotiated and signed the Tready, said of Old

Calabar “This country with its dependencies extends from Tom shots --- to the

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clear understanding of the area ruled at different times by the Kings and Chiefs of Old Calabar, and of their standing.

The international legal status of a “Treaty of Protection” was examined by the court and the following observations were made: “Treaty of Protection” entered into under the law obtaining at the time cannot be deduced from its title alone. Some treaties of protection were entered into with entities, which retained thereunder a previously existing sovereignty under international law. This was the case whether the protected party was henceforth termed “Protectorate” (as in the case of Morocco, Tunisia and Madagascar (1885; 1895) in their treaty relations with France) or “a Protected State” (as in the case of Bahrain and Qatar in their treaty relations with Great Britain). In sub-Saharan Africa, however, treaties termed “treaties of protection” were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory.49

The Court pointed out that these concepts also found expression in the Western Sahara Advisory Opinion. In this instance, the Court stated that in territories that were not terra nullius, but were inhabited by tribes or people having a social and political organization, “agreements concluded with local rulers . . . were regarded as derivative roots of title”.50 Importantly, the court concluded that, under the law at the time, Great Britain was in a position in 1913 to determine its boundaries with Germany in respect of Nigeria, including in the southern section. Equally, the court found no evidence that Nigeria thought that upon independence, it was acquiring Bakassi from the Kings and Chiefs of Old Calabar. Nigeria itself raised no query as to the extent of its territory in this region upon attaining independence51.

River Rumby (on the west of the Cameroon Mountains) both inclusive. Some six years later, in 1890, another British consul, Johnston, reported to the Foreign Officer that “the rule of the Old Calabar Chief extends far beyond the Akpayage River to the very base of the Cameroon Mountains”. Ibid.

49 See Para. 205. 50 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 80. 51 See paragraph 213 of the ICJ Judgment. The Court noted in particular that

there was nothing which might have led Nigeria to believe that the plebiscite which took place in the Southern Cameroons in 1961 under United Nations supervision did not include Bakassi. It is true that the Southern Cameroons Plebiscite Order in Council, 1960 made no mention of any polling station bearing the name of a Bakassi village. Nor, however, did the Order in Council specifically exclude Bakassi from its scope. The Order simply referred to the Southern Cameroons as a whole. But at that time, it was already clearly established that Bakassi formed part of the Southern Cameroons under British Trusteeship.

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The court further observed that this frontier line was acknowledged in turn by Nigeria when it voted in favour of General Assembly resolution 16008 (XV), which both terminated the Trusteeship and approved the results of the plebiscite. This common understanding of where title lay in Bakassi continued until the late 1970s, when the parties were engaging in discussions or their maritime frontier. For all these reasons, the court found that the Anglo-German agreement of 11 March 1913 was valid and applicable in its entirety. The court examined the “distinct but interrelated bases of title over the Bakassi Peninsula advanced by Nigeria namely:

(i). Long occupation by Nigeria and by Nigerian nationals constituting an historical consolidation of title and confirming the original title of the Kings and Chiefs of Old Calabar, which title vested in Nigeria at the time of independence in 1960;

(ii) Peaceful possession by Nigeria, acting as sovereign, and an absence of protest by Cameroon; and

(iii) Manifestations of sovereignty by Nigeria together with acquiescence by Cameroon in Nigerian sovereignty over the Bakassi Peninsula.

Nigeria particularly emphasized that the title on the basis of historical consolidation, together with acquiescence, in the period since the independence of Nigeria, “constitutes an independent and self-sufficient title to Bakassi”.52 The court rejected the first basis of title over Bakassi relied on by Nigeria. According to the Court that at the time of Nigeria’s accession to independence there existed no Nigerian title capable of being confirmed subsequently by “long occupation”. On the contrary, on the date of its independence Cameroon succeeded to title over Bakassi as established by the Anglo-German Agreement of 11 March 1913.53

On the second and third bases of title advanced by Nigeria, the court observed that the legal question of whether effectivités could suggest that title lay with one country rather than another is not the same legal question as whether such effectivités could serve to displace an established treaty title. It opined that the title was already established and in 1961-1962, Nigeria clearly and publicly recognized the Cameroonian title to Bakassi. This continued to be the position until at least 1975, when Nigeria signed the Maroua Declaration. No Nigerian effectivités in 52 Ibid. Para. 218. 53 See paragraphs 213 – 214 of the ICJ Judgment.

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Bakassi before that time can be said to have legal significance for demonstrating a Nigerian title; this may in part explain the absence of Cameroon protests regarding health, education and tax activity in Nigeria. The Court also notes that Cameroon had since its independence engaged in activities which made clear that it in no way was it abandoning its title to Bakassi. Cameroon and Nigeria participated from 1971 to 1975 in the negotiations leading to the Yaoundé, Kano and Maroua Declarations, with the maritime line clearly being predicated upon Cameroon’s title to Bakassi. Cameroon also granted hydrocarbon licences over the peninsula and its waters, again evidencing that it had not abandoned title in the face of the significant Nigerian presence in Bakassi or any Nigerian effectivités contra legem. In addition, protest was immediately made regarding Nigerian military action in 1994.54

Based on the foregoing, the court refused to accept the second and third basis of title to Bakasi advanced by Nigeria. The court accordingly concluded that Articles XVIII to XX of the Anglo-German Agreement of 11March 1913 delimited the boundary between Cameroon and Nigeria in Bakassi and that sovereignty over the Peninsula lay with Cameroon. On the question of the maritime boundary between Cameroon and Nigeria that formed second part of the Court’s judgment, Cameroon requested the Court in order to avoid further incidents between the two countries to determine the course of the maritime boundary between the two States. Nigeria urged to court to refuse to carry out in whole or in part the delimitation requested by Cameroon, first because the delimitation affected areas claimed by third States.55 Secondly, because the requirement of prior negotiations has not been satisfied, Nigeria maintained in particular that the maritime delimitation line claimed by Cameroon encroached on claimed areas. Accordingly, Nigeria stated that if the court were to uphold the line claimed by Cameroon vis-à-vis Nigeria, it would be clear and by implication reject the claims of Equatorial Guinea concerning these areas.56

54 Ibid., para. 223. 55 Equatorial Guinea and Sao Tome and Principe are referred to as Third States

here. 56 It should be recalled that Equatorial Guinea application to intervene under

Article 62 of the ICJ statute was accepted by the court. The Nigeria assertion here is that since Equatorial Guinea has not intervened as a party, the court has no additional substantive jurisdiction over that State by reason of the intervention under Article 62 of the statute. Nigeria argued that the role of a

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Nigeria accordingly concluded that the court lacked the jurisdiction to deal with the maritime delimitation line claimed by Cameroon, to the extent that it impinges on areas claimed by Equatorial Guinea or by Sao Tome and Principe, or alternatively that the maritime delimitation line claimed by Cameron is inadmissible to that extent.

Cameroon for its part claimed that no delimitation in this case could affect Equatorial Guinea or Sao Tome and Principe, as the court’s judgment will be res inter alios acta for all States other than itself and Nigeria57.

The jurisdiction of the Court was founded on the consent of the parties. The Court could not therefore decide upon legal rights of third States not parties to the proceedings. In the present case, there were States other than the parties to these proceedings whose rights might be affected, namely, Equatorial Guinea and Sao Tome and Principe. Those rights could not be determined by decision of the Court unless Equatorial Guinea and Sao Tome and Principe had become parties to the proceedings. Equatorial Guinea had indeed requested and granted permission to intervene, but as a non-party intervener only. Sao Tome and Principe had chosen not to intervene on any basis. The Court considered that, in particular, in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be sufficient. In view of the foregoing, the Court concluded that it could not rule on Cameroon’s claims in so far as they might affect rights of Equatorial Guinea and Sao Tome and Principe. Nonetheless, the mere presence of those two States, whose rights might be affected by the decision of the Court, did not in itself preclude the Court from having jurisdiction over a maritime delimitation between the Parties to the case before it, namely Cameroon and Nigeria.58

On the issue of prior negotiation between the parties in relation to the maritime delimitation, Nigeria had argued, inter alia, that the court could not properly be seized of jurisdiction by the unilateral application of one State in relation to the

non-party intervener in a case before the court was to inform the court of its position, so that the court may refrain from encroaching in its decision on credible claims of that third party, thus enabling it to safeguard those claims without adjudicating upon them.

57 In adopting this position Cameroon relied on the judgment of the court concerning the continental shelf (Tunisia/Libyan Arab Jamahiriya), see I.C.J. Reports 1982, p. 91, para. 130.

58 Ibid. 238.

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delimitation of an exclusive economic zone or continental shelf boundary if that State had made no attempt to reach agreement with the respondent State over the boundary59. The United Nations Convention on the Law of the Sea 60requires that the parties to a dispute over maritime delimitation should first attempt to resolve their dispute by negotiation. According to Nigeria, these provisions lay down a substantive rule, not a procedural prerequisite. Negotiation is prescribed as the proper and primary way of achieving an equitable maritime delimitation and the court is not a forum for negotiation.

Cameroon argued that, while point ‘G’61 may be the last point on which there was agreement between the Parties in the delimitation of their maritime boundary, it was not the last point on which there were negotiations. It insisted that, even if they proved to be unfruitful, there were in fact intense negotiations between the two States which, from the outset, focused on the entire maritime boundary, a fact which was acknowledged in the Court’s Judgment of 11 June, 1998, in which it found that “Cameroon and Nigeria entered into negotiations with a view to determining the whole of the maritime boundary”.62

The court, while rejecting Nigeria’s argument based on no prior negotiation, noted that in its judgment of 11 June, 1998,63 negotiations between the Governments of Cameroon and Nigeria concerning the entire maritime delimitation up to point ‘G’ and beyond were conducted as far back as the 1970s. These negotiations did not lead to an agreement. The United Nations Law of the Sea Convention does not require that delimitation negotiations should be successful; like all similar obligation to negotiate in international law, the negotiations have to be conducted in good faith. The Court reaffirmed its finding in regard to the preliminary objections that negotiations had indeed taken place.

59 This Nigeria argued is contrary to Articles 74 and 83 of the United Nations

Convention on the Law of the Sea of 10 December 1982. 60 The Convention was adopted by the United Nations Conference on the Law of

Sea 29 April 1958. 61 Maritime boundary map description or chart adopted and submitted by

Cameroon in its claim of ownership of the Bakassi Penisula. Some of those descriptions and charts formed part of previous treaties and declarations entered into by the colonialist (Britain, France and Germany) on behalf of the colonized territories of Nigeria and Cameroon.

62 I.C.J. Reports 1998, p. 322, para. 110; emphasis added by Cameroon. 63 ICJ Reports 1998, p. 321, para. 107 and p. 322, para. 110

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Cameroon accordingly maintained that the Yaoundé II Declaration and the Maroua Declaration thus provided a binding definition of the boundary delimiting the respective maritime spaces of Cameroon and Nigeria. Cameroon argued that the signing of the Maroua Agreement by the Heads of State of Nigeria and Cameroon on 1 June, 1975 expressed the consent of the two States to be bound by that treaty. Cameroon further argued that these conclusions were confirmed by the publicity given to the partial maritime boundary established by the Maroua Agreement, which was notified to the Secretariat of the United Nations and published in a whole range of publications which have widespread coverage and are well known in the field of maritime boundary delimitation.64

Nigeria for its part drew no distinction between the area up to point G and the area beyond. It denied the existence of a maritime delimitation up to that point, and maintained that the whole maritime delimitation must be undertaken de novo.65

In relation to the Yaoundé II Declaration, Nigeria contended that it was not a binding agreement, but simply represented the record of a meeting which “formed part of an ongoing programme of meetings relating to the maritime boundary”, and that the matter “was subject to further discussion at subsequent meetings”.

The court held that the Yaoundé 11 Declaration and Maroua Declaration were binding on the parties. The court considered that the Maroua Declaration constituted an international agreement concluded between States in written form and tracing a boundary; it was thus governed by international law and constituted a treaty in the sense of the Vienna Convention on the Law of Treaties,66 to which Nigeria had been a party since 1969 and Cameroon since 1991, and which in any case reflects customary international law in this respect. Thus, the court refused to accept the argument that the Maroua Declaration was invalid under international law because it was signed by the Nigerian Head of State of the time, but never ratified. In the Court’s view, that Declaration entered into force immediately

64 Ibid. 253. 65 Ibid. 254. 66 See Article 2, para. 1 of the Vienna Convention on the Law of Treaties1969).

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upon its signature.67 Article 46 of the Vienna Convention reinforced the Courts position in rejecting Nigeria’s argument68.

By thirteen votes to three,69 the Court determined the maritime boundary between Nigeria and Cameroon.70 The boundary followed the line adopted in the Declaration signed by the Heads of State of Cameroon and Nigeria at Maroua on 1 June, 1975, (Maroua Declaration), as corrected by the exchange of letters between the said Heads of State of 12 June and 17 July, 1975.71 Unanimously, the court decided that, from point G, the 67 See paragraph 264 of the Court’s Judgment. 68 It provides that State may not invoke the fact that its consent to be bound by a

treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as in validating its consent, unless that violation is manifest and concerned a rule of its law of fundamental importance.

69 IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Mbaye; AGAINST: Judges Koroma, Rezek; Judge ad hoc Ajibola.

70 Decided that, up to point G below, the boundary of the maritime areas appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria takes the following course: �starting from the point of intersection of the centre of the navigable channel of the Akwayafe River with the straight line joining Bakassi Point and King Point as referred to in point III (C) above, the boundary follows the “compromise line” drawn jointly at Yaoundé on 4 April 1971 by the Heads of State of Cameroon and Nigeria on British Admiralty Chart 3433 (Yaoundé II Declaration) and passing through 12 numbered points, whose co-ordinates are as follows: Longitude Latitude point 1: 8° 30’ 44” E, 4° 40’ 28” N point 2: 8° 30’ 00” E, 4° 40’ 00” N point 3: 8° 28’ 50” E, 4° 39’ 00” N point 4: 8° 27’ 52” E, 4° 38’ 00” N point 5: 8° 27’ 09” E, 4° 37’ 00” N point 6: 8° 26’ 36” E, 4° 36’ 00” N point 7: 8° 26’ 03” E, 4° 35’ 00” N point 8: 8° 25’ 42” E, 4° 34’ 18” N point 9: 8° 25’ 35” E, 4° 34’ 00” N point 10: 8° 25’ 08” E, 4° 33’ 00” N point 11: 8° 24’ 47” E, 4° 32’ 00” N point 12: 8° 24’ 38” E, 4° 31’ 26” N;

71 That line passes through points A to G, whose co-ordinates are as follows: Longitude Latitude point A: 8° 24’ 24” E, 4° 31’ 30” N point A1: 8° 24’ 24” E, 4° 31’ 20” N point B: 8° 24’ 10” E, 4° 26’ 32” N point C: 8° 23’ 42” E, 4° 23’ 28” N point D: 8° 22’ 41” E, 4° 20’ 00” N point E: 8° 22’ 17” E, 4° 19’ 32” N

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boundary line between the maritime areas appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria followed a loxodrome having an azimuth of 270° as far as the equidistance line passing through the midpoint of the line joining West Point and East Point. The boundary meets this equidistance line at a point X, with co-ordinates 8° 21’ 20” longitude east and 4° 17’ 00” latitude north.72

By fourteen votes to two, the Court decided that the Federal Republic of Nigeria was under an obligation expeditiously and without condition to withdraw its administration and its military and police forces from the territories, which fall within the sovereignty of the Republic of Cameroon.73 The World Court by fifteen votes to one,74 took note of the commitment undertaking by the Republic of Cameroon at the hearings that: “faithful to its traditional policy of hospitality and tolerance”, it “will continue to afford protection to Nigerians living in the [Bakassi] Peninsula and in the Lake Chad area”.75

The ICJ unanimously rejected all other submissions of the Republic of Cameroon regarding the State responsibility of the Federal Republic of Nigeria; and also the counter-claims of the Federal Republic of Nigeria on the issue of state responsibility.76

point F: 8° 22’ 19” E, 4° 18’ 46” N point G: 8° 22’ 19” E, 4° 17’ 00” N.

72 Unanimously decides that, from point X, the boundary between the maritime areas appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria follows a loxodrome having an azimuth of 187° 52’ 27”.

73 IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Mbaye AGAINST: Judge Koroma; Judge ad hoc Ajibola.

74 IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc Mbaye, Ajibola; AGAINST: Judge Parra-Aranguren.

75 See the Judgment of the Court paragraph 325 (C). 76 In General the Judgment of Court was signed by the following:

(Signed) Gilbert GUILLAUME, President. (Signed) Philippe COUVREUR, Registrar. Judge ODA appended a declaration to the Judgment of the Court; Judge RANJEVA appended a separate opinion to the Judgment of the Court; Judge HERCZEGH appends a declaration to the Judgment of the Court; Judge KOROMA appends a dissenting opinion to the Judgment of the Court; Judge PARRA-ARANGUREN appends a separate opinion to the Judgment of the Court; Judge REZEK appends a declaration to the Judgment of the Court;

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The Judgment of the World Court finally had delimited the land and maritime boundary of Cameroon and Nigeria and decided that sovereignty over the Bakassi Peninsula lay with the Republic of Cameroon 77thereby putting to rest the eight year old legal battle between both countries started at the instance of Cameroon.

4. The Solomonic Judgment and the Bakassi People: Any Consideration for Humanity?

The World Court has acquired an enviable status as an umpire of justice with impeccable members serving as Judges. Increasingly, it is showing a greater degree of geographical diversification without any compromise on independence and quality of its composition. The work of the Court is arduous and often calls for Solomonic wisdom to do justice to the cases and parties before it. The case of Cameroon and Nigeria illustrates how complex, highly technical and contentious the issues that the ICJ is usually called upon to adjudicate in exercise of its judicial function can be. The duty of deciding based on the law and facts of a particular case is no mean task. But, beyond tabulated legalism, one would like to examine the ICJ decision on the Bakassi issue from the human angle. What is the impact of the judgment on the Bakassi inhabitants as a people? Is the judgment devoid of any consideration for humanity?

To answer the question of what the human value of this judgment is, one needs to specifically consider the people that will be mostly affected by this judgment – the Bakassi inhabitants or natives. Bakassi Peninsula is made up of 10 major islands with a population of about 300,000 people. The predominant groups are:

Judge AL-KHASAWNEH and Judge ad hoc MBAYE append separate opinions to the Judgment of the Court; Judge ad hoc AJIBOLA appends a dissenting opinion to the Judgment of the Court. (Initialled) G.G. (Initialled) Ph.C. Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this tenth day of October, two thousand and two, in four copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Cameroon, the Government of the Federal Republic of Nigeria, and the Government of the Republic of Equatorial Guinea, respectively.

77 In Favour: President Guillaume; Vice –President shi; Judges Ranjeva, Herczegh, Fleischhauer, Higgins, Parra- Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; judge ad hoc Mbaye; Against: Judges Oda, Koroma; Judge ad hoc Ajibola. Note in general, Judge Ajibola (judge ad hoc for Nigeria) and Judge Koroma respectively wrote dissenting opinion on the Court’s Decision in the case of Cameroon and Nigeria.

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Efik with Ibibios, Ijaws, Igbos, Orons, Yorubas Urhobis, and other inhabitants. Although, the population is large the area is said to lack basic infrastructure and facing serious environmental degradation owing to oil production activities.78

Considerations of humanity may depend on the subjective appreciation of the Judge, but, more objectively, they may be related to human values already protected by positive legal principles, which taken together, reveal certain criteria of public policy and invite the use of analogy.79 Such criteria have obvious connections with general principles of law and with equity, but they need no particular justification. At the world court, Nigeria particularly emphasized that its title on the basis of historical consolidation, together with acquiescence, in the period since the independence of Nigeria, “constitutes an independent and self-sufficient title to Bakassi.80

Nigeria showed before the Court, in considerable details, often with supporting evidence of many activities in Bakassi that it regarded the area as proof both of settled Nigerian administration and of acts in exercise of sovereign authority. Among these acts are the establishment of schools, the provision of health facilities for many of the settlements and some tax collection. It also contended that the case law of the World Court, and of certain arbitral awards, makes it clear that such acts were indeed acts à titre de souverain, and as such relevant to the question of territorial title.81 Evidence before the court showed that the people of Bakassi had been living there for at least 4 decades and were not only predominately Nigerians but consider themselves as Nigerians and some of them claim the area is indigenous to them. Unlike in 1961 when the United Nations conducted plebiscites in Northern and Southern Cameroon to seek their views before taken a decision affecting them, no such action was taken before the ICJ reached its famous decision that the Bakassi people now form part of Cameroon. Arguably, without due consultation, the people of Bakassi had been arbitrarily denied their right to a nationality.82

78 No recent census has been done in the area and this figure is based on

estimation from the 1991 Nigerian Population Census. 79 See Ian Brownlie, Principles of Public International Law op.cit., p. 27 80 Paragraph 218 of the ICJ Judgment. 81 See Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953; Western Sahara,

Advisory Opinion, I.C.J. Reports 1975; Rann of Kutch, Arbitral Award, 50 ILR 1; Beagle Channel Arbitration, 52 ILR 93.

82 See Art. 15 of the Universal Declaration of Human Rights: 1948

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According to the International Covenant on Civil and Political Rights (ICCPR) “All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” The protection of individuals and groups rights particularly the right to self-determination is considered an important aspect of human rights. The United Nations Charter recognized the right to self-determination.83 ICJ being a principal organ of the UN ought to have had regard to this legal principle to ensure that the well being of the inhabitants of Bakassi was respected.

Cameroon’s oral pledge to extend their traditional hospitality to them, which undertaken was subsequently accepted by the Court in its judgment is not sufficient. The decision of the court tends to focus on the territory not the people of Bakassi inhabiting the territory with a collective right to self-determination. As Ian Brownlie rightly observed “… territory inhabited by peoples not organized as a State cannot be regarded as terra nullius susceptible to appropriation by individual States in case of abandonment by the existing sovereign”84.

Right to self-determination as a concept stands apart from the normal discourse of rights and directly affects political power and organization within and among States85. It has a deep historical significance starting with decolonization and continuing to the contemporary focus on democratization and prominence of ethno-separatist movements.86 The entire dispute between Nigeria and Cameroon over Bakassi brought to the fore once more the colonization and unfair Berlin partitioning of Africa. The circumstance of the case alone would have moved the court to consider the principle of self-determination, and at the least, conduct plebiscites and factor the result into the court’s decision.

Although, the application of the principle of uti possidetis may have constrained the court in recognizing the collective rights of Bakassi people to self determination, but one still expected the court to make concrete recommendation binding Cameroon with,

83 See Article 1(2) and Article 55 “With a view to the creation of conditions of

stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.

84 Ian Brownlie, Principle of Public International Law, op. cit, p. 602 85 Henry J. Steiner and Philip Alston, International Human Rights in Context 2nd

Edn. (Oxford University Press) 2000 p. 1248. 86 Ibid.

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respect to the right of Bakassi people who were Nigerian nationals until the decision of ICJ. Merely accepting Cameroon’s weak undertaking “that Cameroon faithful to its traditional policy of hospitality and tolerance, it will continue to afford protection to Nigerians living in the Bakassi Peninsula and in the Lake Chad Area” reflects lack of consideration of humanity in the ICJ Judgment.87

It will not be too far before agitation for self determination will be intensified by the people, which will further worsen the security and stability of the region. The Court’s failure to deal concretely in a just and fair manner with the rights and welfare of the people of Bakassi has rendered its decision devoid of any consideration for humanity and one that will precipitate agitations for self- determination with its attendant consequences at domestic, regional and international levels.

5. Vox Populi on Bakassi The reaction and responses by Nigerians concerning the decision of World Court that gave judgment in favor of Cameroon over the Bakassi Peninsula have been unprecedented. It does seem, from reactions, that no major occurrence has jostled Nigerians out of their laxity in the recent past like the October 10, 2002 verdict of the International Court of Justice (ICJ) at the Hague, Netherlands over the Bakassi Peninsula. Most Nigerians going by their reactions, least expected the ICJ verdict as outcome of the Cameroon instituted action after eight years of defense with the best team of local and foreign international experts at our disposal. Despite the fact that Nigeria was given a little leverage in the judgment in the Lake Chad zone, the loss of Bakassi peninsula is enormous and has been subject of a wide-spectrum of criticism, consequent on the effect of denying hundred’s of Nigerian’s inhabiting that area of their Nigerian citizenship.

In an official statement, the Federal Government had rejected it, declaring, “On no account will Nigeria abandon her people and their interest. For Nigeria, it is not a matter of oil or natural resources on land or in coastal water. It is a matter of the welfare and well-being of her people on their land.”88 There has been host of calls that the government should go to war and win probably by might what it failed to win in the legal tussle on Bakassi at the World Court. The preponderant views of Nigerians

87 Only one Judge of ICJ- Judge Parra- Aranguren, refused to endorse that part of

the judgment. 88 THISDAY, Thursday October 24, 2002, p. 2.

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are that the government should act in contempt of the Judgment and take all necessary actions to secure its borders around the disputed peninsula.

The responses and reactions of some Nigerians prompted Assisi Asobie an activist scholar to write:

… Some Nigerians including some of those who represented our country on the case, at the Hague, do not reflect a thorough understanding of the issues involved in the case. In particular, the political context of the dispute is not fully appreciated by many Nigerians89

It is the view of this paper that the legal contention is also beyond the comprehension of many Nigerians. Most commentators appear to be simply driven by the spirit of patriotism and the feeling of the ‘Giant of Africa’. Thus, to conceive of even legal defeat at the World Court to a small neigbouring country Cameroon is a huge assault on its ego as a leader of the African continent.90 We will briefly discuss these responses under three broad categories: The Government- administrators, policy and lawmakers; the Nigerian People; and the Bakassi People- the direct victims of the World Court’s decision.

Government Views President Olusegun Obasanjo commenting on the world Court decision stated that Nigeria and Cameroon are exploring political and diplomatic means of resolving the Bakassi crisis. He however said that government’s official position on the issue would be made known after the country’s team of lawyers had critically examined the ruling and submitted their views to the government.91 About a week later on, an official statement issued and attributed to the Federal Government rejected the judgment and reaffirmed its commitment to protect the interest of its citizens and inhabitants of the disputed territories. Nigeria rejected the verdict of the International Court of Justice on the disputed

89 See Vanguard Newspaper, Friday, June 6, 2003, p.18. 90 Ethnicity plays a major role in our internal politics but when it comes to

external relations many Nigerians would quickly adjust to stand as one Even, former Biafra predominantly Igbos) of Nigeria who felt that previous government actions in conceding territorial sovereignty to Cameroon then was informed by malice to ensure that the Igbos lose the Biafra war had no option than to join the public opinion poll to support Nigeria to remain resolute in its claim over Bakassi.

91 Vanguard, Friday, October 18, 2002 vol. 17 No. 51004

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Bakassi Peninsula because the Court failed to take a lot of fundamental issues into consideration in arriving at its decision especially the order relating to Nigerian communities in which their ancestral homes were adjudged to be in Cameroonian territory but which are expected to maintain cultural, trade and religious affiliations with their kith and kin in Nigeria92.

According to the Federal Government, the ICJ’s verdict was rejected on many grounds among which are the variance between treaty of protection and treaty of possession. Where however, a treaty of protection provides for jurisdictional powers, the protecting power can lay claim to possessing a title. But as it concerns Bakassi, the British treaty with the inhabitant’s for protection of the Efik people living there did not provide for British jurisdiction to transfer their land and people under the Anglo- German Agreement of 1913, which the Court mainly relied on to find for Cameroon.93 The Federal government does not accept that a protectorate treaty made without jurisdiction should take precedence over a community’s title rights and ownership existing from time immemorial. Britain could not have given to Germany what it did not and never had, in consonance with the principle of “nemo dat quod non habet”.94 Further, the government enjoined her nationals in Bakassi not to move from where they are living now, as the judgment will have no effect on Nigeria and its oil and gas reserves.95 Senator Udoma Udo Udoma, a Legislator said, “the ICJ Judgment amounted to international conspiracy against Nigeria which the country is very bitter about and suggested that both countries needed to enter into further negotiations in the matter in the interest of Peace.96 The then Commissioner for Justice and Attorney General of Lagos State, Professor Yemi Osinbajo (SAN), said that a diplomatic approach remained the best option to resolve the matter since Nigeria and Cameroon had been living in peace as good neighbours, and has so much in common; emphasizing that much

92 Vanguard, Friday, Oct. 25, 2002. 93 Former Speaker of Imo State House of Assembly Chief Noel Chukwukadibia

faulted the ICJ judgment on the ground that the Judges had concentrated on the 1913 treaty instead of the Berlin Conferences of 1884 and 885- Punch, Wednesday, October 30, 2002 P.10.

94 See Thisday op. cit. October 24, 2002. 95 The Comet, Friday Oct. 11th 2002. 96 Senator Udoma was then the Chairman of the Senate Committee on

Appropriation and also from South – South zone of Nigeria which is close to Bakassi.

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depended on Cameroon which had been awarded judgment to toe a reconciliatory line. He therefore, urged Nigerians to disregard calls to dishonour the ICJ decision. This stand was taken based on the fact that Nigeria had submitted to the jurisdiction of the World Court and that it was not right for them to question the propriety of its decision even though ICJ had no “defined” enforcement mechanism.97

A call from the Cross River Government, asked the Federal Government to relieve the Attorney General of the Federation and Minister for Justice Mr. Kanu Agabi of his appointment on account of his opinion that Nigeria should concede Bakassi to Cameroon since Nigeria stood to gain enormous offshore oil reserve. The Cross River government felt betrayed and hurt that such a statement should come from their own “son-of-the-soil Minister”.98 Commenting on the decision the former speaker of Akwa Ibom State House of Assembly Mr. Bassey Essien has described the ICJ ruling on Bakassi as a fresh attempt by the colonial masters to repartition the African continent stating that to lose Bakassi will mean closing the Eastern Naval command in Calabar and denying Nigeria access to the high sea.99 In the same vein, Mrs. Nella Andem-Ewa, the Attorney-General for Justice (as she then was) for Cross River state suggested that the Bakassi case should be a wake-up call on the need for Nigeria to review its foreign policies, continental and trans- continental alliances, redefine its national interest and ascertain it’s position and influence within the comity of nations.100 She expressed shocked that the ICJ would disregard the impact of its decision on the people of Bakassi in particular and condemned the failure or omission to conduct a plebiscite in Bakassi which according to her is not only discriminatory but offends against the purposes and principles of the UN and the Charter of the African Union with regard to self determination. She enjoined Bakassian Nigerians and the entire black race to join forces and appeal to the conscience of the world to afford the indigenous population of Bakassi the opportunity to exercise their inalienable right as

97

Thisday, Vol. 8 no. 2734, Thursday, October 17, 2002. 98 Vanguard, Wednesday, October 23, 2002. The then Justice Minister and

Attorney –General of the federation, Mr. Kanu Agabi (SAN) that “Nigeria stands to gain enormous offshore oil reserve as a result of the judgment if the peninsula should be handed to Cameroon, which he posits does not have oil in commercial quantity”, Vanguard, Wednesday, October 23, 2002, pp.1-2.

99 Punch, Tuesday November 5, 2002, p. 6. 100 Emphasis mine.

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provided in the UN Charter and have a plebiscite to determine their nationality. In another reaction, the National Human Rights Commission said the Federal Government could negotiate with Cameroon over Bakassi peninsula but the nationality of the people there is not negotiable.101 The House of Representatives in response to the judgment constituted a special committee to study the implications of the verdict. Equally, they were charged with the task of advising the House on the options open to Nigeria in its bid to reclaim its territory.102

People’s Views Chief Emeka Odimegwu Ojukwu, ex- Biafran leader, faulted the verdict of the World Court on Bakassi, saying “it would compound the dispute between Nigeria and Cameroon over the ownership of the oil-rich territory” . He however, maintained that he did not encourage rejection of the verdict.103 He blamed the former Nigerian leader, General Yakubu Gowon, for ceding the territory to Cameroon advocating that the leaders who over stepped the bounds of powers given to them should be made to account or pay for their action. He reiterated the fact that Gowon at the time he ceded Bakassi had no control over it, as it belonged to Biafra.104 N. U. A. Nwagbara in his writing attributed the Bakassi issue and problem to the arrogance, nonchalant and unpatriotic spirit of Nigerian rulers who underrated Cameroon and forgot that law is an ass and no respecter of persons. He alleged that since the verdict, there has been both negative and positive reactions. He also stated that Nigerians did first things last as they preferred a fire brigade approach to issues rather than strategic planning.105

Dan Anarene wrote that the unfortunate World Court verdict which ceded Bakassi to Cameroon was without regard to the principle of impartiality, justice, equity and fair play. The composition of the court was lopsided and not properly calculated to reflect fairness on the part of some of the judges. He stressed that the inclusion of judges from Colonial Masters countries was not good enough and might have influenced the ICJ decision especially that of France from where the lead judge came106. Chidi

101 Vanguard, Thursday October 3, 2002, p.6. 102 Punch, Friday, November 1, 2002 p. 3. 103 Punch, Wednesday, October 6, 2002, pp. 1-2. 104 Punch, Wednesday, October 16, 2002 105 Vanguard, Monday, November, 4, 2002. Emphasis mine.? 106 Daily Champion, Friday, November, 29, 2002.

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Odikalu, a scholar activist writing on the Bakassi issue opined that Nigeria could have withdrawn from the proceedings after the court dismissed its preliminary objections in June 1998 or after the court declined to entertain the Nigerian request for interpretation of the preliminary objection decision in March 1999. Professor Amechi Uchegbu- professor of International Law, was of the opinion that Nigeria must respect the verdict or else the UN will come down hard on Nigeria for daring to challenge the decision of the court. In his words “the Bakassians became aliens in a foreign country Cameroon, the very moment the decision was pronounced from a legal point of view.”107

Another legal luminary, Itse Sagay a professor of Law, commenting on the ICJ’s judgment said, “We cannot apply for the revision of the judgment as some laymen have suggested because we cannot meet the conditions for revision.” He opined that the next port of call was not the court, but the Security Council, since by the UN Charter, each member-State of the UN undertook to comply with the decision of the ICJ in any case to which it is a party. The enforcement of the judgment is bestowed on the Security Council. The wordings for this authority is such that it gives the security council power to exercise some discretion and judge the rationality, fairness, correctness and justice of the judgment before taking a decision on enforcement.108 According to Sagay, the judgment is not the end of the case but rather opens a new chapter for fresh initiatives. He advised the Federal Government of Nigeria to start seeking the pleasure even if only one member of the Security Council, though beside France, so that the Bakassians will not be abandoned to a hellish and slavish existence.109 Otunba Shobowale-Benson, a one-time Federal Minister of Information under the First Republic considered the Bakassi case concluded with the failure to get a “yes” vote at the 1961 referendum, which subsequently made the ownership of Bakassi a mute point. Immediately after, a no-less authority in the person of Dr Taslim Elias (the then Federal Attorney General)110 advised the Federal Government to let go of any plans to repossess Bakassi. He however, advised that Nigeria should accept the ICJ’s decision, but however use diplomacy and

107 Uchegbu is the head of department of Jurisprudence and International Law at

the University of Lagos. See Thisday, Tuesday, October 22, 2002, p.38. 108 Guardian, Tuesday, November 12, 2002, p.12. 109 Ibid. 110 Taslim Elias became a Judge of the ICJ in 1975 and later rose to become the

first African President of the Court until his death in 1991.

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dialogue to ensure that those Nigerians living there were left alone to pursue their normal lives, peaceably, anything to the contrary will further demean the image of Nigeria in the international political scene.111

Okoi Ofem, a Nigerian citizen, in his opinion considered the ICJ verdict in all intents and purposes outrageous, bilaterally unjust and patently unsupportable and also that the loss was as a result of successive military involvement in Nigeria politics and pre-occupation of the leaders to amass wealth at the expense of the citizens.112 The Bakassian View Within the heat and confusion generated by the loss of the oil-rich peninsula, the Bakassians at a press conference held in Abuja called on the United Nations to conduct a referendum to enable them decide where they want to belong between Nigeria and Cameroon. Further, according to their spokespersons, Senator Florence Ita-Giwa and Mr. Ene Okon of the House of Representatives (as they were then) “the people of the Bakassi are not bound by the decision”.113 Florence Ita Giwa, a Senator114 stated that the Bakassians are desperate to remain in Nigeria and they are ready to go any length to remain in Nigeria. If that fails, rather than go to Cameroon they will declare a Republic of Bakassi.115 Similarly, the Caretaker Committee Chair of Bakassi Local Government Area Mr. Enyang Inyang lamented that, “It is pathetic. It is unjust; it is impossible and cannot happen.”116 The responses and reactions we have articulated above capture the voices of Nigerians, informed and not so informed, moderate, reactionary and proactive. The interesting dimension is that there is a very thin line between government officials (including law makers and policy implementers) and official reactions from that of the general public. The views were as diverse as the people itself. The preponderant view was that Nigeria should not cede Bakassi to Cameroon but work out even if by extra- judicial means settlement that will tilt in its favour.117 Some of the views

111 Guardian, Friday, November 15, 2002, p.45. 112 Thisday, Tuesday, October 29, 2002, p.11. 113 Vanguard, Thursday, October 31, 2002, p. 7. 114 A Senator of the Federal Republic of Nigeria as she was then and also

representing Bakassi, which was affected by the ICJ’s ruling. 115 Punch, Saturday, November 2, 2002 116 Thisday, October 22, 2002, Vol. 8, No. 2739, p. 41 117 Guardian, Wednesday, October 16, 2002. Tunji Otegbaye, advocated for a

peaceful resolution to the Bakassi episode stating that going to war is not a

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apportioned blame to Britain and the rest of the West, as well as to Nigerian Leaders. Some of the views went as far as impugning the character and composition of the ICJ, imputing bias. Some suggested that Nigeria should to war if that became the only way to retain the disputed territories. The Federal Government of Nigeria, particularly previous military regimes got the most bashing for mis-action and inaction118 despite the strategic location of Bakassi and its economic importance.119 Thus, Mike Ikhariale, a NADECO member in his comment was of the view that despite the 1913 treaty, the 1971 and 1975 Yaounde and Maroua agreements between the prodigious Rtd.General Yakubu Gowon and intimidating Ahmadu Ahidjo; the case was actually lost seven years earlier when General Abacha (then military Head of State), spitefully disbanded the strong defence team carefully put together by the then Attorney General, Olu Onogoruwa, due to petty malice and an inexorable phobia against NADECO.120

The least voice heard is that of the Bakassians whose nationality is in question.121 This undoubtedly points to the fact

healthy solution; the product of which will be instability loss of lives and property and unending hostility. He strongly advocated a corridor of peace as opposed to a corridor of war in this issue

118 General Yakubu Gowon got more than his fair share of blame because he was the then military head of state that signed both the Yaounde II and Maroua Declaration reaffirming that the sovereignty of the Bakassi Peninsula resides with the Cameroonians. Ignatius Orisewezie, a journalist feels that the judgment places Nigeria in a horn of dilemma and Nigeria cannot afford to reject it. According to him, the truth is that the Executive Agreement between Nigeria and Cameroon acknowledges sovereignty of Cameroon over Bakassi and this nullified any earlier claims of Nigeria and even without any reliance on the 1913 Anglo-German agreement. See The Post Express, Friday, October 18, 2002, p.11

119 In a press statement, Akwa Ibom and Cross River States indigenes resident in Osun State, condemned the ICJ’s judgment as an attempt to re-write History and take them away from their father land, though they blamed this development on the neglect of the area by successive Federal Government administrations which made it appear as a no-man’s land. According to their spokesmen, Chief Albert Effiong and Michael Effiong “We are not moving an inch, neither shall we cede our hand to Cameroon”, Thisday, Friday, October 18, 2002, p.5.

120 Thisday, Tuesday, October 22, 2002, p.10. NADECO stands for National Democratic Coalition.

121 Despite the tremendous media review and vibrant press in Nigeria. This writer is yet to come across any newspaper or magazine coveragebased on actual visit to Bakassi and intereaction with the people. The views of the

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that they are a marginalized people. As opined by the international campaign for ‘Self- Determination’ of Bakassians:

The Bakassi Peninsula is on the verge of extinction as it is seriously threatened by marine erosion, oil production, lack of communication facilities, transportation and constant fire out break… the entire islands although surrounded by water, lacks portable and consumable water for its inhabitants because of the salinity nature of the water.122

Assisi Asobie’s view reinforces the view that Bakassi and its people were marginalized. According to him, “At first, especially during the colonial days, the peninsula was regarded as ‘worthless zone of contention…a strip of dismal swamp peopled by a few miserable folks”. Later, however, valuable natural resources were discovered in the territory. From then on, the struggle over the territory intensified, manifesting from time to time in violent clashes between Nigeria and Cameroon.123 Prior to the discovery of oil, Bakassi territory and its people were peripheral and marginal in official thinking and calculations both in the British Nigeria, French Cameroon and post- Independence Nigeria State. The question therefore would be whether the interest of modern State Nigeria is propelled by economics124 rather than the welfare of the people considered Nigerians? Is the rejection of the ICJ Judgment by the government of Nigeria in good faith and consistent with previous governmental actions and commitments amounting to admission that sovereignty of the Peninsula belongs to Cameroon?125 Some of these questions raised above may be

people are yet to be captured. It is only the privileged Nigerians who are their spokespersons .

122 Comrade Edem Edem Op. cit., for Akpabuyo Bakassi Green Movement (ABGREMO) the Coordinator of the International Campaign for Self –Determination of Bakassi People- 22 April 2003.

123 “ Conflict Between Nigeria and Bakassi: Political Context and Contending Principles”, VANGUARD, Friday, June 6, 2003, p.19

124 According to information, the Bakassi area is said to have about 330 million barrels recoverable reserves of crude oil, which accounts for about three percent of Nigeria’s reserve capacity of 30 billion barrels. If taken based on the present crude oil price of $27 per barrel it means that the exploration of the above recoverable reserves will certainly earn Nigeria about a whooping $20 billion. DAILY TIMES, Wednesday, October 30, 2002, p. 29

125 In February 1961, before the UN plebiscites Nigerian government had issued an important policy statement committing itself to the principle of uti possidetis juris, which anticipated the plebiscites in Northern and Southern Cameroon. The Nigerian government had then declared that existing boundaries as drawn, however “artificially” by the European colonial powers should be respected and must remain the recognized boundaries until such a

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outside the purview of this paper but the next part may throw some light, especially on the government’s obligations, relations with the comity of nations and how to balance that vis ‘a vis the expectations of the Nigerian people.

6. After the ICJ Judgment: Any Option for Nigeria? The Judgment of the World Court is not self-executing and this brings to the fore the distinction between adjudication and enforcement.126 However, it is final and without appeal.127 In the event of dispute as to the meaning or scope of the judgment, the court shall construe it upon the request of any party. By Article 94 of the UN Charter, the Security Council is to decide on measures to be taken to give effect to the court’s judgment.128 In relation to the enforcement of the Court’s judgment it has been observed:

What is remarkable is that states once having voluntarily accepted the jurisdiction of an international court almost invariably honour its decisions. That was true for PCIJ, and, until recently, was also true for the ICJ. All decisions of the European Court of Justice have been implemented and the enforcement record of the court of Human rights at Strasbourg is also exemplary.129

On the other hand it has been noted that “Although, States have complied with the Court’s judgments in many of the cases, recalcitrant States have, on occasions, refused to comply. The ICJ’s first decision in a contentious case was against Albania for mining the Corfu channel and damaging the British Warships.

time as the people concerned would decide, of their own free will, to merge as one unit- West Africa, 22/10/60, p.1190 quoted by Asisi Asobie, Ibid.

126 There is no automatic enforcement machinery, and some decisions of the court have not been complied with. See Judge Mohammed Shahabuddeen, of ICJ, “The World Court: Image, Mission and Mandate” Published by the Nigerian Institute of Advanced Legal Studies, Lagos 1994.

127 See Article 60 of the ICJ statutes. Note also that by Article 59 the decision of the Court has no binding force except between the parties and in respect of that particular case.

128 Each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party- 94(1). If any party fails to perform the obligations incumbent upon the judgment the other party may have recourse to the Security Council, which may, if it deems it necessary, make recommendation or decide upon measures to be taken to give effect to the judgment.

129 Bejamin B. Ferencz, Enforcing International Law: A Way to World Peace (London/New York/Rome: Oceana Publications, Inc. 1983), p. 482.

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Although the ICJ ruled in 1949 that Albanian should pay monetary damages, Albania has yet to do so. In 1980, Iran refused to comply with the Court’s judgment to release US hostages. And the US continued to support the Nicaraguan Contras in spite of the Court’s 1986 decision saying that the USA’s support violated international law’’.130 The UN Security Council, hampered in part by its veto- wielding members, has yet to take measures to enforce an ICJ judgment. The result according to the above view is that states are turning to other approaches for formal dispute resolution. For example, even when a court is the preferred approach; states are relying more on regional and specialized courts. Possibly, the most important alternative is the increasing use of international arbitration.131

In the Cameroon and Nigerian dispute, the World Court rejected Nigeria’s preliminary objection that it should not assume jurisdiction in the matter because the parties had not exhausted the use of existing bilateral machinery.132 Nigeria at that time wanted the court to allow it to explore non- litigatory and other peaceful means to resolve the conflict with Cameroon. Since, a judgment has been entered in favour of Cameroon concerning the land and maritime boundary dispute by the court is there any other option open to Nigeria bearing in mind the fact that the decision of the court is final? There is an option for Nigeria albeit a limited one concerning the enforcement of Court’s decision. The Court in its judgment delimited the land and maritime boundary of both countries and it is expected that Nigeria and Cameroon should engage in actual boundary demarcation and that in itself presents an opportunity for dialogue on some of the unfinished business of the court especially concerning the nationality of Nigerians living in Bakassi. Not surprisingly, a Commission known as the Nigeria and Cameroon Mixed Commission has been formed. The body was established to follow up on the judgment of the ICJ and specifically to: ensure demarcation of the boundary between the two countries in line with ICJ judgment; to identify affected populations, assessing their situations and provide modalities for the protection of their rights; and to increase confidence between

130 Barry Carter and Philip Trimble, International Law, 3rd Edition ( New York:

Aspen Law and Business,1999), pp. 306-307. 131 Ibid. p.307. 132 See ICJ Reports 1998 pp. 300- 304 or ICJ judgment on Cameroon and

Nigeria pp.29- 33. The Court observed that negotiation between the parties was deadlocked as at the time Cameroon filed the action.

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Nigeria and Cameroon.133 The establishment of this body is a step in the right direction and with careful diplomacy the parties may resolve the issue of the nationality of the Bakassi people. However, Nigeria should bear in mind that they have lost the case of sovereignty and cannot through extra- legal means and without benevolence of Cameroon, (which is remote) get back what it lost at the world court. The suggestions that there are fresh options for Nigeria should be viewed critically. 134Nigeria should not waste resources in exploring fresh options, except to conduct, with the Cameroon or UN’s approval, plebiscites to determine Nigerians who still want to retain Nigerian nationality, identify and re- settle them within Nigeria’s geographical space.

The United Nations Charter has empowered the Security Council to decide on measure to enforce its decision.135 Thus, it is not enough to rely on the fact that the Security Council are yet to enforce certain judgments of ICJ. It all depends on politics, interest and the actors? Already evidence exists that Cameroon was not alone in their claim of territorial title to Bakassi136 and those external influences even if non- state actors may use their respective government to get the Security Council to impose sanction on Nigeria if it fails to comply with the ICJ’s decision.

The extent to which Cameroon is able to muster external support will determine the pressure that will be mounted on Nigeria to respect and ensure effective implementation of the

133 See Guardian, Wednesday, June 11, 2003. The Commission recently rose

from its fourth session in Abuja. The head of the country’s delegation Mr. Bola Ajibola also served as the I.C.J. ad hoc Judge appointed by Nigeria during the hearing of the case at Hague.

134 I read with dismay the suggestion by so- called experts that the decision of ICJ is not binding, but rather advice since there are no penalties for defaulters hence the call to petition the Security Council to review the verdict. See Vanguard, Monday, October 14, 2002, pp. 1-2. Contrary to the views expressed the decision of the court by Article 60 the decision of the Court is final and can only be revised in accordance with Article 61 based on the discovery of new facts and that is also subject to time limitation. The Security Council does not have the power to review or revise the Judgment of the court.

135 See Articles 94, 25 and 41 of the UN Charter. 136 Asisi Asobie noted that “…the government of Cameroon was under domestic

and foreign political and economic pressure to secure effective control over the disputed territory… a number of multinational oil companies then undertook explorations in the disputed area on behalf of the Republic of Cameroon, and these yielded positive results, thereby reinforcing the desire of the Cameroonian government to consolidate its claim to territory”. See Vanguard, Wednesday, June 25, 2003, p. 39.

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Court’s decision. Nigeria had a weaker case concerning the dispute between it and Cameroon. Therefore, it is highly inconceivable that Cameroon will concede already gained ground following the World Court’s decision.

7. Conclusion The state of Nigeria has both positive and negative attitudes toward certain rules of international law… The major factors responsible for her attitudes toward international law, despite the cultural, religions, social and linguistic differences of her people, include her past experiences under colonization, her desire for rapid development, and her sociological approach to International law. The Nigerian State although pragmatic and selective in its approach, is basically interested in the strengthening of the rules of international law and has been more like a radical reformist than a negative rejectionist.137

Undoubtedly, Nigeria has worked to strengthen the principles of international law, helped to build sub- regional, regional and continental alliances.138 Thus, Nigeria has been described as a regional power or a regional patron whose political leaders are desirous to develop a distinct and influential voice of itself and Africa.139 In furtherance of its objective to strengthen international law and principles, Nigeria government made a declaration and submitted to the compulsory jurisdiction of the International Court of Justice under Article 36 (2) of the Statute.140 Cameroon made a similar declaration to accept ICJ compulsory jurisdiction,141 thus both countries by these separate independent actions conferred compulsory jurisdiction on the Court to determine all legal disputes concerning the interpretation

137 Christian Okeke “International Law in the Nigerian Legal System” A Paper

Presented at the United Kingdom Conference of the African Society of International and Comparative Law held at University of Nottingham England, June 29, 1996. The paper discussed Nigeria attitude toward international law and the rules of international law. See pp 25-26.

138 It pioneered the establishment of ECOWAS, ECOMOG and a major player in African Union and several regional initiatives in particular the NEPAD.

139 Dr, H. Assisi Asobie, “Nigeria as a Regional Power” A Paper Presented at a Conference on “Consolidating Democracy; Nigeria in Comparative Perspective”, Sintra, Portugal, 21- 25 September, 1999.

140 The Declaration was made on August 14, 1965, while the instrument was deposited with the Secretary General of the UN on September 3, 1965.

141 On March 3, 1994 and thereafter they instituted the action against Nigeria on the March 29, 1994.

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of treaty, any question of international law, the existence of an international obligation, or the nature or extent of reparation for such a breach.142 The World Court decided the case in the exercise of its jurisdiction in contentious matters.143 The judgment of the court followed laid down procedure and can hardly be impeached except for failure to consider humanity144, which the court is not bound to do and in any case may be constrained based on uti possitendis principle.145 What remains to be done is enforcement of the ICJ judgment that gave sovereignty of the disputed territories to Cameroon. Since, enforcement of international law will help to enthrone peace amongst nations, we submit that Nigeria should comply totally with the judgment and be open to take advantage of any concession made by Cameroon- the adjudged winner.

Nigeria has to show a high degree of conformity to bilateral and multilateral treaties it has signed and ratified. It has option of not being a contracting party and at that stage it is best for it to examine closely the implications of its being or not being a state party to an instrument of international law, its domestic effects on its national laws and other interests. Once it passes that stage and goes on to ratify, it cannot turn around to argue that it is not binding on it. The problem today is that those charged with the conduct of our external relations in Nigeria often act before they think and at times do not possess the capacity to do systematic analyses that will be in the best interest of the country. Cameroon, with regard to its land and Maritime boundary dispute was more calculative and consistent and systematic in their approach. It ratified the Vienna Convention on Law of Treaties only in 1991 and accepted the ICJ compulsory jurisdiction in 1994, no doubt, pre-emptory to its bringing Nigeria before the International Court of Justice. This should be a lesson for Nigeria to take seriously instruments they ratify and in all ramifications

142 See in general Article 36 and in particular 36(2). Note as at July 1998, only 72

States had made declarations under Article 36(2) of the Statutes of the Court accepting compulsory jurisdiction. 12 out of such declaration have expired or terminated and only 60 of such declarations are in force. See Barry Carter and Philip Trimble, International Law, Op. cit., p. 305.

143 The ICJ has jurisdiction in two types of cases: contentious and cases seeking advisory opinion. Note only the UN can seek for Advisory Opinion from the Court.

144 Specifically in respect of the people of Bakassi 145 The OAU Charter (AU) reaffirmed the principle of the inviolability of the

frontiers of member states as attained at the time of independence.

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examine its legal, economic, political and other consequences. International law confers benefit and burden, and in law one is stopped from approbating and reprobating at the same time. In relation to the case between Cameroon and Nigeria we must take the burden of our official action and inaction including the inglorious vestige of colonization, which we have previously indicated to be bound by. If Nigeria considers itself a major actor in African and World affairs and wants to be viewed as a major actor at the international level and in the evolving global community it needs to respect established norms and standards. It should not wait for the international system to compel it to observe, enforce and respect the ICJ judgment.

Postscript The Greentree Agreement between Cameroon and Nigeria was signed on June 12, 2006 in Greentree, New York, USA by both Nigeria and Cameroon. For the Republic of Cameroon: Paul Biya, for the Federal Republic of Nigeria: Olusegun Obasanjo. In observation to witness the conclusion of that agreement were: For the United Nations: Kofi Ata Annan; for the Federal Republic of Germany, H.E. Gunter Pleuger; for the United States of America: H.E. Fakie Sanders; for the French Republic: H.E. Michel Duclos; for the United Kingdom of Great Britain and N. Ireland - H.E. Koren Pierce.146 By the Greentree agreement, Nigeria recognized the sovereignty of Cameroon over the Bakassi Peninsula in accordance with the judgment of the International Court of Justice of 10 October 2002 in the matter of Land and Maritime Boundary between Cameroon and Nigeria. Cameroon and Nigeria recognize the land and maritime boundary between the two countries as delineated by the Court and commit themselves to continuing the process of implementation.147 Nigeria agrees to withdraw all its armed forces from the Bakassi Peninsula within sixty days of the date of the signing of this Agreement.148

Article 3 of the Greentree agreement should be of particular importance to Bakassi people as it clearly states that 146 Available at http://www.dibussi.com2006/06 bakassi_peninsu.html, last

accessed October 12 20009. Also, http://www.dibussi.com/eye_on_africa, last accessed October 12, 2009.

147 Ibid. See article 1 of the Greentree Agreement, June 2006. 148 See article 2 of the Greentree Agreement, June 2006. Note: If exceptional

circumstances so require, the secretary-general of the United Nations may extend the period, as necessary, for a further period not exceeding a total of thirty days. This withdrawal shall be conducted in accordance with the modalities envisaged in annex 1 to this agreement.

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Cameroon, after the transfer of authority to it by Nigeria, guarantees to Nigerian nationals living in the Bakassi Peninsula the exercise of the fundamental rights and freedoms enshrined in international human rights law and in other relevant provisions of international law.149 In particular, Cameroon shall: (a) not force Nigerian nationals living in the Bakassi Peninsula to leave the Zone or to change their nationality; (b) respect their culture, language and beliefs; (c) respect their right to continue their agricultural and fishing activities; (d) protect their property and their customary land rights; (e) not levy in any discriminatory manner any taxes and other dues on Nigerian nationals living in the zone; and (f) take every necessary measure to protect Nigerian nationals living in the zone from any harassment or harm.150

On August 14, 2008, the Federal Government of Nigeria, following the Greentree accord, formally handed over Bakassi to the Cameroonian Government amidst agitations by the inhabitants of the area, under the aegis of Bakassi Self Determination Front.151 The indigenes however, enjoy the sympathy of other Nigerians who are of the opinion that the indigenes had the right to choose where they belong, whether to Cameroon or Nigeria. The status of the inhabitants of the Bakassi peninsula perhaps will remain a sore point in the ICJ judgment for a long time to come and only time will tell whether the Nigerian Government will decide to appeal the judgment. Meanwhile, the Cameroon-Nigeria Mixed Commission was established for the purpose of implementing the ICJ ruling. The United Nations is supporting Cameroon and Nigeria in implementing the ICJ ruling through the Cameroon-Nigeria Mixed Commission and the Follow-up Committee on the Greentree Agreement related to the Bakassi peninsula, both chaired by the United Nations. The demarcation is ongoing and it will certainly take some years for that complex work to be completed.

149 Art. 3 (1). 150 Art. 3 (2) sub paragraphs a- f. 151 It is on record that on 22 November 2007, the Nigerian Senate rejected the

Greentree Agreement ceding the area to Cameroon, on the ground that it was contrary to Section 12(1) of the 1999 Constitution. Despite that the handover took place in August of 2008. See http://en.wikipedia.org/wiki/Bakassi, last accessed June 10, 2010.