EFFECT OF FORCED MARRIAGE ON THE NIGERIAN YOUTH

Forced marriage is a marriage in which one or both of the parties is married without his or her consent or against his or her will. A forced marriage differs from an arranged marriage, in which both parties consent to the assistance of their parents or a third party (such as a matchmaker) in identifying a spouse, although the difference between the two may not be clear cut. There is often a continuum of coercion used to compel a marriage, ranging from outright physical violence to subtle psychological pressure. Forced marriage is still practiced in various cultures across the world, particularly in parts of South Asia and Africa. Some scholars object to use of the term “forced marriage” because it invokes the consensual legitimating language of marriage (such as husband/wife) for an experience that is precisely the opposite. A variety of alternatives exist, including forced conjugal association, and conjugal slavery.

The United Nations views forced marriage as a form of human rights abuse , since it violates the principle of the freedom and autonomy of individuals. The Universal Declaration of Human Rights states that a woman’s right to choose a spouse and enter freely into marriage is central to her life and dignity, and equality as a human being. The Catholic Church deems forced marriage grounds for granting an annulment — for a marriage to be valid both parties must give their consent freely. Supplementary Convention on the Abolition of Slavery also prohibits marriage without right to refuse of herself out of her parents’, family’s and other persons’ will.

Forced marriage does not only occur within one sex alone. It applies to both sexes but it’s more prevalent among the female. This is because of the fact that the Nigerian and indeed African perspective has it that the woman is under the authority, whims and caprices of her parents and is subject to whatever decision made to her by her parents (however this notion is gradually changing). This is in contrast to the leverage permitted to the men in doing their will and carrying out their actions freely. This article seeks to highlight the ills in the factors that lead to forced marriages and why it should be permanently stopped. Note should be taken however, that Child Marriage will not be taken into consideration as that is different from forced marriage.

There are numerous factors which can lead to a culture which accepts and encourages forced marriages. Reasons for performing forced marriages include: strengthening extended family links; controlling unwanted behavior and sexuality; preventing ‘unsuitable’ relationships; protecting and abiding by perceived cultural or religious norms; keeping the wealth in the extended family; dealing with the consequences of pregnancy out of wedlock; considering the contracting of a marriage as the duty of the parents; obtaining a guarantee against poverty; aiding immigration. Some of the consequences to this ill factors will be discussed herein.

Early and forced marriages can contribute to putting people, specifically girls, into a cycle of poverty and powerlessness. Most are likely to experience mistreatment such as violence, abuse and forced sexual relations. This means that They are more likely to be dominated by their husbands. Young married girls are more likely to contract HIV and their health could be in jeopardy. Most people who are forced into a marriage lack education and are often illiterate. Young ones tend to drop out of school shortly before they get married.

Depending by jurisdiction, a forced marriage may or may not be void or voidable. Victims may be able to seek redress through annulment or divorce . In England and Wales, the Matrimonial Causes Act 1973 stipulates that a forced marriage is voidable. In some jurisdictions, people who had coerced the victim into marriage may face criminal charges. Forced marriages are often related to violence, both in regard to violence perpetrated inside the marriage (domestic violence), and in regard to violence inflicted in order to force an unwilling participant to accept the marriage.

Marriage by abduction, known also as bride kidnapping, is a practice in which a man abducts the woman he wishes to marry. Marriage by abduction has been practiced throughout history around the world and continues to occur in some countries today, particularly in Central Asia, the Caucasus and parts of Africa. A girl or a woman is kidnapped by the groom-to-be, who is often helped by his friends. The victim is often raped by the groom-to-be, for her to lose her virginity, so that the man is able to negotiate a bride price with the village elders to legitimize the marriage. The future bride has most often no choice but to accept: if the bride goes back to her family, she (and her family) will often be ostracized by the community because the community thinks she has lost her virginity, and she is now ‘impure’.

A forced marriage is also often the result of a dispute between families, where the dispute is ‘resolved’ by giving a female from one family to the other. In Nigeria, this form of forced marriage is still goes in some cultures. Between families, clans or even villages. Vani is a cultural custom found in parts of Pakistan wherein a young girl is forcibly married as part of the punishment for a crime committed by her male relatives. Vani is a form of forced child marriage, and the result of punishment decided by a council of tribal elders named jirga. This should be curtailed because the adverse effect it has on the victim. The notion is that we are giving out our daughters to their death call.

Widow inheritance, also known as bride inheritance, is a cultural and social practice whereby a widow is required to marry a kinsman of her late husband, often his brother. It is prevalent in certain parts of Africa. The practice of wife inheritance has also been blamed for the spread of HIV/AIDS. Most times, even in Nigeria, the victim may not like the kinsman of her late husband which she is forced to marry and may even be way older that her. Allowing the kinsman inherit her would be, I would say, an infringement of the victim’s right to personal liberty as enshrined in Sec.35 of the Constitution of the federal republic of Nigeria 1999.

Forced marriage can occur in the situation where in an unmarried couple, one partner forces (through violence or threats) the other partner to enter the marriage. Ending a forced marriage may be extremely difficult in many parts of the world. For instance, in parts of Africa, one of the main obstacles for leaving the marriage is the bride price. Once the bride price has been paid, the girl is seen as belonging to the husband and his family. If she wants to leave, the husband may demand back the bride price that he had paid to the girl’s family. The girl’s family often cannot or does not want to pay it back.

In conclusion, it can be rightly deduced from the foregoing the adverse consequences forced union or marriage has and how it can totally ruin the life of a youth. We should allow our youths the privilege of choosing whom their heart desires to marry and not impose our selection on them. Forced marriage should be seriously frowned at, in all cultures in Nigeria and should be permanently eliminated. From the factors and consequences elucidated above, it can be alleged that, legally forced marriage is not acceptable and in this case it is also morally not acceptable. Hence it would not be uncanny to receive criticisms and stiff oppositions from the society on this issue. My humble plea to those families, culture and communities that still practice or allow forced marriage, to desist from such an act and further protect and promote women’s rights and freedom.

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THE PRESIDENT’S EXECUTIVE ORDER

 

It is a notorious fact that there is endemic corruption and crime in Nigeria. In foreign countries, Nigerians are regarded as corrupt people and treated as pariahs on the ground that they are Nigerians who hail from the most corrupt country in the world.

Over the years, successive governments have enacted special penal legislations designed to combat the high incidence of corruption and established institutions of enforcement. Today, the plague of corruption still ravages the country.  The trend all over the world is to prevent the accused person from retaining the proceeds of his crime. Determined to take stern measures to tame the cancerous monster, the Executive Order No. 6 of 2018 “on the Preservation of Assets connected with Serious Corruption and other Relevant Offences,” recently signed by President Muhammadu Buhari, has generated diverse reactions across the nation. While some people condemn the order, others applaud it as the right tool to fight the war against corruption. Using the extant Constitution of Federal Republic of Nigeria and decided cases as a gauge, it’s significant to reflect on the constitutionality and human rights implications of the Executive Order No.6.

The President’s Executive Order has a disturbing semblance of a decree that obtains only in military regimes. It also runs contrary to Section 36 (5) of the 1999 Constitution, which states that Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Moreover, the timing of the Executive Order, irrespective of the government’s argument of its good intentions, could be prone to abuse. And those who feel concerned that it could be applied against persons who are victims of wrong suspicion may not be crying wolf.

Section 36 of the Constitution codified the principles of fair hearing and presumption of innocence. It clearly states that whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within reasonable time by a court or tribunal. It provides that every person charged with criminal offence shall be informed promptly in the language he understands, the details of the nature of the offence and be presumed to be innocent until proven guilty.

The provisions of the Presidential Executive Order No. 6 of 2018 on the Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences,  recently issued by President Muhammadu Buhari raises serious issues of constitutionalism, legality and due process of law. Nobody doubts the fact that corruption is a very serious threat to Nigeria’s development and the realisation of the human rights and fundamental freedoms of the majority of the population, especially in matters of economic, social and cultural rights. Indeed, there is a constitutional obligation in the Fundamental Objectives and Directive Principles of State Policy in Section 15(5) for the state to abolish corrupt practices and the abuse of power.

The foundation for the challenges is the supremacy of the clause found in Section 1(3) of the Constitution, which declares that if any other law is inconsistent with the provisions of the constitution, the constitution prevails and such law shall to the extent of its inconsistency be voided.  The constitution assigns legislative powers to the legislature while giving executive and judicial powers to the executive and judiciary respectively. Although a water tight separation of powers is impossible, the constitution guarantees separation of powers to the extent that no arm encroaches on the duties and powers of the other. The language of Section 5 of the constitution defining executive powers of the Federation vests same in the President and his support crew, extends to the execution and maintenance of the constitution, all laws made by the National Assembly and to all matters with respect to which the latter has, for the time being, power to make laws.

From the foregoing constitutional executive mandate, an executive order can only be issued to enforce already existing powers, duties and mandates under existing laws; to manage staff and resources of executive agencies for greater economy, efficiency, effectiveness and for the realisation of high level policy goals. Therefore, an executive order cannot be used by the executive to create new powers, duties or rights or expand existing ones beyond the mandate given by the legislature. Instances of previous executive orders will demonstrate this. The executive order on support to local content in public procurement was made pursuant to the fulfillment of the domestic preference section of the Public Procurement Act, 2007. Thus, there was an existing law which had made provision for local content and the executive order merely sharpened and clarified how it will be implemented. Further, executive orders cannot be used to encroach on the province of duties already guaranteed by the Constitution to another arm of government. Any such purported exercise of power under the two scenarios above will be ultra vires the executive and as such will be void to the extent of its inconsistency with existing laws and the Constitution. It is pertinent to note that in no part of the Constitution is the term “executive order” used and one could argue that executive orders are unknown to our jurisprudence. However, Nigeria seems to be copying this practice from the American presidential practice since our Constitution is modeled after theirs. It is as such conceded that there is nothing wrong if we adopt the practice in Nigeria.

Executive order No.6, to the extent that it seeks to restrict dealings in suspicious assets subject to corruption related investigation or inquiries in order to preserve same in accordance with the rule of law and to guarantee and safeguard fundamental human rights is a welcome development. Preservation of the subject matter of corruption, so that it is not dissipated is a good objective of criminal law jurisprudence. To the extent that it urges and encourages the Attorney General of the Federation to take steps through the judicial process to freeze and hold onto assets so that they are not dissipated is quite proactive of the President. Further, the extant practice where the state after investigations, goes ex-parte before a judge for a temporary freezing order and thereafter serves the suspect the ex-parte order, which invites the person to come and prove that he legally and legitimately acquired the property in question is still good practice. Although there may be arguments of reversing the presumption of innocence, it is still a good practice which has evolved from assets recovery jurisprudence across the world, especially when the assets far exceed the legally known sources of income of the suspect. Constitutionally, this can be justified as facts peculiarly within the knowledge of the suspect, being a particular fact which he has the burden of proving under the fair hearing rules.

The power to determine which assets should be subject to temporary or final confiscation is a judicial power vested in the courts by Section 6 of the Constitution for the determination of the civil rights and obligations of the citizen. This is further reinforced by the provisions of the constitution which guarantees that in the determination of civil rights and obligations, fair trial by a court or tribunal established by law and constituted in such a manner to secure its independence and impartiality- the fair hearing rule. It is also supported by the constitutional right to property and freedom from expropriation without due process. Essentially, preservation of assets, subject matter of corruption must be done within the confines of the rule of law, through powers and duties conferred by already existing statues or through the orders of courts of competent jurisdiction. It cannot be achieved by an executive order as executive orders cannot be the basis for the creation of new rights, duties, powers and mandates. Also, no two cases are the same and in the absence of an enabling law, a schedule in an executive order cannot be the basis for the forfeiture of assets, whether temporary or otherwise. The order for temporary forfeiture or forfeiture pending the determination of the case is to be made on a case by case basis, after the court has duly examined the circumstances and the preliminary weighing of the available evidence.

Creating a schedule in an executive order and listing the names of suspects or accused persons whose property the executive order purports to block or freeze is like placing the cart before the horse and as such, it is illegal, unconstitutional, null and void and an audacious attempt by the President using his Attorney-General to usurp judicial powers. For accused persons who are already before the Courts, the Attorney-General knows the appropriate application(s) to bring or file to achieve freezing or blocking. For suspects who have not been charged to court, there is also a known legal procedure which the Attorney-General can take to achieve freezing.

The law is settled that he who asserts must prove. In the Nigerian criminal justice system the state has the burden of proof and this burden does not shift. Section 43 of the Constitution guarantees the right to own property while section 44 forbids compulsory acquisition of property. In Onyirioha v IGP (2009) 3 NWLR (pt.1128) 342 the court held that asking the accused to deposit the quarter of the amount he alleged to have stolen presupposes that the accused actually committed the offence. The court per Ogunwumiju, JCA held: I am of the fervent view that onerous provisions in Section 18(1) of the Advance Fee Fraud and Related Offences Amendment Act is a violation affront to the provisions of Sections 35(1), Sections 36(5) and Section 6 of the 1999 Constitution and against Article 7 of the African Charter on Human and Peoples’ Right Enforcement Act, Cap.10 Laws of the Federation and it should be struck down. The Supreme Court confirmed this in Controller of Prisons v. Adekanye (1999) 10 NWLR (PT.623) PG 400. It offends all democratic sensibilities and is repugnant to the tenets of presumption of innocence.

In a democratic dispensation, one had heaved a sigh of relief that the draconian laws are over, dead and done with. The courts of the land should not stand for their resurrection. Crimes must and can be fought with the aid of the courts in a civilised and avant garde manner in such a way that the court would not negate public policy but enhance it by pronouncements that cover the public good and do not submerge human rights. To submerge human rights on the altar of public policy would be counterproductive and unhealthy for our democracy. Under Nigerian jurisprudence, interlocutory injunctions may be granted to the police for preservation of proceeds of crime. However, in line with the tenets of rule of law and fair hearing, the police must apply to the court for the injunction. On the contrary, Executive Order No.6 seeks to impose punishment on its victim by way of forfeiture of property on basis of suspicion. True enough, corruption has eaten deep into our system that this country is almost at a standstill. Transparency is lacking in every sector, such that corruption is about to assume a normal way of life which is dangerous for the existence of this country. However, Nigeria operates a constitutional democracy with powers constitutionally assigned to the three recognized arms of the government. While I lend my support to the fight against corruption in Nigeria, it is submitted that Executive Order No. 6 negates the ancient doctrine of presumption of innocence enshrined in the Constitution as it casts the aura of criminality and guilt on its victims even before conviction.

In conclusion, the road to hell is paved with the best of intentions, with golden promises of achieving Eldorado. Accumulating incredible amount of powers in the Presidency is a sure recipe to dictatorship, anarchy and the collapse of democratic rule. There are clear cases of corrupt transactions where a prima facie case has been established and the administration refuses to prosecute. The grass cutting scandal of the former Secretary to the Government of the Federation is a case in point. And now, an arbitrary list of persons whose assets are to be forfeited! This is not the democracy we fought. It is my opinion to the President and the Attorney-General to go back to the courts and ask for forfeiture of assets to preserve the res on a case by case basis and let the courts decide.

THE FATE OF INTERNATIONAL LAW

The US airstrike against a Syrian air force base on April 7 was the first action of the new Donald Trump’s administration to attract widespread support, garnering positive responses even from critics.

From a legal standpoint, this is all the more surprising since the attack was technically an act of aggression against a foreign country and a clear violation of international law.

But the suspected sarin-gas attack against Khan Sheikhun that killed more than 80 civilians has stirred up emotions. Shared outrage may well lead to the emergence of a new norm in international law justifying unilateral military force to sustain the ban against the use of chemical weapons.

NO LEGAL JUSTIFICATION, BUT WIDE SPREAD SUPPORT

Under international law, there are only two justifications for the use of force: authorisation by the United Nations Security Council or self-defence.

Neither holds in this case. The UN Security Council has condemned the Bashar al-Assad regime’s use of chemical weapons against civilians but it has not called for an armed response, and most experts consider that attacking Syrian children does not constitute a direct threat to the US or its allies.

This is a crucial difference from the ongoing US strikes against the Islamic State on Syrian soil, which Washington justifiesas support for Iraq’s self-defence.

Despite the absence of legal justification, only Russia and Iran have forcefully spoken out against the US missile attack, branding it illegal. Most world leaders welcomed the air strikes and hailed them as a strong signal in the fight to end the use of chemical weapons.

German chancellor Angela Merkel and French president Francois Hollande issued a joint statement in defense of Trump’s action, and the leaders of countries as diverse as Japan, Turkey, Canada, Saudi Arabia, Poland, Italy and Denmark have all supported it.

According to US Secretary of State Rex Tillerson, Chinese President Xi Jinping also did not condemn the strikes and offered a measure of support by confirming its opposition to the use of chemical weapons.

The heads of the European Union and NATO have both stated their belief that the use of chemical weapons “cannot go unanswered”.

THE CREATION OF A NEW NORM

Trump’s strike is thus about more than just “gesture politics”. It represents the creation of a new norm in international law that sanctions the unilateral use of force to punish those who use chemical weapons, especially against civilians.

New international law can be created not only through treaties and declarations but also established by state practice, as long as the behaviour is accepted by other states as legal and justified. This process can take decades.

But the outlines of one new rule have just been defined.

First, any use of force must be directed against targets that are related to the actual use of chemical weapons. The US struck only after it confirmed that sarin had been unleashed on the Syrian people, and targeted its missiles at the base from which the attacking planes had launched.

Second, any such counter strike must be designed to minimise civilian casualties. The attack apparently avoided the building suspected to store the chemical weapons, since an explosion there might have caused them to be spread widely, increasing civilian casualties.

To prevent Russian casualties, the US even warned the Russian military of the attack, which almost certainly ensured that the Syrian officers responsible for the gas attack could flee along with their Russian colleagues.

What remains unclear is the scope of this new principle. When, in February 2017, Human Rights Watch reported that the Assad regime had coordinated chlorine-gas attacks against civilians in Aleppo using crude barrel bombs, the news did not trigger a response from the Trump administration.

Images from the Khan Sheikun attack seem to have stirred Trump’s emotions, and there are reports that the heartbroken response of his daughter Ivanka influenced him as well. While it first appeared as if the Trump administration intended to differentiate between sophisticated chemical weapons, such as sarin and military use of industrial chemicals such as chlorine, White House Press Secretary Sean Spicer soon confirmed that the US would use force to punish Assad for any use of chemical weapons.

CHEMICAL WEAPONS MUST NOT GO UNPUNISHED
Whether inspired by Trump’s head or heart, this new logic marks a significant divergence from the previous administration. President Barack Obama shied away from using military force in response to Assad’s first sarin gas attack against civilians in Ghouta in 2013.

At that time, Russian President Vladimir Putin proposed a new international-legal principle: if a state deploys chemical weapons against civilians, it forfeits the right to use them and must destroy its supplies. The Organisation for the Prohibition of Chemical Weapons received the 2013 Nobel Prize for peace for supervising this process in Syria, and Assad was forced to join the Chemical Weapons Convention.

Now that Syria has broken this agreement and again used chemical weapons (which were either hidden from inspectors or freshly produced), Obama’s stance has offered Trump a viable platform for using military force – he can point to Syria’s violation of the convention it signed four years ago.

Still, establishing a new principle is not straightforward. Germany expressed support and understanding for the strikes while stressing that its military would not offer support to similar operations without UN authorisation, as German law bans wars of aggression.

Russia, meanwhile, has countered the US threat to Assad by stating that it would use armed force in response to further US attacks, whether motivated by the use of chemical weapons or not.

Even the White House has wavered on the reasoning for its missiles. Trump first argued that preventing Assad from using chemical weapons was a “vital national security interest of the United States” (seemingly claiming a form of self-defence) before the White House clarified that the use or proliferation of chemical weapons “should be a concern to every nation”.

The US now sustains that action in Syria was meant to support the new principle thatthe use of chemical weapons against civilians must not go unpunished, regardless of the UN’s position.

This muddled language is typical of a norm-creation processes in which an action that clearly goes beyond existing law is receiving widespread international support.

Though codification of a new norm can take decades, the principle can become accepted practice long before that. Today, it seems that the consensus against the use of chemical weapons is so universal that states have begun to improvise enforcement rules beyond those included in the Chemical Weapons Convention, which has been signed by every country in the world exceptEgypt, South Sudan and North Korea.

The development of this new norm means that justification is now available to any country that wishes to unilaterally punish another country for its use of weapons of mass destruction. If successfully established, it would undermine the authority of the UN Security Council.

Many states applauding Trump’s actions today do not actually want that to happen, so it will probably be a long time before the new norm is written down. In the meantime, the US has made it clear that it will continue to invoke it against Assad and others.

25 Reasons Why All Law Students Should Participate in the Jessup Competition

September 12, 2016 marked a long anticipated day that will forever change the law school experience for scores of students worldwide. With no exaggeration, it was a day when thousands of law students, practitioners, and academics all looked to one place: the websiteof the International Law Student Association (ILSA). This is because it was the day ILSA, who organizes the Philip C. Jessup International Law Moot Court Competition, released the 2016/17 Jessup problem, also known as the Compromis.

For readers who have been living under a rock, a quick recap of the competition might be in order. The Jessup Competition, often addressed by this mononym, much like Plato or Madonna, is actually named after former ICJ judge (1960-1969), diplomat, and scholar, Philip Caryl Jessup. The competition offers a simulation of a fictional dispute between countries as it unfolds in a case before the International Court of Justice (ICJ). Very few people know that Jessup actually first originated as a friendly advocacy competition between the American JD and foreign LLM students at Harvard Law School in 1960. The competition then expended to other American schools in 1963, eventually opening its doors to foreign teams in 1968. Today more than 550 law schools worldwide participate in the Jessup, representing more than 87 countries. Each team is comprised of between 2-5 participants, with flocks more faculty, practitioners, and alumni providing additional support. These tireless FoJs (Friends of the Jessup) as they are called, take the roles of coaches, advisors, judges, and administrators, and truly are the heart of what makes the Jessup a community. The authors of this post wish to clarify, at this time, that they are lucky enough to be part of this community, and while biased, consider it to be one of their most prized achievements.

Jessup has truly become a brand in and of itself, and the mere title of a “Jessup competitor” probably gleams more about a person than what may be learned from just going over his or her CV. Nonetheless, as the new academic year just welcomed thousands of new law students, many of whom have probably never heard of the Jessup, we thought it would be useful to provide a more extended explanation as to why we feel everyone should get involved with the Jessup at some point in his or her legal education or later career. This is especially important for us to share, given the concern many students have raised in the past, that Jessup involves an exorbitant commitment of time, and might be difficult to do while maintaining good standing in one’s general law school course work. We thus developed this list which we call the “25 Reasons Why All Law Students Should Participate in the Jessup Competition” and we hope that by the end of it, you too will become Jessup enthusiasts.

  1. Starting from the Compromis. Each year the Jessup problem puts forth cutting edge,avant-garde and mostly unresolved legal challenges to its participants. More often than not, the legal questions presented by the Jessup case involve issues that had never been adjudicated by the ICJ. In certain scenarios, the case precedes the actual adjudication of an innovative and largely contested legal issue. In other times, it gives an opportunity to test out what such adjudication might look like, surrounding issues that due to their political volatility, might never find their way to the halls of the principal judicial organ of the United Nations.

To illustrate, recent Jessup cases addressed competing sovereignty claims over islands (2009/10), the legality of targeted killings and limitations on the right to wear religious head-scarves (2010/11), recognition of governments and the protection of cultural heritage sites in times of war (2011/2012), the legal status of climate refugees (2012/2013), use of force in the EEZ and the status of artificial islands (2013/2014), the contested annexation of territory à la the Crimean peninsula (2014/15), and the international law surrounding espionage and low level cyber-attacks (2015/16). This year is no exception as it remains as topical, focusing on such issues as illicit transfer of cultural property, transboundary aquifers, the law surrounding the right to water, and what happens when arguable violations of this right generate refugee outflows.

  1. The Jessup case normally comprises several interwoven fields of international law, thus allowing participants to broaden their knowledge and research and familiarize themselves with materials that very well may not be taught in their law faculties or offered as part of their regular curriculum. Previous Jessup problems presented a complex mix of sub-fields of international law including admissibility, standing, and jurisdiction issues before international fora; the treatment of evidence and questions of burden of proof at the ICJ; the interrelationship between international human rights law and international humanitarian law; investment law; environmental law; the law of the sea; international criminal law; treaty law; state responsibility; and many, many, many more.
  1. Thus, Jessup is not just a good practice for properly analyzing and applying lex latasources and well-established principles and rules; it rather requires participants toapply public international law theories to real life fact patterns. It forces a large number of talented scholars to tackle head-on politically charged issues through legal reasoning. In that regard Jessup plays its own unique role in further developing international law, through the cultivation of a legal discourse where one was perhaps missing. Many participants and faculty rely on their experiences and research during the Jessup year to then produce notes, articles, and blog posts, that further broaden the academic literature surrounding the topics covered in the case. Indeed if you fact-check us, you would find that many doctrinal contributions originated during or developed subsequently to Jessup.
  1. Jessup is all about the research, with students spending months painstakingly perfecting their written briefs, mastering old case studies, and new legal theories. There is absolutely nothing quite like the Jessup, in terms of allowing students to develop their legal research and analytical skills. The Jessup Bench Memorandum (an addendum, never shared with participants, which provides judges with a basic core “check-list” of the legal answers to the case) often reflects just a mere fraction of the knowledge and research conducted by the participants. In fact, the Bench Memorandum doesn’t begin to touch the surface of what students come up with in their independent research. Judges are often amazed at the level of in-depth analysis and archival work that certain teams produce. Accordingly, Jessup offers knowledge that no classroom experience, in any taught degree, is ever capable of guaranteeing.
  1. The Competition is built so as to enable participants to dedicate a substantive amount of time for such autodidactic research. From the moment the case was released on September 12th, until 13 January 2017, when the written memorials will be due (and thereafter until the regional and national rounds), teams and competitors will work thoroughly and mostly independently on mastering the law. You will discover by the end of the Jessup that you have learned incredibly more about the law, from researching it on your own and teaching it to your colleagues, than you would ever do from reading another textbook in a black-letter class.
  1. Importantly, because Jessup is the most prestigious international law moot court competition today, it truly is the best place to study public international law. Where else will you learn how to identify a customary rule, or carefully interpret and parcel together treaty provisions? Where else will you be called to memorize entire sections of the U.N. Charter, or cite minority opinions of ICJ judges? In fact, Jessup is the only place where students are called to examine the lax lata in view of the lex feranda, to engage both the law as it stands with the law as it ought to be. Students are called to apply not only black letter law but also advocate for a position based on policy considerations and their extrinsic rationales. A Jessup competitor thus learns not only to think like a lawyer, but to think like a policy maker – taking into account the ramifications of his argument on the public world order. The student thus learns how to plead for a State, and not just a client.

 

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  1. The result is that students participating in the Jessup become some of the more well-versed scholars on the law in their respected research area. Trust us, if you compete in the Jessup this year, there will be very few people on the planet that will know the law and practice surrounding UNESCO’s List of World Heritage in Danger or the Convention on the Law of Non-Navigational Uses of International Watercourses, better than you will come April. Sounds hard to believe? Try it and see for yourself.

It often happened, in fact, that government ministries sought to reach out to Jessup students precisely due to their newfound expertise. The authors of this blog can attest to this. Following our completion of the Jessup, with the case that year involving the IHL obligation to investigate and compensate for violations, we were approached by a Commission of Inquiry which was working in Israel on drafting a report surrounding the same exact issues. Jessup fiction and real-life events intertwined once more, and we as former participants were better off for it.

  1. Of course, working for the Government is not the only venue by which participants can put their Jessup research into good use. Many Jessup participants have proceeded to engage with the legal issues posed by the Compromis as LLM, PhD, and JSDstudents, writing their master’s thesis and dissertations on the very questions they have encountered in the long months of the Jessup. Others proceeded to practice international law in various prestigious law firms or international organizations and some became academics who research international law. And there are those who have done all the above.
  1. The structure of the Competition requires each team to submit very detailed written arguments (the Memorials) for both the Applicant and Respondent. These written briefs are limited in terms of their space, given strict word count requirements, as well as in terms of their timeframe, with students being required to submit them by early January. It is the nature of the Jessup that each issue can be argued a hundred different ways, yet a written memorial only allows for so many words, and so teams debate each other in an attempt to sharpen their briefs and reach an agreed upon structure. Accordingly, law students have the opportunity to practice some of the most important lawyering skills – meeting deadlines, developing concise legal writing, and choosing between various authorities and legal arguments.

To be sure, these briefs are worth 3 round points (out of a maximum 9), and on many occasions can determine the faith of a round. Notably, technical mistakes, in terms of style and structure, can result in penalties, forcing students to be extremely diligent in their drafting and editing. Law students thus learn the importance of the written pleadings, by putting an emphasis not only on substance, but also on procedural requirements.

  1. At the regional, national, and international rounds, students are required to develop a 45 minutes oral presentation of their claims. Teams are asked to argue their issues in a crisp, structured, and persuasive manner, while citing authorities for each of their points. You can wake up any past Jessup participant in the middle of the night and he will be able to read to you, out of memory, not only the opening and closing of his oral argument but also the wording of Article 38 of the ICJ Statute. And as the old saying goes – “the paper does not refuse the ink” (but an oral argument at the Jessup might). Indeed, once teams delve into their briefs and commence preparations for the oral rounds, they quickly identify the weaker points of their argumentation and come up with ways to sharpen their contentions. Thus, while many moots emphasize advocacy, debating, or writing skills, Jessup stresses all and more while teaching participants thefine arts of litigation.
  1. In fact, there is no other international moot that teaches students the difficult skills of oral advocacy. Teams are required to make their legal claims under strict time restrictions (with a bailiff raising time cards and imposing the time limitations), while answering questions being fired at them by feisty benches of Jessup judges (in fact, it is a trademark of Jessup, which the authors of this post are proud to have in common). Students learn how to eloquently answer legal questions, how to roadmap their arguments, and how to properly address the Court.
  1. Jessup is not only about law and legal pleadings; it is also about tactics and strategy which are very much embedded in litigation work. Competitors learn how to politely correct a Judge who got a fact wrong (and when for strategic reasons choose not to correct him). They learn when it is better to take a question and address it on the spot, or when to ask the bench to hold with you as you are “just getting there.” Students learn when to skip an issue, or concede a point, and how to quickly bounce between alternative arguments. More importantly they learn how to read a bench of judges and develop tools to get the bench to empathize with them as advocates. All in all, Jessup offers participants the opportunity to master an expanded list of priceless oratory skills, which are useful for law students both during their studies and in their later practice.
  1. To win the Jessup it is not enough to just ‘know the law and facts and apply the former to the latter in an accurate way’. After all, law is not an exact science, and the work of trial attorneys is different than that of a laboratory technician or a mathematician. Indeed scientists rely on postulations and previous theories. Jessup competitors, on the contrary, often have little-to-nothing to go on. Put differently, a team may discover that no exact specific case ever touched upon the issue they’re researching, and that no particular treaty administers the remedy sought after, and that merely a handful of papers were ever written on their question (and even they don’t agree on a single point). And yet… it is in this vacuum that best legal analysis develops. The fact that there is not enough black-letter law on many of the Jessup issues, forces students to rely heavily on legal rationales and policy considerations to support their claims. Participants are pressured to learn how to derive rules from divergent cases and how to distinguish authorities by their unique particularities. Students in the process draw inspiration from historical examples, academic theories, general principles of law, the values of the international community, the writings of legal philosophers, and the memoires of international jurists and scholars. This kind of creative critical thinking is absolutely invaluable.

 

(H.E. Hishashi Owada – Judge, ICJ; H.E. Sir Christopher Greenwood – Judge, ICJ; and, H.E. Bruno Simma – Former Judge, ICJ)

 

  1. As any litigator will tell you, even more important than the legal rationales, is an overarching narrative that the advocate is trying to get across to the Judges. Jessup participants learn that in order to argue their case effectively, they must also learn how to convincingly frame the factual-matrix. Participants in the Jessup become story-tellers and truly develop the skills of weaving facts and law to form a persuading account backed by proper legal authorities. This type of skill is extremely useful for anyone who later engages in public speaking, legal or otherwise.
  1. The final element of the oral rounds is the rebuttal and surrebuttal. Most teams would agree that this is the hardest piece to master. No one rebuttal is like the other, and respondent teams get between one and three minutes to figure out how to rebut the rebuttal as they are literally listening to it for the very first time. You may call it “thinking on your feet”, we consider it to be the epitome of legal advocacy; and the winner takes it all. The authors of this post have seen many rounds that were won solely on the basis of a powerful rebuttal or surrebuttal.
  1. You can’t do Jessup alone. There is a reason why the Jessup rules do not permit a one-man-show whereby a single team-member comprises of the team. In fact, even teams of two members are extremely rear. Most times teams will be composed of four and five members, forcing students to work together. Whether you’re good at it or not, you are required to learn how to be “a team player”, as a successful Jessup team is as good as its weakest link. Teams eat together, sleep together, research together, argue together, strategize together, fight together, and make up together. The number of romantic relationships that were launched thanks to the Jessup is matched only by the number of romantic relationships that ended as a result of it. Whether you may like them on a given day or not, as a participant in Jessup, you will soon learn that your best friends from law school are those who have shared Jessup with you. Two examples come to mind: there is the case of the two members that literally became one (Grigory Vaypan & Aleksandra Ivlieva, who got married shortly after they won the Jessup together); and there is the case of the two Jessup authors who became three, giving birth to their child, who was born, of course, during the international rounds. Overall Jessup is a bit like Nokia, connecting people, in various aspects.
  1. But to achieve success, it is not only about working with your cohort of people. Jessup also stands for continuously opening doors for new members and new interactions. First, Jessup will help you to get to know your colleagues, from your own law school. The Competition is open to law students (JD and LLB) as well as to graduate and post graduate law students (LLM, MSL, PhD, and JSD), as long as the specific competitor in question has not engaged in legal practice (see 2017 rules on eligibility). Thus, a team may well comprise a combination of JD, LLM, and PhD students who do not study together, or a team of law students from different years at the same law school. In many respects “seniority” in law school, does not play a role in Jessup; for example a first-year law student may very well do better than an LLM candidate.
  1. Second, Jessup continuously expands its arms to include new teams from different parts of the world. This particularly concerns areas of the world where there might not exist sufficient opportunities for legal writing and research. Last year involved teams from such a diverse list of countries as Afghanistan, Palestine, Venezuela, Uzbekistan, Vietnam, Sri Lanka, Ghana, Macau, Kosovo, Kazakhstan, and Gambia, just to name a few.
  1. The competition not only brings teams and universities from all over the world to the same place, it actually brings people together. It is in the Jessup international rounds where you may see teams from two States who do not share diplomatic relations, or even may not recognize each other, working side by side in a pleasant open and friendly all-welcoming environment. For some teams, Jessup may be the first time they left their home town, their country, or met someone who speaks a different language. Awards such as the “spirit of the Jessup” which was created in 1996 “to recognize the Team that best exemplifies the Jessup spirit of camaraderie, academic excellence, competitiveness, and appreciation of fellow competitors,” and is selected by a vote of the Teams participating at the international rounds – has been a visible way of acknowledging the competition’s commitment to these values. To learn more about thetolerance and acceptance Jessup stands for and witness the battle of some Jessup teams at the international rounds, we urge you to watch “All Rise”, an award winning documentary filmed during the 2013/14 Jessup rounds. We guarantee that the traileralone is enough to make you want to watch the rest, let alone participate in the competition for yourself.
  1. More so, as a truly international competition, the state of origin of the competitors is truly hidden from the Judges and ILSA tries to promote an equality of arms amongst teams, who obviously come from different jurisdictions and have diverging levels of access to academic resources. As Judges in the competition, both authors of this post can attest that we never really know who argues before us. We sometime attempt to guess based on accents or certain court mannerisms, but we know that we are doomed to fail. Similarly, all teams are subjected to the same rules and deadlines. All of them receive the Comprimis at the same date and submit their written memorials by exactly the same time. They are all privy to certain batches of resources provided by thecompromis authors to assist researching teams, and may be further assisted by ILSA in cases where their library has limited resources available. They engage the same legal questions, are prohibited from sharing or discussing their research with other teams, and are called to abide by the same rules of anonymity (see rule 2.17 of the rules of the competition). It is thus not surprising, that non-English speaking countries hold some of the more impressive track-records in Jessup, and one can only turn to last year’s champions, the team members of the Universidad de Buenos Aires of Argentina.

 

 

  1. Due to the diverse nature of the competition, Jessup also offers a unique chance to interact and network with law students, practitioners, and academics from all over the world. In other words, Jessup enables law students to meet their future colleagues and learn from them about possible career and educational paths and opportunities. The most incredible thing at the Jessup is to see a participant engaging in a conversation with the very scholars whom they have cited in their briefs. Let’s just say that a full blown international law nerdapalooza soon ensues.
  1. The fact that Jessup has been sponsored by some of the biggest law firms in the world (Shearman & Sterling and White & Case to name a few) as well as by top Chambers and practices in each of the various participating jurisdictions, who seek to recruit successful participants – is highly indicative of the skills required for the competition and its perceived status.
  1. If your law school days are long behind you, and you did not participate in the Jessup when you could, please don’t get disheartned – that absolutely does not mean that you can’t get involved now. Every year ILSA looks for new members to join its ranks as advisors, coaches, administrators, volunteers, memorial graders, Compromisauthors, and round judges. You will grow through the process, learning the materials with the students you coach or advise and shaping the future of the international legal profession. In fact, one of the authors of this post changed her career completely after judging the DC international rounds. Careful now, Jessup makes you rethink things.
  1. Combined together Jessup helps form a community of international legal scholarswho share a vision for the world and an interest in its further development. This group of exceptional individuals, whom you gain the privilege of calling your colleagues, friends, mentors, and drinking buddies, all continue on to do incredible work worldwide.
  1. Jessup has a history that spans nearly 60 years, which means that thousands of highly qualified lawyers and academics are amongst its alumni. It is thus not surprising that many current and former judges and justices on national and international instances have been involved in Jessup. It is also not surprising that some of the leading partners at law firms and other leading practitioners competed in Jessup at one point or another. Similarly you will find former Jessup participants as politicians and businesspeople, and in your law school at least one of your lecturers (probably your favorite one) will too hold fond memories of his or her Jessup glory days.

So please get involved with the Jessup, find out whether your school already has an established team and see what you need to do to join it ranks. If it doesn’t – start one on your own with the assistance of ILSA. If you are already a lawyer or scholar, get involved with the competition as a coach, advisor, judge, or administrator. This competition can only grow on the basis of the commitment, dedication, and hard work of those who support it and its values. It falls on all of us to do just that.

LIVING IN A RAPE CULTURE

The incessant attack on the female gender by the domineering male category with regards sexual violence have become rampant. Sexual violence, particularly rape, is an offence against the integrity of a person that tends to humiliate the charisma and personality of the victim in a dehumanizing way. What is the reason behind rape? Can it be said to be the advent of technology whereby people try to put in practice their sexual urge from the viewing of pornography on the media? Or can it be traced to poor parental education and defective upbringing? More recently, it has been attributed to the exposure of sensitive body parts by the females thereby arousing the sexual urge of the males which results in them satisfying such desire by all means. A close study of these possible reasons cannot humanly justify the offence of rape. What then, can literally, be ascribed as the reason for the commission of rape?

Rape has been adjudged by most jurisdictions around the world as a punishable offence against the sexual rights of a person. The Criminal Code of Nigeria sufficiently described rape as an unlawful act. Rape, as defined by Section 357 of the Criminal Code is the unlawful carnal knowledge of a woman or girl, without her consent. The term ‘unlawful carnal knowledge’ being an archaic word means sexual intercourse and has been defined by Section 6 to be carnal connection which takes place otherwise than between husband and wife. The offence is punished by Section 358 with a life imprisonment. The Nigerian Criminal only recognizes females to be the victims of rape, which has called for questioning by many Scholars and authors on this core. Personally, I will like to criticize the Nigerian Criminal Code for subjecting Rape to being an offence done to females alone (but that is a topic of further discuss). This is because rape victims are both males and females. In this study, I will illuminate on the possible causes of rape and how it can be curtailed and eventually stopped.

The inception of technology brought with it good tidings. Man’s life became easier as he began to acquire machines and electronics like television set, fly on an airplane, own a smartphone, communicate with someone in a farther region, and all other good things ascribed to the advent of technology. These things were good in essence and as the saying goes “everything that is good also has its bad effects”. Man then began using it for negative purposes and achieving illegal means. Online fraud, hacking, pornography etc. became the other of the day, eroding man from his senses and imprison him to technology. Youths engage in the voracious streaming of pornography via the internet just to satisfy sexual desires. When they don’t feel satisfied, they turn to their fellow human and forcefully try to have sexual intercourse with the victim, thereby leading to rape. Most rape victims are girls and women within the ages of 16 and 30. Why girls? This is because the female genders have been considered to be helpless and fragile and so are susceptible to the vagaries and overwhelming strength of men.

Study has revealed that sexual violence offenders are persons known to the rape victims. They are no distant strangers. The question then becomes, ‘Why will someone I know, rape me?’ A plethora of rape scenarios have been linked with acquaintances or relations of the rape victims. Analysis gotten from a poll in the United States of America has revealed that 3 out of 4 rapes are committed by someone known to the victim. The majority of children and teen victims know the perpetrators. A whopping 59% of the perpetrators are acquaintances, 34% are family members and 7% were strangers to the victim. Also I have gotten to find out that victims of sexual violence who are incarcerated are most likely to be assaulted by jail or prison staff. On a scale of 100%, half of the perpetrators are 30 years old or older,  25% are between 21-29 years, 9% are 18-20 and 15% are 17 years or younger. It should be noted that perpetrators of sexual violence often have criminal histories. Perpetrators use different forms of violence to commit sexual assault.

RAPE CULTURE

In feminist theory, RAPE CULTURE is a setting in which rape is pervasive and normalized due to societal attitudes about gender and sexuality. The sociology of rape culture is studied academically by feminists. Behaviors often associated with rape culture include victim blaming, sexual objectification, trivializing rape, and denial of widespread rape, refusing to acknowledge the harm caused by some forms of sexual violence or some combination of these. Countries that have been described of having “rape cultures” include but are not limited to, Pakistan, India, the United States, the United Kingdom, Canada, Australia and South Africa. In September 2015, a study done by the American Association of Universities consisting a response of 80,000 students, found that 26 percent of women reported forced sexual contact on college campuses while 7 percent reported full penetrative rape. 7 percent of men reported forced sexual contact on college campuses while 2 percent reported full penetrative rape.

Rape culture has been ascribed as detrimental to both women and men. Some writers and speakers have said that it is intrinsically linked to gender roles that limit male self-expression and cause psychological harm to men. According to a political scientist, victims in rape cultures live in fear of random acts of oppressive sexual violence that are intended to damage or humiliate the victim. Others link rape culture to modernization and industrialization, arguing that pre-industrial societies tend to be “rape free” cultures, since the lower status of women in these societies gives them some immunity from sexual violence. The term used to define what men undergo in rape culture is ‘toxic masculinity.’ This is gender stereotype burdening the men in society, depicting men as sexual driven violent beings. The consequence of toxic masculinity is that most male rape victims would not come forward to the police or in a survey, out feelings of shame.

To dismantle rape culture would require the undoing of more than just the normalization and tolerance of sexual assault and rape. It would require addressing gender stereotypes in a patriarchal (male-dominated) society and relieving both genders from their pressures. In a patriarchal society, men are expected to be strong, violent, sexual and controlling. Women are expected to be submissive: weak, passive, decorative and controllable. Emma Watson, the UN Goodwill Ambassador for Women, said at the launch of HeForShe that enabling women to be control and be strong will allow men to relieve themselves of that responsibility, imposed on them by the toxic masculinity in the rape culture. Filmmaker Thomas Keith explained his thoughts on this in his film The Bro Code: How Contemporary Culture Creates Sexist Men. Keith focuses on the sexual objectification of women that has occurred in America for decades. He states that American male culture teaches boys and men to dehumanize and disrespect women. Keith addresses several different forms of contemporary media, mainly focusing on movies and music videos that show womanizing as positive and acceptable behavior. Pornography that glamorizes the brutalization of women, comedians who make jokes about rape and other forms of sexual assault, and a plethora of men’s magazines, books, TV shows that portray their archaic view of American masculinity and manhood. Keith posits that men’s level of violence towards women has reached epidemic levels, and the media coverage and advertising suggest that it is not only normal, but it’s cool for boys and men to control and humiliate women.

VICTIM BLAMING

Victim blaming is the phenomenon in which a victim of a crime is partially or entirely attributed as responsible for the transgressions committed against them. For instance, a victim of a crime (in this case rape or sexual assault), is asked questions by the police, in an emergency room, in a court room or even by the victims’ family members, that suggest that the victim was doing something, acting in a certain way, or wearing clothes that may be have provoked the perpetrator, thereby making the transgressions against the victim his or her own fault. Victim blaming may also occur among a victim’s peers, and college students have reported being ostracized if they report a rape against them, particularly if the alleged perpetrator is a popular figure or noted athlete. Also, while there is generally not much general discussions of rape facilitated in the home, schools, or government agencies, such conversations may perpetuate rape culture by focusing on techniques of “how not to be raped” (as if it were provoked), vs. “how not to rape.” This is problematic due to the stigma created and transgressed against the already victimized individuals rather than stigmatizing the aggressive actions of rape and the rapists. It is also commonly viewed that prisoners deserve to be raped and is a reasonable form of punishment for the crimes they committed.

An interesting case to note is that of 79 year old comedian Bill Cosby. Cosby has been the subject of publicized sexual assault allegations. With the earliest alleged incidents allegedly taking place in the mid-1960s, Cosby has been accused by more than 50 women for either rape, drug facilitated sexual assault, sexual battery, child sexual abuse and sexual misconduct. Cosby had repeatedly denied any wrongdoing and had not been charged with a crime prior to December 30, 2015. The question then becomes, where have all these victims been and why have they been silent for so many years only to resurface now? The only reasonable answer to that question is that they could not come forward to file a suit against Cosby because of the stigmatization and possible disbelief of the incidence. Bill Cosby is a popular figure around the world and could easily suppress their anger with monetary awards and they will be silent.

Rape culture exists because we don’t believe it does. From tacit acceptance of misogyny in everything from casual conversations with our peers to the media we consume, we accept the degradation of women and posit uncontrollable hyper-sexuality of men as the norm. Rape is endemic to our culture, even in Nigeria, because there’s no widely accepted cultural definition of what it actually is.

1: Name the real problem: Violent masculinity and victim-blaming. These are the cornerstone of rape culture and go hand in hand. When an instance of sexual assault makes the news and the first questions the media asks are about the victim’s sobriety, or clothes, or sexuality. We should all be pivot to ask, instead, what messages the perpetrators received over their lifetime about rape and about ‘being a man.’ The right question is not, “what was she doing/wearing/saying when she was raped?” The right question is, ‘What made him think this is acceptable?’ sexual violence is a pervasive problem that cannot be solved by analyzing an individual situation.

2: Re-examine and re-imagine masculinity: Once we name violent masculinity as a root cause of violence against women, we have to ask: is masculinity inherently violent? How can you be a man/masculine without being violent? Understand that rape is not a normal or natural masculine urge. Join organizations working to redefine masculinity and participate in the global conversations on the topic.

3: Get enthusiastic about enthusiastic consent: Rape culture relies on our collective inclination to blame the victim and find excuses for the rapist. Enthusiastic consent – the idea that we’re all responsible to make sure that our partners are actively into whatever’s going down between us sexually – takes a lot of those excuses away. If you adopt enthusiastic consent yourself, and then teach it to those around you, it can soon become a community value.

4: Get media literate: Media, like everything else we consume, is a product; someone imagined, created and implanted it. Feed your mind and heart with media that portrays women as full human beings with the right to bodily autonomy.

5: Globalize your awareness of rape culture: Yes, different societies have peculiarities when it comes to gender based violence, but it is counterproductive to make essential entire nations/cultures and races.

6: Know your history: In Nigeria, and I think, Africa generally, we must acknowledge and learn from our long history of state sanctioned violence. Consider the genocide, slave trade, civil war, apartheid, the lackadaisical relationship we have with due process and the gendered nature of all this. There are no quick links for this one: you will have to read some big books.

Most people aren’t rapists. But most rapists believe everyone does it. DON’T LAUGH AT RAPE. TELL YOUR STORY.

MOVING NIGERIA BEYOND OIL: ROADMAP FOR ECONOMIC DIVERSIFICATION FOR SUSTAINABLE DEVELOPMENT

You can’t feature in a future that you can’t picture. The future is not meant to be waited for; the future is what we design it to be today!  Malaysia and Nigeria gained independence virtually around the same time but while Malaysia has evolved over time to become a robust economy, Nigeria has consistently struggled with the load of corruption and consequences of a mono-cultural economy that depends solely on crude oil.

Nigeria emerged in the first decade of her independence as a leading exporter of many major agricultural commodities. Agriculture was the pride of the nation as we became leading exporters of palm kernel, and the largest producer and exporter of palm oil. We ‘dominated’ the world also as the second largest producer of cocoa in the world. Nigeria was the cynosure of all eyes as a big player and contender in the agricultural industry and even the evolution of Malaysia as one of the world’s largest producer of palm oil has its origin in Nigeria. Malaysia, a country Nigeria gave palm oil seedlings and expertise to, has overtaken Nigeria in the production of palm oil! Nigeria has lost its place among agricultural exporters; her might in agriculture has sunk into fading oblivion. It is poignant that the groundnut pyramids in the North has become a myth to the present generation; but the basic truth is that the situation is still redeemable if we go back to the drawing board to redesign and diversify the economy towards maximizing the potentials in agriculture and other sectors for sustainable development.

Have we ever paused to ponder why, for instance, Switzerland, which does not produce a single cocoa pod, is renowned for the best chocolates in the world? Or why Singapore that does not produce a single barrel of crude oil, exports about 1.5million barrels of refined petroleum products daily, making it an oil-rich nation? Or, have we asked how Israel although located in a desert is such an agricultural success and in spite of its size (population of about 8million) has the second highest number of start-ups in the world, next only to the United States? Have we checked how and why Malaysia became the largest producer of palm oil in the world at a period and why it was overtaken by Indonesia? And how between Malaysia and Indonesia they produce more than 80% of global production? Have we found out how Brazil became an agricultural super-power? Or, how China managed to overtake every country in Western Europe and Japan to become the second largest economy in the world in just a few years?

Some of our problems should even be embarrassing to us. For instance, more than 50% of all the yams consumed in Europe are Nigerian yams but not a single one is exported from Nigeria. Ghanaians and businessmen from other African countries, drive into Nigeria, buy our yams, take them to their countries and export the commodities, making millions of dollars for both themselves and their countries in the process. The Shea butter commodity business is huge in the international market and Nigeria is a huge producer, but we are not players. The Shea butter enterprise is a cartel business and the cartels in other African countries, come into Nigeria, pick our Shea butter on the cheap to their countries and make a killing exporting them all over the world. If this sounds like an insult to you, it is because it is one. After taking advantage of the low hanging fruits, we can then start looking into the longer term and plan properly. Brazil is a world agricultural power today because it learnt from past crises and decided to be big on agriculture. We must decide to be a world super-power in agriculture and work towards achieving it. It is that straightforward.

The easiest way that nations increase revenues generally is through taxation. And if any government wants more taxes, then it must create the environment for the flourishing of businesses and entrepreneurship. The more successful businesses there are the more taxes that can be generated by governments. State governments should now start competing among themselves on which of them are better destinations for businessmen. This happens all over the world. Apart from jobs that would be created, more taxes will also result.

The Nigerian Communications Commission (NCC) announced that Nigeria now has 97 million internet users. That’s almost double the entire population of our closest competitor, South Africa, Africa’s second largest economy after Nigeria. The logic of this is that ecommerce is another sector that can also lift Nigeria out of its current economic woes. This is another low hanging fruit if we know what to do. Ecommerce is already a growth sub-sector in Nigeria and if the different tiers of government show interest here and encourage entrepreneurs; it can go a very, very long way. We should ask the South Koreans. The very serious thing about ecommerce is that the entire world is your market. We can earn lots of foreign exchange here.

One area that past governments have not looked into is the soccer economy. Nigeria is known all over the world as a footballing nation. With creativity, we can lure investors from all over the world into this sector as it is currently done in the West, where billions of dollars is generated. The soccer economy all over the world is huge. We cannot just sit by and produce the raw materials for other nations to make billions. We too should be beneficiaries. Some time ago, Alhaji Aliko Dangote, Africa’s richest man, threatened to buy Arsenal. Many believed he has the muscle to do it. It is time we get the Dangotes of Nigeria and elsewhere to invest heavily to create a soccer economy and this will certainly prove beneficial to all concerned. The passion for the game in Nigeria is incredible.

President Muhammadu Buhari has severally reaffirmed his administration’s commitment to the diversification of the country’s economy. The downturn in the international price of crude oil is gradually validating the fact that any country that puts its survival on the oil sector is marked out for ‘economic suicide’. Every sustainable economy, institution or business is traceable to the level of its preparation. Poor planning and preparation are sure ways to the downfall of any economy. We must rearrange our priorities because to change your life, you need to change your priorities. We have to be resolute and firm in our shift towards diversifying the economy. We must open our minds to the listless potentials that abound around us. The drift of the Nigerian economy to total dependence on the oil sector has polluted our priorities and blinded us to several opportunities that can be afforded in the Nigerian economy. Our overdependence on the oil fortune has placed the destiny of the nation in the hands of infidels and corrupt-minded Nigerians. When Chief Obafemi Awolowo and Professor Aliu Babatunde Fafunwa (both of blessed memory) suggested the idea of Nigeria opting out of OPEC, in order to massively pump out crude oil and use the immediate proceeds to develop national infrastructures and then go back to diversifying the economy with major focus on agriculture, so many people thought they were men of wild and erratic imaginations. The present state of Nigeria has actually vindicated their school of thought because the proceeds from the Nigerian oil have actually been used in ‘lubricating’ classical corruption and impunity in the present Nigeria.

We need a major shift from our ‘destructive’ preference for imported goods at the detriment of our local contents. The alarming high rise in our demand for foreign goods can be serviced locally. I am encouraging fellow Nigerian youths to fully participate in the evolution of a new Nigeria. Nigeria is blessed with multi-talented youths and we must harness our potentials, ideas, innovations and man-power towards evolving the Nigeria of our dreams. Let us embrace the philosophy of diversification if we truly need and desire a sustainable development both for the present generation and the generation unborn. Let us put the might of technology into agriculture. We must evolve a modern way of practicing agriculture, so that it can be more mechanized, productive and attractive to the Nigerian youths. We must evolve a new way to resuscitate the agricultural sector. Let us explore tourism, I.C.T sector, the entertainment industry, fashion and cosmetic industry, textile industry, art and crafts, and our indigenous telecommunication industry in advancing our economy beyond average. They call us the giant of Africa; it is high time we put our name to the test.

PRE-EMPTIVE HUMAN RIGHTS ENFORCEMENT APPLICATIONS: A MERE SHENANIGAN TO FRUSTRATE THE CRIMINAL PROCESS?

INTRODUCTION

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law, including the 1999 Constitution of the Federal Republic of Nigeria. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.[i]

In recent past, particularly in high profile cases, there has been an upsurge in the number of prospective or ongoing criminal trials in which human rights applications have been made in a bid to forestall arrest, investigation or even truncate the entire process. Therefore, I would like to diagnose the rights of an accused person both to a real or perceived breach and an impending breach. In doing this I will answer the following questions (with necessary modifications duly inserted):

  1. Can it be said that an investigation, arrest and or prosecution generally violate the rights of an accused person?
  2. At what point can an application for the enforcement of human rights be said to be a proper response to an impending investigation, arrest and or prosecution?
  3. Is there a real connection between enforcement of human rights and criminal processes carried out in apparent regularity with legally prescribed procedures?
  4. Should accused persons be concerned, whether real or perceived, that their constitutional safeguards in criminal trials were not being protected by the trial judge, where would be the proper forum for seeking the protection of the rights being violated?

With this in mind, I will proceed to highlight the rights of an accused person as enshrined under the Constitution of the Federal Republic of Nigeria, 1999. Bearing in mind also the African Charter on Human and Peoples Rights and where need be the Fundamental Rights (Enforcement Procedure) Rules, 2009.

 

CONCEPT OF RIGHTS OF AN ACCUSED PERSON

Under Chapter IV of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, the rights of an accused person are fully guaranteed. The relevant sections are sections 35 and 36. The Former deals with the right to Personal Liberty and the latter, the right to fair hearing. The provisions of these sections are designed to adequately protect a person alleged to have committed any criminal offence in the administration of criminal justice, so that justice is not only done but seen to have been done and actually done.

 

  1. CAN IT BE SAID THAT AN INVESTIGATION, ARREST AND OR PROSECUTION GENERALLY VIOLATE THE RIGHTS OF AN ACCUSED PERSON?

 

In determining whether an investigation, arrest and prosecution violates the rights of an accused person, the CFRN deems any accused person innocent until tried by a competent court and found guilty.[ii] Anti-corruption or security agencies rather nibble away at their credibility by harassing, detaining and meting out other forms of indignity to citizens in a bid to show that they are working.

The Department of State Security (DSS) might not have taken into consideration these ramifications before it decided to investigate the immediate past National Security Adviser (NSA) Col. Sambo Dasuki (rtd) and Chief Security Officer (CSO) Gordon Obuah, both aides of erstwhile President Goodluck Jonathan. The result was the condemnable shoddiness of the DSS in the performance of its duties that has jarred public consciousness. The agency’s operatives laid siege to Dasuki’s home and prevented his family from having access to him. They took away vehicles, money and other valuables and even broke into his father’s home while the old man was away in London.

And for Obuah, his detention for days triggered anxiety over his health that was only allayed when he was allowed to appear before journalists. Nobody queries the right of the operatives of the DSS to summon any citizen for questioning, especially when allegations of the abuse of public office are made against him or her. However, it was obvious that the DSS operatives did not execute the investigations of the two officials in a manner that freed it of criticism.[iii] Generally, an investigation, arrest and subsequent prosecution would not violate the rights of an accused person. However, if an arrest is carried out before investigation, then the rights of an accused person would have been breached or violated.

In furtherance of this, I would like to bring to the core the statement by Mahmud Mohammed GCON (Chief Justice of Nigeria) when he received delegates of the Central Bank of Nigeria. His Lordship at that meeting charged security agencies to ensure that investigations into fraud and other criminal cases were properly carried out before charges are filed against suspects. The CJN, who also discouraged filing too many counts of charges against suspects, advised that security agencies’ approach to prosecuting offenders should be investigation-led arrest and not arrest-led investigation.[iv] Also, a Lagos-based Lawmaker, Honourable Olumuyiwa Jimoh, opined in an interview that investigation should come before arrest so that people would not just be accused unnecessarily. After the investigations, you can then make arrest. This is in order to save public funds from waste too as it must always be remembered that the money for prosecution is not coming from individuals, it is coming from the Federal Government.[v]

The rights of an accused person are enshrined in paragraphs a-e of section 36(6) of the Constitution.[vi] It stipulates the procedures to be followed by security agencies in investigating, arresting and or prosecuting accused persons. Hence, they are obliged to follow the laid down procedures of subsection (6). If they do not follow, with all sacrosanctity the provisions laid down, they cannot escape the charge of violating the rights of an accused person, thereby making human rights application inevitable.

In conclusion also draws strength from section 3 of the Administration of the Criminal Justice Act, 2015, under which a suspect charged with committing an offence shall be arrested, investigated, tried or dealt with according to the provisions of the Act except otherwise provided under the Act, goes to show that an investigation, arrest and or prosecution generally does not violate the rights of an accused.

 

  1. AT WHAT POINT CAN AN APPLICATION FOR THE ENFORCEMENT OF HUMAN RIGHTS BE SAID TO BE A PROPER RESPONSE TO AN IMPENDING INVESTIGATION, ARREST AND OR PROSECUTION?

 

By virtue of the provisions of the Fundamental Rights (Enforcement Procedure) Rules any person who alleges that any of the Fundamental Rights provided for in the Constitution[vii] and/or the African Charter on Human and Peoples’ Rights[viii] and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court for redress.[ix] In other words, an applicant can bring an application for the enforcement of his human rights anytime and at any stage of a criminal process if he believes that the procedure(s) employed has contravened, is contravening or is likely to contravene his/her rights under the above laws.[x] In Nigeria, a lot of cases have come before the courts with petitions requesting injunctions preventing arrest, investigations or prosecutions. Most of the time, these injunctions are sought by high profile personalities in the society who claim that their rights would be contravened if the process is left to go further. However, it appears the applications for preventive injunctions are mere attempts at evading prosecution.

The first case that comes to mind is that of former Rivers State Governor, Peter Odili, who obtained a controversial court injunction that made him perpetually immune from arrest and prosecution by the Economic and Financial Crimes Commission. The former governor alleged that the allegations in the EFCC report were false and contrived maliciously against him and his administration in order to force him out of the People’s Democratic Party presidential primaries.[xi] Similarly, the former governor of Lagos State obtained a court injunction stopping his arrest or harassment by the Nigerian army sometime last year pending the determination of the motion on notice.[xii] Although his arrest was impending, he already believed that his right would  be contravened.

Though these cases show, at first impression, attempts at avoiding criminal prosecution, however, in a country where political vendetta is rife, it might be difficult to ignore an application for a fundamental rights protection against an arrest that might turn out to be a decoy for political harassment through the coercive agencies of the State. The difficulty lies in determining arrests or investigations that are persecutory. The safety mechanism should be that, in an application for a preventive injunction, the relevant agency should show course for the intended arrest; and where the court is satisfied that there is a reasonable grounds for the suspicion of the commission of a crime, the application should be rejected, but with a further order compelling the agency to prosecute within the constitutionally stipulated time, a failure of which should lead to the release of the arrested person.

 

  1. IS THERE A REAL CONNECTION BETWEEN ENFORCEMENT OF HUMAN RIGHTS AND CRIMINAL PROCESS CARRIED OUT IN APPARENT REGULARITY WITH LEGALLY PRESCRIBED PROCEDURES?

 

If the legally prescribed procedures for criminal prosecution were duly followed, there would be no breach of human rights and the need for the enforcement of human rights would presumable not arise. This is because the procedures prescribed do not contradict or infringe on an individual’s human rights. The procedures themselves have the backing of human right instruments such as the CFRN[xiii] and the African Charter on Human and Peoples Rights.[xiv] For instance, the CFRN provides that a person shall be entitled to fair hearing within a reasonable time by a court or tribunal established by law[xv] and of course, the enforcement of human rights is taken seriously by the courts.[xvi]

However, procedural regularity could themselves be unsatisfactory under certain circumstances. For example, an arrest could be ill-timed (may be, around holidays); logistics and facilities for speedy trial might be inadequate and non-functional thereby delaying trial, the judge might be biased against the accused or overworked going by her docket, politically sponsored news reportage might be prejudicial, detention facilities may be dehumanizing, etc. Basically, these indicate low level of social development that might have far-reaching negative psychological effects on an accused, who is constitutionally innocent until proven guilty

 

  1. SHOULD ACCUSED PERSONS BE CONCERNED, WHETHER REAL OR PERCEIVED, THAT THEIR CONSTITUTIONAL SAFEGUARDS IN CRIMINAL TRIALS WERE NOT BEING PROTECTED BY THE TRIAL JUDGE, WHERE WOULD BE THE PROPER FORUM FOR SEEKING THE PROTECTION OF THE RIGHTS BEING VIOLATED? SHOULD IT BE BEFORE THE TRIAL COURT OR ANOTHER COURT OF COORDINATE JURISDICTION? OR A MATTER TO BE RAISED ON APPEAL?

 

The constitutional provisions safeguarding the rights of an accused person in a criminal trial should be duly protected. The rights of accused persons – be it  those that protect them during the pre-trial processes or those that run concurrently with the trial –  should be of utmost concern to the trial judge. One cannot but appreciate the observation of AYOOLA JSC, in Oforlette v. State when he said that:

The truth of the matter is that the whole case was improperly investigated and poorly prosecuted…

This goes to show that the court is not quiet in identifying whether the procedures for commencing a particular trial was duly followed. This does not relinquish the duty off the accused to be attentive to note if the trial judge shall take into consideration the illegality in the trial procedures.

The second ambit of the question requires a brief discussion of Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, which provides:

Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:

Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction.

This Rule grants the power to entertain matters relating to the enforcement of fundamental rights to the Court in the state where the infringement occurred or is likely to occur. Thus, the proper forum for seeking redress or the protection of rights being violated is in the court. I believe this is in tandem with the fact that it is only in the court of law that the voice of the lay man can be heard and justice bequeathed to him.

In answering the question as to which court has jurisdiction to entertain the application for the enforcement of fundamental rights, it is fitting to recall the decision of the Court of Appeal, Calabar Division in Felix A. Uwa v. Sunday Etim Akpan & Anor[xvii] that both the State High Court and the Federal High Court have concurrent jurisdiction in handling issues of fundamental rights. Thus, the alleged breach of fundamental rights in a criminal matter should be raised before the trial court itself and where the court ignores the application or refuses to grant the necessary relief, the applicant should appeal even before the final decision on the criminal charge is made.

CONCLUSION

Haven taken a cursory view of the entire human rights law and its relation to the criminal justice system, it would be preposterous to say that there are no deficiencies in the enforcement of human right in Nigeria. The rules regulating the rights of an accused are duly and well protected in the various laws,[xviii] however, in practicality they are not adhered to strictly. We have seen, heard and read of instances where security agencies melt out brutality on suspects under the guise of exercising their duty of investigation or arrest. The statutory power of arrest does not give the police the power to be brutal, ruthless and disobedient  to the law in the course of investigation of a crime.[xix] In the case of Ahamba v. State[xx] the appellant was charged, tried and convicted for the offence of murder at the Abakaliki High Court. The Court of Appeal commenting on the method adopted by the police in the investigation of the case said:

It should be observed that the investigation of this case was a clear departure from the established methods generally known and practiced in this country and other countries in which accusatorial as opposed to inquisitorial process is consistently followed in criminal trials

The above aptly captures the attitude of the police to criminal justice in Nigeria. Poor and shoddy investigation of cases constitutes one of the greatest challenges militating against effective administration of criminal justice in Nigeria. Also Section 5 of the Administration of Criminal Justice Act[xxi] says that a suspect or defendant may not be handcuffed, bound or retrained except an order of Court stipulates so or there is a necessary apprehension of violence or escape by the suspect or the restraint is necessary for the safety of the suspect. However, what we have in practice is not so. Security agencies upon arrest of suspects, handcuff, beat and possibly drag and tussle the suspect without recourse to the safeguards of the rights of accused persons

The fact that the police[xxii] can arrest a person on mere suspicion is worrisome and leaves one to think on the numerous ways the security agencies could abuse this discretion in effectuating arrest. Thus, I would suggest this provision to be duly checked so as not to cause the person who might not be the one who committed an offence but who was wrongly suspected by the security agencies to be a victim of the brutal nature of the Nigerian security agencies.

 

 

 

[i] http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[ii] Subsection 5 of Section 36 of the Constitution of the Federal Republic of Nigeria

[iii] http://www.ngrguardiannews.com/2015/07/of-probes-and-arrests/

[iv] Sylvester Ugwuanyi: http://dailypost.ng/2015/11/02/cjn-urges-security-agents-to-investigate-properly-before-arrests/

[v] http://newsinvestigatorsng.com/investigation-should-come-before-arrest-for-corruption-charges-lagos-lawmaker/

[vi] 1999 Constitution of the Federal Republic of Nigeria

[vii] Sections 33 – 46, 1999 Constitution of the Federal Republic of Nigeria

[viii] Applicable in Nigeria as African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act)

[ix] Order 2 Rule 1 Fundamental Rights (Enforcement Procedure) Rules, 2009

[x] Section 46 (1), 1999 Constitution of the Federal Republic of Nigeria

[xi] Conscience and History: My Story

[xii] Micheal Abimboye: http://www.premiumtimesng.com/news/top-news/179265-court-restrains-nigerian-army-from-arresting-tinubu.html

[xiii] Section 36, 1999 Constitution of the Federal republic of Nigeria

[xiv] Article 7

[xv] Section 36 (1), 1999 Constitution of the Federal Republic of Nigeria

[xvi] Order 2 Rule 1 Fundamental Rights (Enforcement Procedure) Rules, 2009

[xvii] 2010 Court of Appeal

[xviii] 1999 Constitution of the Federal Republic of Nigeria, African Charter on Human and Peoples Rights, Fundamental Rights (Enforcement Procedure) Rules 2009

[xix] ibid

[xx] (1992) 5 NWLR (Pt. 242) 450

[xxi] 2015

[xxii] Used to collectively refer to security agencies