i AFRICAN LAW JOURNAL Second Edition, Vol. 2 africanlawjournal@gmail.com Editorial Team Ofodum, Chukwunonso Charles (ICON), Editor in Chief Prof. Agwunobi, J. C. Dr. Umahi, T. O. Dr.Nwagbara, O. A (Assoc. Prof.) ii AFRICAN LAW JOURNAL Second Edition, Vol. 2 africanlawjournal@gmail.com chukwunonsocharles@gmail.com chukwunonsocharles@yahoo.com africanlawstudents@gmail.com +2348035469357 EDITORS AND QUALIFICATIONS Dr. Umahi, O. T. (B. Sc., M.Sc., LL.B, LL.M,Ph.D.). Prof. AGWUNOBI J. C.( B. Sc., M. Sc. Ph.D.) Dr.Nwagbara, O. A, Associate Prof., (B.Sc., M.Sc., Dip, B. Eng., M.Engr., Civil Engineering, M.Sc. Environmental, Ph.D., LLB.LAW). Ofodum, ChukwunonsoCharles,ICON (LLB.LAW) Main Editors Prof. Agwunobi, J. C. Dr. Umahi, T. O. Dr.Nwagbara, O. A Ofodum, Chukwunonso Charles (ICON) Assistant Editors Omirin, EmmanuelKayode Iroegbu, Ezinna Edge iii FOREWORD This second edition of African Law Journal took the line of first edition which sought to bring to focus / lime light the burning issues in Africa to attention of diverse stakeholders and participants alike. This Journal will appeal to wide spectrum of readers since the issues raised in the Journal touches on the day to day activities in social and economic issues and challenges in Africa. I will not hesitate to recommend this Journal (African Law Journal) to wide range of readership. This stems from the fact on the usefulness of the contents, the quality of academic and professional contributors and the well-organized arrangement of the contents. As a result this journal will be valuable to military organizations, business men, social and human right crusaders, academicians and other professionals and general public. The Journal identified areas, issues and cases from which the public will learn especially the African and developing countries and their people who are exposed to human rights abuses, poor quality service delivery and general abuse and qualification. The Journal contents were well couched on the typical issues like, Assessment of legal banking and customer’s relationship in Nigeria,the disaster of federal iv character, constitution building in Zambia, thou art buried oh discrimination, but you still rule us from your grave, the constitutional independence of the judiciary reconsidering legislative immunity under the Nigeria law, assessment of bail in Nigeria , examination of negligence in criminal law, the importance and need to sustain the sacrosanct nature of judiciary in Nigeria, judicial independence, bedrock for sustainable democracy in Africa, the Oscar pistorius trial of the century, Africa must change , aluta continua, Victoria acerta, compendium appendices and justice among others. This Journal –African Law Journal (Second edition) is strongly recommended to all and secondary and it is equally worth keeping in the public and private libraries. I command the editors and contributors for their painstaking and thought provoking worth. Arc. Engr. Dr. Augustine O. Nwagbara. (B. Sc., M. Sc., Dip, B. Eng., M. Engr., Civil Engineering, M. Sc. Environmental, PhD, LLB.LAW). Director, ESUT Consultancy Unit, Enugu State University of Science and Technology, Enugu. v WHO IS THIS JOURNAL FOR? FROM THE DESK OF THE FOUNDER African Law Journal Dear consumers (readers), you are all welcome to African law journal. The aim of the journal is to provide information, legal issues and to acquaint the readers on law and asocietal problem which will proffer recommendations on the readers too. The journal is for the ministers in the temple of justice, academia, legal academia, lawyers in practice, legislators, lawyers in equity, and everyone in the society. The journal x-rayed prudently and courteously the challenges we faced in this continent (Africa) and in the world in general. The article has compendium appendices which evaluated some African problems and elucidated some issues with the solution. It is our belief that readers must learn one or two things while perusing through this journal. We want to use this medium to thank all the contributors of these articles and congratulate African law student’s administrators and members too as we look forward to a better future. OFODUM, CHUKWUNONSO CHARLES (ICON) FOUNDER, AFRICAN LAW JOURNAL vi ABOUT THE JOURNAL African Law Journal is an international Journal. It has Facebook Page, African Law Journal, e-mail, africanlawjournal@gmail.com, WhatsApp group, and you can still get the journal at www.academia .edu and on Google(www.google.com) by using African Law Journal by Ofodum, Chukwunonso. African Law Journal is in National Library Nigeria, and most of the Libraries in the world like College of Law Libraries, University of South Africa, Pretoria, South Africa, Law library(Coscharis) UNEC, Enugu, Nigeria, Faculty of Law, University of Ibadan, Nigeria and etc. African Law Journal is a recognized Journal that is registered with Cooperate Affair Commission (C.A.C), in Nigeria. African Law Journal is in Nigeria, Israel, Pakistan, South Africa, Malawi, Kenya, Zambia, Cameroon and Namibia, Ghana, Bangladesh, Uganda, China, Swaziland, Mexico Benin Republic, U.S.A, Thailand Singapore, Senegal, Benin Republic, Nigel, EquatoriaGuinea, London, Zimbabwe, Tunisia, Burkina Faso, Chad, Liberia etc. This is an international Journal of law, we have First edition in 2015, it was edited by Dr. O. T. Umahi and OfodumChukwunonso Charles, while this is thesecond edition of African Law Journal which people from different countries of the world contributed profusely also. vii The First edition of the journal, we have eight different countries contributed, they are Nigerian, South Africa, Malawi, Zambia, Kenya, Namibia, Uganda, and Singapore. The writers of the first publications are OfodumChukwunonso Charles (Nigeria), Thomas Solomon (Namibia), D.r K.C.E and Obioha J.O (Nigeria), BongiFranceMojapo (South Africa), Ombo D. Mulunibe (Kenya), Prof J.C. Agwunobi (Nigeria), SambasivamKunju (Singapore), EzeakunneOkwuchukwu( Nigeria), Stuart Emmanuel Kondowe (Malawi), Mbagwu, Prime Ikechukwu Mark (Nigeria). Waliaula NELSON, Administrator, African Law Journal Faculty of Law, Islamic University Uganda. viii DEDICATION First of all, I dedicate to the supremacy of God Almighty the giver of life, all power belongs to him. Secondary, this Journal is dedicated to all the lawyers and law students of the world. Lastly, God bless African Leader, and this journal is dedicated to all the African leaders: AbdelazizBouteflika, President of Algeria,Prime Minister – AbdelmalekSellal, Prime Minister of Algeria , José Eduardo dos Santos, President of Angola, Thomas BoniYayi, President of Benin ,Lionel Zinsou, Prime Minister of Benin, Ian Khama, President of Botswana ,Roch Marc Christian Kaboré, President of Burkina Faso,Yacouba Isaac Zida, Acting Prime Minister of Burkina Faso, Pierre Nkurunziza, President of Burundi, Paul Biya, President of Cameroon, Philémon Yang, Prime Minister of Cameroon, Jorge Carlos Fonseca, President of Cape Verde, José Maria Neves, Prime Minister of Cape Verde, Catherine Samba-Panza, Head of State of the Transition of the Central African Republic, MahamatKamoun, Prime Minister of the Central African Republic, IdrissDéby, President of Chad, KalzeubetPahimiDeubet, Prime Minister of Chad, IkililouDhoinine, President of the Comoros, Denis SassouNguesso, President of the Republic of the Congo, Congo–Kinshasa (Democratic Republic of the Congo), Joseph Kabila, President of the Democratic Republic of the Congo, AugustinMatataPonyo, Prime Minister of the Democratic Republic of the Congo, Ismaïl Omar Guelleh, President of Djibouti, AbdoulkaderKamil Mohamed, Prime Minister of Djibouti, Abdel Fattah el-Sisi, President of Egypt, Sherif Ismail, Prime Minister of Egypt, TeodoroObiangNguemaMbasogo, President of Equatorial Guinea,VicenteEhateTomi, Prime Minister of Equatorial Guinea, IsaiasAfwerki, President of Eritrea, MulatuTeshome, President of Ethiopia, HailemariamDesalegn, Prime Minister of Ethiopia, Ali Bongo Ondimba, President of Gabon, Daniel OnaOndo, Prime Minister of Gabon, YahyaJammeh, President of the Gambia, John DramaniMahama, President of Ghana, Alpha Condé, President of Guinea,MamadyYoula, Prime Minister of Guinea, José MárioVaz, President of Guinea-Bissau, Carlos Correia, Prime Minister of Guinea-Bissau, AlassaneOuattara, President of the Ivory Coast, Daniel Kablan Duncan, Prime Minister of the Ivory Coast,Uhuru ix Kenyatta, President of Kenya,Letsie III, King of Lesotho, PakalithaMosisili, Prime Minister of Lesotho , Ellen Johnson-Sirleaf, President of Liberia, Libya, NouriAbusahmain, Chairman of the General National Congress of Libya,AguilaSalehIssa, President of the House of Representatives of Libya, Abdullah al-Thani, Acting Prime Minister of Libya, Khalifa al-Ghawi, Prime Minister of Libya,HeryRajaonarimampianina, President of Madagascar, Jean Ravelonarivo, Prime Minister of Madagascar,Peter Mutharika, President of Malawi, Ibrahim BoubacarKeïta, President of Mali, Modibo Keita, Prime Minister of Mali, Mohamed Ould Abdel Aziz, President of Mauritania, YahyaOuldHademine, Prime Minister of Mauritania, AmeenahGurib, President of Mauritius, Mohammed VI, King of Morocco, AbdelilahBenkirane, Head of Government of Morocco, Mohamed Abdelaziz, President of Western Sahara, AbdelkaderTaleb Omar, Prime Minister of Western Sahara , Armando Guebuza, President of Mozambique, Filipe Nyusi, President of Mozambique, Alberto Vaquina, Prime Minister of Mozambique, Carlos Agostinho do Rosário, Prime Minister of Mozambique, HageGeingob, President of Namibia, SaaraKuugongelwa, Prime Minister of Namibia, MahamadouIssoufou, President of Niger, BrigiRafini, Prime Minister of Niger,Nigeria Former President – Goodluck Jonathan, President of Nigeria (2010–2015), MuhammaduBuhari, President of Nigeria (2015–present), Paul Kagame, President of Rwanda, AnastaseMurekezi, Prime Minister of Rwanda, Saint Helena, Ascension and Tristan da Cunha (Overseas Territory of the United Kingdom) , Mark Andrew Capes, Governor of Saint Helena, Manuel Pinto da Costa, President of São Tomé and Príncipe, Patrice Trovoada, Prime Minister of São Tomé and Príncipe, MackySall, President of Senegal, Mohammed Dionne, Prime Minister of Senegal, James Michel, President of Seychelles , Ernest BaiKoroma, President of Sierra Leone, Hassan Sheikh Mohamud, President of Somalia, Omar Abdirashid Ali Sharmarke, Prime Minister of Somalia, Ahmed Mohamed Mohamoud, President of Somaliland, Abdiweli Mohamed Ali, President of Puntland, Jacob Zuma, President of South Africa, SalvaKiirMayardit, President of South Sudan, Omar al-Bashir, President of Sudan, Mswati III, King of Swaziland, Barnabas SibusisoDlamini, Prime Minister of Swaziland, John Magufuli, President of Tanzania, KassimMajaliwa, Prime Minister of Tanzania, Faure Gnassingbé, President of Togo, KomiSélomKlassou, Prime Minister of Togo, BejiCaidEssebsi, President of Tunisia, HabibEssid, Head of Government of Tunisia, YoweriMuseveni, President of Uganda, RuhakanaRugunda, Prime x Minister of Uganda, Edgar Lungu, President of Zambia, Robert Mugabe, President of Zimbabwe. God bless Africa! God bless Africa! Guide our leaders Guard her children And bring us peace. EZENWA, UZOMA ANGELOU E. Administrator, African Law Journal College of Law, University of South Africa xi ACKNOWLEDGMENTS We would love to thank God and congratulate all the contributors of this journal for the successful publication. We acknowledge all the contributors like my fellow colleagues at African Law Journal and African Law Students, UgochukwuOnu (admin., Nigeria),Ofodum, Chukwunonso Charles(Founder,Nigeria) Stuart Emmanuel Kondowe (writer,Zambia), Samuel OgundimuOlajide (admin.,Nigeria), ManziNkoyosi S. (admin.,South Africa), Jozi (admin., South Africa) and Austin (admin.,Nigeria) Chima Okwaraji, Ufele Chinonso Victor (Dlaw), Miracle Meomonty (admin.,Nigeria) and Magez Andrew (admin.,Uganda).We thank our editors Dr. T. O. Umahi, Dr. Nwagbara A. O., Omirin Emmanuel Kayode (Emaculate Ife).Finally, we thank Prof. J. C. Agwunobi(writer,Nigeria), Thomas Solomon, Namibia (writer) and our facilitators: Senator Ike EkweremaduHis Excellency, Amb. GoddyAgbo, OkoyeChinedu(Mrs.), Amara Chimezie, Hon. Amb. Henry Ugwuodo, Dr.Uzoigwe Comfort, Hon. Sir J. UbakaOgbodo, Hon. Agbo Victor (Former Chairman, Enugu South L.GA, Enugu State, Nigeria) Hon. AnihAmaechiDonatus(Ononenyi 1), Hon. Jonny Obidimma, Dr. Eze, Prince Patrick Igwe, Dr. Arch. Engr. A. O. Nwagbara, Institute of Business Valuation of Nigeria and EzinnaIroegbu Edge etc., you are all well appreciated. MANZI NKAYISO, Administrator, African Law Journal College of Law, University of South Africa xii HISTORY OF AFRICAN LAW JOURNAL Nothing comes out from nothing; everything that exists must surely have an origin. If everything that exists must have an origin then African Law Journal must have an origin. This history espouses the origin of African Law Journal and its relevance till date. This Law Journal is the sole property of African Law Students which started on Facebook in 2013 with the vision of providing African legal luminaries – lawyers and law students – latest and comprehensive legal education, and the happenings in the legal world. The noble course of this body is to transform into an international body on and outside the confine of Facebook by pursuing modern innovations which will equip law students with both online and offline materials on substantive and procedural law. With this, future African lawyers would stand the chance of competing favourably with their peers from other parts of the world. Innovations employed by the body to help the students perform better and utilise this opportunity include: 1. Discussion of legal ideaswhich would help in widening their horizons. 2. Bridging the inequality in thelegalimpartation of students of different law faculties (colleges). 3. Socialisation of students from different schools. 4. Promotion of legal aids in our various countries. 5. Promotion of African stability and unity. 6. Bringing justice to Africa and the world as a whole. 7. Bringing quality education to African lawyers, law students and the world in general. xiii It is imperative to note that the body is moving closer to achieving her goal as her first edition of the African Law Journal has gone far. The first edition can be found in libraries in Nigeria, Israel, Pakistan, Cameroon, South Africa, Uganda, Ghana, Kenya, Zambia, Malawi, and Namibia. Recently, the journal entered India and Benin Republic. It can also be found on www.academia.com and on Google(www.google.com) by using African Law Journal by Ofodum, Chukwunonso Charles. With this transformation, the tools of justice will be learned and understood around the globe. Directives The body has three official languages and these include English, French and Legal Latin language. The body operates a parliamentary system of administration. It is made up of two chambers – the main group and the administrators’ group. The operational guidelines shall flow from the Justice. Decision making of the body shall be democratic in which the majority’s voice shall be given the utmost priority. The majority, as used in the previous sentence, means the highest number of participants in the decision making. Any member can sponsor a bill or move a motion for the progress of the body. Rules and Regulations No one shall be punished for an action in the absence of a law that prohibits such action. With the full understanding of this, the body decided to enact laws that would guide its business. These laws include: 1. All members must be legally minded. 2. Every material posted must be legally related except for few cases of jokes and social life. xiv 3. Spamming, junk mail, and/or fraudulent posts luring members to scam is strictly prohibited. 4. No Ethnicism and/or Racism. 5. No insults or abusive words or personal attacks on fellow members. 6. No attacks on religious and political figures. 7. No flaunting of standing orders 8. No insensitive comment. 9. No porno videos, nude photos, and any other pornographic material. 10. Abbreviation is highly prohibited 11. Except with thedue permission of the administration panel, any form of advertisement is highly prohibited. Sanction Any member who violates the aforementioned rules shall be warned. If he/she fails to comply with the rules and regulations after being warned, he/she shall be removed from the group with immediate effect. Slogan The slogan of African Law student shall be: “Great African Law Students” and which would be followed by a response of “Justice Shall Prevail”. Our motto shall be: “Aequitas sequitur legem(Equity follows thelaw)”. African Law Student now prides herself in having a Whatsapp group and a Facebook group with more than 13, 000 members. Our administrators on these platforms include: Defokwu Stanley Ebube,former (Nigeria); OfodumChukwunonso Charles (ICON), Founder (Nigeria); EzenwaUzor Angelou E., a diaspora in South Africa; UgochukwuOnu (Nigeria); ManziNkanyiso (South Africa); O’men Abdul Ghaffar (Israel); IzuchukwuAsogwa (Nigeria); Ahmed xv Musa (Nigeria); MageziAndrew Kasaijja (Uganda); Ogundimu Samuel (Nigeria); Orisewezie Desmond (Nigeria); OkoliChinedu Hillary (Nigeria); Jackson Roman Meridew (Nigeria) Eze Collins (Nigeria); Muhammad Elmuheeb (Nigeria), AnawureyiOhine Joy (Nigeria);Omirin Emmanuel Kayode (Nigeria);Walyawula Nelson (Zambia);Rilwan S. Salihu (Nigeria); Mbua Peter Junior (Cameroon) and Remi Austin (Nigeria). This edition is not limited to Africa alone as it has so many articles written about happenings in other continents. This edition also accommodates pieces like poems and jokes that are legally related. It is one thing to know the law and another thing to know how to apply the law. Knowing how to apply the law is useless when you do not know the law and knowing the law is meaningless when you do not know how to apply it. With African Law Students Journal, you will learn both. Thank you. Omirin Emmanuel Kayode(Emaculate Ife) Administrator, African Law Journal Faculty of Law,ObafemiAwolowoUniversity,Nigeria. xvi TABLE OF CONTENTS AFRICAN LAW JOURNAL .................................................................................. i FOREWORD ........................................................................................................ iv WHO IS THIS JOURNAL FOR? ......................................................................... vi ABOUT THE JOURNAL .................................................................................... vii DEDICATION...................................................................................................... ix ACKNOWLEDGMENTS ................................................................................... xii HISTORY OF AFRICAN LAW JOURNAL ...................................................... xiii TABLE OF CONTENTS ................................................................................... xvii ASSESSMENT OF LEGAL BANKING AND CUSTOMER’S RELATIONSHIP IN NIGERIA ......................................................................................................... 1 THE DISASTER OF FEDERAL CHARACTER .................................................. 9 CONSTITUTION BUILDING IN ZAMBIA ........................................................13 THOU ART BURIED OH DISCRIMINATION, BUT YOU STILL RULE US FROM YOUR GRAVE ........................................................................................18 THE CONSTITUTIONAL INDEPENDENCE OF THE JUDICIARY .................34 RECONSIDERING LEGISLATIVE IMMUNITY UNDER THE NIGERIA LAW ..............................................................................................................................41 ASSESSMENT OF BAIL IN NIGERIA ...............................................................46 EXAMINATION OF NEGLIGENCE IN CRIMINAL LAW ...............................56 THE IMPORTANCE AND NEED TO SUSTAIN THE SACROSANCT NATURE OF JUDICIARY IN NIGERIA ............................................................63 JUDICIAL INDEPENDENCE: BEDROCK FOR SUSTAINABLE DEMOCRACY IN AFRICA ................................................................................72 AFRICA MUST CHANGE ..................................................................................86 AFRICA MUST CHANGE ..................................................................................87 xvii THE OSCAR PISTORIUS TRIAL OF THE CENTURY .....................................89 RAPE: ITS LEGAL AND MEDICAL IMPLICATIONS............91 ALUTA CONTINUA, VICTORIA ACERTA! .....................................................98 AFRICA MUST CHANGE ................................................................................103 COMPENDIUM APPENDICES ........................................................................103 Africa Must Change Quotations .......................................................................103 Extracted from Africa Must Change ................................................................103 I Shall Disclose Achievement in the World Today...........................................107 Words of Life From Professor J. C. Agwunobi Ksc .........................................107 From Ezenwa, Uzoma Angelou E. ...................................................................108 How Does International Law Protect Human Rights? ......................................109 A Look at the Background of Human Rights ...................................................109 xviii ASSESSMENT OF LEGAL BANKING AND CUSTOMER’S RELATIONSHIP IN NIGERIA Ofodum, Chukwunonso Charles (ICON) African Law Journal Abstract This article discussed the legal banking and customer’s relationship in Nigeria by introducing it, examining my experience in banking in Nigeria, the principle of ubi jus ibiremedium, the laws regulating banking in Nigeria, rights of customers in Nigeria, rights of banks in Nigeria, duties of customers in Nigeria, duties of banks in Nigeria, decided cases, we equally proffer necessary recommendations and concluded it with pivotal conclusion. Introduction In this paper, we shall examine the rights of customers, rights of banking and the customers and bankers relationship. I must not desist to assert that Nigerian banks intimidate their customers. I have seen and witnessed a lot of them. My aim of writing this paper is to put a stop to their menace because it’s illegal, inhuman and unconstitutional. I hate violation of right by anyone not just banks but any organization that does that. Court held in the case of Trade Bank Plc v. Barilux (Nig) Ltd (2000)1, that the customers relationship with the bank is as principal and agent, which stated that bank is an agent while the customers are the principals, unlike what bank inserted that is like baillor and baillee which is fallacy and wrong, let there be “ubi jus ibiremedium” which connotes that where there is right there is remedy, in the next subheading we shall examine “ubi jus ibiremedium”. 1 Trade Bank Plc v. Barilux (Nig) Ltd (2000) 13 NWLR. 1 I don’t see the reason why banks will be intimidating their customers, without customers, there will be no bank or people to attend to by banks. It baffles me when I see such, many things need to be addressed in Nigeria and the whole African continent. I don’t see the reason why banks will be implementing an obnoxious law that does not favor the society and that is unconstitutional that is outside BOFIA, BEA , CAMA and CBN act, which regulate banks in Nigeria as far as I am concern the banks in Nigeria needs to be monitored especially their selfish rules and monetary aspect of banks. Banks in Nigeria have dealt with me personally before I read banking and insurance law which acquainted me and put a stop to their intimidation. Sometimes, they will tell you “this is our field, we will teach you not you teaching us”. I will now tell them “tell that to a market woman not me”. I believe fully well that with perusing on my article will put an end to this menace, inhuman, unconstitutional act by the banks. Sometimes they do intimidate their customers with banks security. Definition of Terms BOFIA :Banks and other Financial Institutions Act 2 CBN : Central Bank of Nigeria3 BEA: Bill of Exchange Act4 Banker includes a body of persons whether incorporated or not who carry on the business of banking.5 5. A commercial bank: connotes bank in Nigeria whose business includes the acceptance of deposits, withdrawals by cheques” and merchant bank to mean “a bank whose business includes receiving deposits on deposit account, provisions of finance consultancy and advisory services relating to corporate and investment matters, making or managing investments on behalf of any person6 6. Banking business as The business of receiving deposits on current account, savings account or other similar account, paying or collecting cheques, 1. 2. 3. 4. 2 Law Of Banking And Insurance I, NOUN, Dr. Samuel Apenega Ibid 4 Ibid 5 Section 2 of the Bill of Exchange Act 2004 in Law Of Banking And Insurance I, NOUN, Dr. Samuel Apenega 6 Section 66 of BOFIA 2004,in Law Of Banking And Insurance I, NOUN, Dr. Samuel Apenega 3 2 drawn by or paid in by customers; provisions of finance or such other business as the Governor may, by order published in the Federal Gazette, designate as banking business7 7. Bank Customer: to become a bank’s customer is having an account irrespective of what form of account (whether saving, deposit or current) provided the account is in his name.8 8. CAMA: Companies and Allied Matters Act. 9 9. Legal: relating to law; permitted by law10 10. Ubi Jus IbiRemedium: connotes where there is right, there must be a remedy.11 My Bank Experience My experience in banks with security, I lost my phone as I was filling my withdrawal slip and I never knew that it was collected by one security man, I pleaded with a lady to use her mobile phone to call my line, she agreed, as I was calling my line, a security man approached me and told me not to make call, I told him that I just lost my phone, meanwhile, not knowing that the phone was with him, he insisted that I shouldn’t make the call and I insisted that the call must be made by me and made the call and the phone rang on his pocket I now approached him and told him to give me my phone but he said, “they have protocols for returning of phones” and I insisted that my phone must be given to me immediately as we were dragging it , another person came out from one of offices and explained to me the same thing that there is protocols in giving me back my phone and I told the man that came out that room that my anger was not the protocols but it was the manner and the way he approached me. Since he knew fully well that he was with my phone he should have returned it or allow me to make that call. I now told the man that came out of the office that “making calls is highly prohibited” while the exception should be that if there’s any emergency that calls should be allowed to be made like –robbery, stealing, phone missing and etc. 7 Ibid UBN Plc v. ITPP Ltd (2000) 12 NWLR pt 680; Ademuluyi& 1 Anor v. ACB Ltd. (1969) 3 ALR Comm 10; NNB Ltd v. Odiase (1993) 8 NWLR Pt 310, in Law Of Banking And Insurance I, NOUN, Dr. Samuel Apenega 9 Ibid 10 Oxford Advanced Learners’ Dictionary, 8 Edition, in African Law Journal, First edition, vol. 1 11 Htts://en.m.wikipedia.org/…/maxims 8 3 I went ahead and told the man to educate their security men before recruitment, though I don’t want to mention the name of the bank or the branch, thanks. Ubi Jus IbiRemedium12 See Ashby v white and Bivens and West Constitutional Company Ltd v Suntos M13. Ubi jus remedium connotes where there is right, there must be a remedy. Perhaps, if a plaintiff has a right, he must of important have way to vindicate/justify it, and remedy it too. Besides, it is a vain thing to imagine a right without a remedy, think about it, for what of right and want of remedy are reciprocal. This principal is so pivotal to the administration of justice and where there is right, there is also a remedy provided either by common law or statute, the courts in Nigeria have been urged to create one. See Bello v A.G, Oyo State14FBN PLC. v. Associated Motors co.ltd15per. Augie, JCA Omoyinmi v Ogunsiji16 – court of appeal What court consider in providing a remedy to thenovelty of an action. The courts cannot be deterred by thenovelty of an action. They usually look at facts and if from those facts a court is satisfied that: a. b. c. d. The defendant was under a duty to the plaintiff There was a breach of that duty The defendant suffered a legal injury and The injury was not too remote. If these entire factual situations exist, the court will surely provide the remedy. See example case, the trial court ought to have provided a remedy for the right of appellant. C Bello v A.G. Oyo State (1986)5 NWLR (pt 45) 82817 supra. 12 Htts://en.m.wikipedia.org/…/mamxims-of… Ibid 14 Bello v A.G, Oyo State(1986) 5 NWLR (pt.45) 828 15 FBN PLC. V Associated Motors co.ltd (1998) 10 NWLR (pt712)256) 16 Omoyinmi v Ogunsiji(2008)3 NWLR (pt 1075) 471 at pp, 490 part f 2008 17 Ibid pg 3 13 4 These are the Laws regulating the operation of Banks in Nigeria After the establishment and licensing of a bank in Nigeria, it can legally commence business, however, in doing business it has to operate within the purview of the applicable laws in Nigeria. In Nigeria, we have laws that guide banking business. These laws include the BOFIA, CAMA, CBN, and the Bills of Exchange Act. Cap B8 LFN 2004. 18 The conduct or operation of banking in Nigeria is regulated by four principal Statutes. These laws provide anoperational standard to be conformedwith banks. They also provide the legal basis for their activities. Consequently, every bank is mandated to operate within the ambit of the laws. Any transaction or business done outside the law is unconstitutional, void, void abinitio and illegal. The Banks and other Financial Institutions Act regulates the activities of all banks apart from the Central of Nigeria. The BOFIA regulates banking business and management of banks while the CBN Act establishes the CBN as the apex regulator of the banking sub-sector with functions and powers under the Act. The Bills of Exchange Act deals with the negotiable instruments, which are used by banks in the conduct of their business, especially cheques.19 See also current Nigerian cases in tandem with this debtor-creditor principle below. Trade Bank PLC v. Barilux (Nig) Ltd (2000) 13 NWLR. Supra 20 Co-operative Development Bank Plc v. Joe Golday co. Ltd (2000) 14 NWLR Pt688, 514.21 It is categorically stated that the relationship between a banker and the customer is that of a debtor and creditor. Rights of the bank 1. Right to charge reasonable interest on credit facilities granted to the customer and reasonable commission for some other services rendered. 18 Law Of Banking And Insurance I, NOUN, Dr. Samuel Apenega Ibid 20 Trade Bank Plc v. Barilux (Nig) Ltd (2000) 13 NWLR 21 Co-operative Development Bank Plc v. Joe Golday co. Ltd (2000) 14 NWLR Pt688, 514. 19 5 2. Right to obtain reimbursement from the customer in respect of expenses incurred on that customer’s behalf,e.g. where a bank insures a mortgaged property on behalf of the customer. 3. Right to exercise theright of set off as may be to his advantage and as may be permitted by law and by banking practice. 4. Right to use money deposited by customers without recourse to, or prior approval from the customer. 5. Right to close the account after giving reasonable notice 6. Right to recall overdraft permitted on thecurrent account when circumstances are such that it is the best course of action and to expect immediate payment from the customer. 7. Right to exercise the right of lien on its customer’s properties in its possession provided that there is in agreement that is on consistent with alien.22 8. Right to refuse payment of any cheque or other payment orders, not propertydrawn and even if property drawn, to refuse payment if there is any legal bar towards payment whether or not the customer is aware or where funds in his account are insufficient. 23 Rights of the Customer 1. Right to deposit or pay in cash, cheques, and other payable instruments into his account. 2. Right to get payment upon the customer’s written request either to himself or to a named beneficiary provided the account is in fund or credit arrangement has already been agreed. 3. Right to have his account conducted in a condition of secrecy 4. Right to be given reasonable notice before his account could be closed. 5. Right to be notified of any suspicious adverse events on his account.24 6. Right to be furnished with the statement of account regularly or upon request.25 7. 22 Ibid pg 1 LayiAfolabi – Law and Practice of Banking, in Law Of Banking And Insurance I, NOUN, Dr. Samuel Apenega 24 Ibid pg 1 25 LayiAfolabi – Law and Practice of Banking, in Law Of Banking And Insurance I, NOUN, Dr. Samuel Apenega 23 6 We have Customers’ Duties and Banks’ Duties Here, we shall discuss their duties below: Duties of Bank (a) To collect cash, cheques and other payable instruments deposited by its customers. See Dike v. ACB Ltd (2000)5 NWLR pt 657, 44526 (b) To abide by the customer’s written mandate provided the account is in fund or credit arrangement has already been agreed. UBN v. Nwoye (1996)35 LRCN 23427, the mandate is regularly drawn, and there is no legal impediment towards repayment. (c) To give reasonable notice before closing account. (d) To provide the customer with statement of account regularly or upon request (e) To draw the customer’s attention to any suspicious adverse or other circumstances as may be prudent to bring to the customer’s attention so as to forestall forgery or any unauthorized dealings by third parties (LayiAfolabi)28 Duties of the Customer (a) To give written instruction to the bank if he seeks to withdraw his money. Such instruction usually includes cheques, standing orders, direct debit instructions. (b) To inform the bank without delay of any suspicious dealings on his account as may come to his knowledge e.g. loss of cheque leave or chequebook, forgery of his signature or other things which though not aforgery, may require that the bank's records be amended e.g change of signature, delegation of authority to sign etc. (c) To draw a cheque with care and diligence and in a manner that will not facilitate fraud, forgery or unauthorized alteration. (d) To pay reasonable commission and interest on borrowed funds as agreed (e) To repay overdrafts on demand and to repay theloan and other facilities as agreed. (f) To ensure that his account is in fund or credit arrangement made to meet cheques and other payment instructions issued (LayiAfolabi)29 26 Dike v. ACB Ltd (2000)5 NWLR pt 657, 445 UBN v. Nwoye (1996)35 LRCN 234 28 Ibid, pg 1 29 Ibid ,pg 1 27 7 If you are observant enough, you will notice that most of these rights are not been observed in Nigeria by banks. 1. 2. 3. 4. 5. 6. Recommendation I would recommend re-orientation of banks’ principal. The government needs to create awareness for orientation of the bank’s customers for their rights and duties in Nigeria. The government has enough boards and acts that regulate banks in Nigeria but they need to be visited often or seldom to monitor the activities of the banks in Nigeria. Customers need to be monitoring their account often. An acquaintance of the customers’ and bankers’ rights and duties are needed in Nigeria and the whole Africa as a whole. Securities bank’s securities need to be formally oriented, pass exams before recruitments Conclusion We shall conclude this article, I don’t see the reason why banks will be intimidating their customers, without customers, there will be no bank or people to attend to by banks. It baffles me when I see such; many things need to be addressed in Nigeria and the whole Africa continent. I don’t see the reason why banks will be implementing an obnoxious law that does not favor the society and that is unconstitutional that is outside BOFIA, BEA, and CBN act, which regulate banks in Nigeria as far as Iam concerned the banks in Nigeria needs to be monitored especially their selfish rules and monetary aspect of banks. Banks in Nigeria have dealt with me personally before I read banking and insurance law which acquainted me and put a stop to their intimidation. We have discussed banks and customers’ relationship, duties of the banks, customers’ duties, rights of the bank, rights of the customers, my experience in bank, principles of ubi jus ibiremedium as a solution to the menace, and we ended it with recommendation 8 THE DISASTER OF FEDERAL CHARACTER NonsoObiadazie James Jnr University of Nigeria, Enugu Campus African Law Journal Abstract This paper examines the demerits of the principles of federal character in Nigeria. Before and after independence from our colony master, Nigeria has gone through various political or constitutional arrangements for stability to be sustained amongst her habitants. To enhance this national stability, the federal character principle was for the first time entrenched in the 1979 Constitution of the Federal Republic of Nigeria which ushered in the presidential system of government. This principle which was contemplated would foster equitable indigenous representation in all arms of government especially in the executive bureaucracies has now become an unrealistic goal to ensue. Finally, this article posits that there are less benefit and more atrocities that have been derived from its application. Introduction It is very much foreseeable and exceedingly disappointing on the veritable issues, I dearly want to orchestrate in this very paper. It is deplorable to admit that, the platform and manner, we put into operation our governmental policies and initiations are on no account in friendship with the principles of meritocracy and true value. Notwithstanding, it is clouded with moist of dishonesty, corruption, contempt, nepotism etc. The manifestation of thefailure of our under-developed nation to proliferate is the tendency that her leaders live in the world of make believe and unrealistic expectations. It is fiercely dismaying and disappointingly shameful that a nation like Nigeria is still wallowing in the abyss of unrealistic implementations. 9 A Brief History of Federal Character It would be meaningless in the discourse of the concept of Federal Character principle without elaborating multifarious issues that prompted its existence. Before, the arrival of the white explorers, missionaries, adventurers and sailors, who later, became colonizers. The geopolitical entity known as Nigeria was made up of different empires, kingdoms, and autonomous communities. For instance, in the northern part, the system of government adopted is monarchical in nature popularly regarded as a highly centralized method of administration. The Hausa/Fulani in thenorth has also been described as an Emirate system with Emirs as the head of each emirate. There were two headquarters, in Sokoto and Gwandu headed by Emirs of Sokoto and Gwandu respectively. If you clap down to the West, the Alaafin is the administrative and political head of the empire. He runs the empire with the help of the council of seven chiefs called the Oyomesi headed by the Bashorun; these chiefs are each in charge of the seven wards in the capital city of the empire. While in the East, the administrative system is decentralized and characterized as acephalous because of the absence of a centralized government. It is, therefore, a chiefless society which was segmentary and egalitarian in nature. There was no supreme king like Oba and Emirs as seen in the West and North. That notwithstanding, after a strong power tussle by the British and her European counterparts, France and Germany who later succumbed. Britain established its stronghold in Lagos and later swindled King Duncemo to give away his ancestral kingdom. Lagos was annexed by the British in 1861 and made a colony. It was ruled by the colonial office. The inland river valleys and surrounding areas were controlled by Royal Niger Company (RNC). Other parts of Nigeria were mainly acquired through the Berlin Conference of 1885. Furthermore, an effort to find solutions to disunity which sometimes bedeviled Nigeria ensuing from mistrust among the entities that makes up Nigeria, Gen. R. M. Muhammed increased the number of states from twelve to nineteen. This did not call for unity in the country. Gen. Ibrahim Babangida continued the creation of states from nineteen to twenty in 1987 and thirty in 1991. Gen. SaniAbacha increased it from thirty to thirty-six. Creation of states in Nigeria has not served as a solution for disunity. Still, in search of unity in the country where unequal indigenous representation and fear of domination would be removed, the Constitution Drafting Committee came up with the institutionalization of federal 10 character in1979, 1989 and 1999 constitutions respectively. Gen. SaniAbacha established federal character commission for the implementation of federal character principle in 1996. Appraisal of the Adversity Before I indulge into the expedition of rightly illustrating the ills of Nigeria conception of Federal Character; It is imperative to glaringly define this concept in lieu with the 1999 constitution. By virtue of Section 14 (3) CFRN 1999 which states: "The composition ofthe Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promotenational unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few state or from a few ethnic or other sectional groups in that Government or in any of its agencies." In applying the literal canon of interpretation to this provision, it would seem that the provision was put in place as a pre-emptive provision against any form of domination by any group of people in Nigeria. However, the essence of affirmative action is curative and not preemptive; such that it is applied in situations where there has been subjugation of another ethnic group within a nation or in cases of gross racial or class discrimination. We claimed to adopt a principle that would heighten peace, harmony, and unity within the confines of our multi-ethnic circumstance, but indeed, it undermines personal potentials and integrity. There are few areas where the federal character is manifestly causing more attendant problems than the intended national integration. In the sense that, it is the provision of Sec. 15(3) CFRN 1999, which evidently provides that: "accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited." This provision is in line with the age-long tradition of legal equality where there is no basis for any sort of subjugation and discrimination. It is evident that sec. 14(3) and sec. 15(3) CFRN 1999 respectively are in contradiction. Sec. 14(3) CFRN 1999, promotes the principles of affirmative action and the resultant effect is the enhancement of discrimination in the sense that, appointments for important positions in government agencies is pragmatically based on one’s place of origin and other discriminating criteria which is also inimical to Sec. 42(1) CFRN which vividly preached against discrimination. Thus, devaluing the content of 11 one's capability. More so, It undermines meritocracy and promulgates mediocrity. In this aspect, it deprived us of the dividends to explore the quotient of our potentials and thus, a parasite that eatsup the positive content of our workforce. It is disheartening that our workforce is encompassed with barons of ineptitude and ineffectiveness all in the name of national integration. It frustrates the growth of our civil manpower and human resources. Mediocrity is a facet of unevenness of a certain people who were given appointment not on a platform of capability but on weakness; a syndrome I called “sagacity of self-pity”. A realistic example of the matter is that of a popular amusement video captioned “Oga at the Top”. It is a national embarrassment for a Managing Director of an agency who could not disclose to the media the "website" of the agency he is manning. What a pity! Furthermore, Sec. 15(3) CFRN 1999, provides for legal equality, a merit-based decision-making devoid of all forms of discrimination and extrinsic factors. It is pertinent to say that, any nation that is serious about her national development and progress must as of necessity arise beyond mediocrity and ensure that decisions are merit-based and not on some frivolous and obnoxious classifications. In the twenty-first century, this principle of affirmative action is fast becoming obsolete and countries are committing themselves to a merit system that promotes equality and national development. Conclusion/Recommendation From the foregoing, I would climb on top of the highest mountain and scream foul play to the iniquities this principle has bestowed on our economy. Even the socalled quest for national integration has not yet actualized since the implementation of federal character principle.So, on this juncture, I recommend an expurgation of that section and to explore other programmes with explicit merit foundation for national integration so that we can fully see the potentials of people who are enthusiastic and geared up to serve and to put things inaction for the progress of our nation. 12 CONSTITUTION BUILDING IN ZAMBIA Felix Bilenga LLB, ZAOU., LUSAKA-ZAMBIA African Law Journal Abstract In this paper, we shall discuss the constitution of the Zambia, the road to people driven constitution (Constitution Building) in Zambia, introduction, conclusion and we also proffer solution as arecommendation. Introduction A constitution provides a society with a vision of the future. It is a guiding document containing principles that limit the state’s power and protect people’s liberties and rights. It is a supreme law that provides for an open and free society based on government accountability, the rule of law, and transparency. 1 This article will concentrate on discussing the road to a people driven constitution (Constitution Building) in Zambia. Constitution Building Constitutional expert Vivien Hart writes that recent constitution-making processes have required that the public is involved in the pre-, during and post-phases of the drafting of a constitution. She lists the practices adopted by countries that show true commitment to the process and the desire to see meaningful democratic political practices take root in the political and social fibre of its people. These practices include prior agreement on broad principles as part of the first phase of constitution making; an interim constitution to provide the space for further, ongoing, and more detailed negotiations for the final constitution; civic education and media campaigns using both the print and electronic media; the creation and 13 guarantee of channels of communication among the structure undertaking the process, the public, and government; elections for constitution-making assemblies; open and transparent drafting committees; and approval and adoption by various combinations of representative legislatures, courts, and referendums.2 During the constitution-making process, various aspects should be in place before the substance or content is negotiated and drafted. Gone are the days when the traditional method of making a constitution was acceptable and resulted in a supreme law that satisfied its citizenry. Over the years society has developed and changed, with criticism and participation, activism, advocacy and lobbying all playing a role in people’s lives, most especially when they have a strong vested interest in the topic under political discussion. The quest for a popular ‘people-driven’ constitution has historically been both laborious and elusive for Zambia. The country has one of the highest turnovers of constitution reviews in the Southern African Development Community (SADC) region, with six constitutional phases in its history since independence in 1964. 3 These six constitutional phases mostly lacked popular support and by extension popular legitimacy, making the nexus between constitution-making and civic participation come under greater review in the ongoing review exercise from 2011 until today.Zambia’s six constitutional reform phases are as follows:  Phase one is the 1953 Federation of Rhodesia and Nyasaland (Constitution) Order that ushered in a Federation for ten years and gave impetus to the independence movements and Cha-cha-cha civil disobedience campaigns staged during the run-up to independence in Northern Rhodesia (1961).  Phase two is the 1962 Constitution, whose promulgation was engineered and concluded by an unrepresentative executive.  Phase three is the 1964 Independence Constitution, which provided for multiparty democracy with an executive president. It was designed to address the impending handover of the reins by the colonial administration but 2 Ihonvbere, Julius O (2000). “How to make an Undemocratic Constitution: The Nigerian example”. Third World Quarterly 21/2. 3 L M Mbao, The politics of constitution-making in Zambia: where does the constituent power lie? Draft paper presented at the African Network of Constitutional Law Conference on Fostering Constitutionalism in Africa, Nairobi April 2007, 2. 14 enshrined a rigid procedure for amendment, having been negotiated at the highest level with limited stakeholder involvement.  Phase four is the 1972 Constitution, which ushered in the one-party state whose process was perniciously executive-driven. The executive-led reforms essentially removed so-called entrenched clauses in the constitution in particular and expunged the referendum clause required for constitutional amendments that impinge on the Bill of Rights and amajor provision requiring aparliamentary majority.  Phase five is the 1991 Constitution, which re-introduced pluralism. The rushed process was mainly driven by the executive as a knee-jerk reaction to theheavy civic demand for multipartism.  Phase six is the 1996 Constitution, which consolidated the country’s embryonic multi-party system. This phase is acknowledged as the first genuinely broadbased consultative process, even though the executive through the cabinet intervened at the adoption of the constitution. The seventh phase, which is ongoing, started in 2005 under the administration of the then ruling Movement for Multiparty Democracy (MMD). The MMD initially presented a 14-step roadmap for constitutional reform spreading over 258 weeks, which was challenged by a CSO called the Oasis Forum, which in turn presented an alternative roadmap that spread over 71 weeks.This later created a deadlock in the process and the MMD failed to get majority support in parliament to pass amendments. The process was legally thwarted in March 2010 and revived by the newly ruling PF in November 2011. However, since independence, Zambia has failed to come up with a people-driven constitution owing to political interest and interference. The ruling PF which came as a relief for many people in 2011, seem to add on to a long list of failed attempts. Continuing from the then ruling MMD, the PF government is charged with among others the responsibility of completing the constitution making process and spearhead the coming up of the people driven constitution which is being advocated for by the people through the grand coalition. But in a sudden turn of events, after the release of the Final Draft Constitution by the Technical Committee (TC) which went round to collect submissions from the citizens throughout the Country, the PF government decided to adopt the new 15 Constitution in two ways, that is, passing all clauses through Parliament and a referendum for the Bill of Rights. This is contrary to the recommendations made by the Technical Committee. In the Technical Committees’ report, the people of Zambia wanted to enact the constitution through a referendum. However, the PF government has done this by formulating a law which they are calling National Constitution Amendment Bill No. 17. The PF have argued that taking the entire draft to the referendum will be costly and the new Constitution may go through with some discrepancies and unrealistic clauses. So they would rather debate the clauses in Parliament to sort of like filter them. The government has abandoned the Participatory Constitution Making Process which brings together citizens to draft a constitution that addresses critical issues facing their nation. If the constitution building process is participatory, it results in a constitution that is owned by the people, enhances unity among citizens and deepens the relationship between the government and the people. A participatory constitution making process enables citizens to have ownership over the constitution while feeling part of building the nation. The process must educate the public about the role of the constitution and the sometimes complex choices that must be made. Conclusion In conclusion, the PF government must note that a participatory process emphasizes the importance of citizen engagement, promotes legitimacy, encourages citizen engagement in government, and promotes the public'sownership over the constitution. Zambia in its current state has no hope for a people driven constitution in a decade or so. This is because the ruling PF has a majority of seats in parliament, and it is against most of the proposed recommendations by the people. Among others, people of Zambia wants; the Proportional representation, Running mate, 50%+1 vote, all of which the PF is against. The current phase of constitution-making largely resembles past elite-driven processes, where the ruling executive had a monopoly over content, adoption, and enactment. As such, the success of the exercise now hinges on how widely accepted the method of its validation and adoption is. 16 Recommendations 1. The government has to embrace the Participatory Constitution Making Process which brings together citizens to draft a constitution that addresses critical issues facing their nation. If the constitution building process is participatory, it results in a constitution that is owned by the people, enhances unity among citizens and deepens the relationship between the government and the people. 2. The government should adopt the referendum method in bill draft to avoid favoritism. 3. Bill drafting or making law process has to be accountable and transparency, however, since independence, Zambia has failed to come up with a peopledriven constitution owing to political interest and interference, this is more reason Zambia should be transparency in whatever they are doing concerning our constitution. 4. Let there be aseparation of power entirely and the rule of law should be obeyed, it will aid the problem of theconstitution. 17 THOU ART BURIED OH DISCRIMINATION, BUT YOU STILL RULE US FROM YOUR GRAVE IroegbuEzinna Edge African Law Journal Abstract This write-up examines the discriminatory practices in Nigeria irrespective of the fact that there are laws enshrined in our Constitution. In the course of this write-up we looked at the discriminatory practices we have in Nigeria.Discrimination based on political affiliations: political affiliation is when a person associates themselves with and takes the ideas and morals of a certain group.1 A person who is connected to a political party can be said to be politically affiliated with such group or party. Discrimination based on political affiliations is when a person is treated differently from other people because the person is not amember of a particular group or party. This is when the Government of a State, shows unnecessary preference over a certain group of people in awarding of contracts and appointment based on political affiliations. Discrimination in education: Discrimination in education occurs when a candidate or student receives unfavourable treatment which is quite different from how other students or candidates are treated. Most predominately in Nigeria system of education, discrimination occupies a great seat hence non- members or non-indigenes are not accorded equal opportunity to study in the University of their choice. Non-indigene syndrome has taken a new dimension in that admission into atertiary institution is limited to certain class of people based on thestate of origin. 2 Discrimination based on religious beliefs:religious discrimination is the unequal treatment of employees based on their 1 2 http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. Dr. (Mrs) Nkechi C. Njoku, Journal of Education and Practice. 18 religious beliefs. Discrimination based on religion involves treating a person unfairly because of his religious beliefs or affiliation and is prohibited by law. As with other forms of discrimination, religious discrimination includes harassment and preferential or negative treatment. Discrimination based on sex: sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex.Sex discrimination arises from theunwarranted treatment of a person due to her sex.In Nigeria, culture has a pervasive influence on how women are treated. The Culture Policy of Nigeria (1988), the official document regulating the administration of cultural matters, lends credence to the fact that culture represents the totality of the way of life of a given society. 3 Discrimination based on ethnicity: this is when a person is treated more favourable than others based on the tribe or the ethnic background of such a person. In the context of this study, it involves a state of being unfair on some group informed by prejudice, such discriminative behaviour leads to denial of people the opportunity to participate in a given activity solely because they belong to a particular ethnic group or state.Discriminatory practices based on age: age discrimination involves treating someone less favorably because of his or her age.In Nigeria, it is hard to get employed as a fresh graduate with an advert that says 10 years’ experience. It baffles me when I read such advert. Discrimination in the Workplace: Discrimination in the workplace is when an employee is treated differently for the other employees4. If Mr. B is treated somewhat differently from Messrs A, C, D and E on grounds not supported by acontract or in conflict with the provisions of the law we say Mr. B have been discriminated against. Effects of discrimination:High rate of unemployment: some applicants are denied employment because they are not indigenes of that particular state especially whenever jobs are scarce there will be thelikelihood of anincrease in discrimination against non-indigene. Discrimination promotes nepotism, favouritism, and “familitocracy” instead of meritocracy. Finally, we ended its recommendation and conclusion. 3 Abara, Chinwe Julie, Gender and Ethnic Inequalities, Discrimination and other Human Rights Abuse 6 March, 2010, Vanguard News Paper, Nigeria. 4 th 19 Introduction Discrimination has become endemic in Nigeria, it has eaten deep into the fabrics of our society Nigeria, citizens are discriminated against based on age, sex, religious beliefs, political affiliations etc. Discrimination has pervaded every sector in Nigeria. Discrimination is enthroned on high and low places. Always well dressed and chairs virtually all our sectors (agricultural, manufacturing, oil, and gas etc.) Where meritocracy ought to reign, discrimination, intolerance, and nepotism reign. The oxford advanced learners dictionary, 8th edition defined the word discrimination as the practice of treating someone or a particular group in a society less fairly than others based on; age, race, and gender.5 Discrimination according to Merriam Webster’s dictionary is the practice of unfairly treating a person or group of people differently from other people or groups of people. 6 From the above discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex, race, age, religion and political beliefs. Discrimination in the words of Robin Williams in Merton (1969) is a differential treatment of individuals considered to belong to a particular social group, ethnic or state.7 We have two types of discrimination namely direct and indirect discrimination. Direct discrimination occurs when an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited group while Indirect discrimination refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of human rights as distinguished by prohibited grounds of discrimination. 8 Ever since Nigeria got her independence on 1st October 1960, Nigeria is yet to eradicate the discriminatory practices in the country even after ratifying so many treaties, enacting laws against such practices and with a constitution that champions equity, fairness, impartiality, justice and tolerance. In Nigeria, we have two major religions vis-à-vis Islam and Christianity and other indigenous beliefs across the country. We also have three major ethnic groups, the Hausa-Fulani, the Igbo, and the Yoruba, and other multifarious ethnic groups. 5 Oxford Advance Learners Dictionary, 8th Edition. Merriam Webster’s Dictionary. 7 Merton, R. (1969), Discrimination and the American Creed. 8 www.wikipedia.com. 6 20 Northern Nigeria is home to the Hausas, Fulani’s and Kanuri. The preponderant religion in Northern Nigeria is Islam. In the Eastern part of Nigeria, we have the Igbo whose main religion is Christianity. The Yoruba people can be located in the Western part of the country. They practice either Christianity or Islam. For any country to progress there must be fairness, tolerance, and equity which are the antithesis of discrimination. After Nigeria’s Civil War, better known as Biafra War, (6 July 1967- 15 January 1970), a war which was fought to reunite the country and yet we have not learnt any lesson.9 State and local governments throughout Nigeria discriminate against non-indigenes in ways that contravene the Nigerian Constitution, Statutes, and International human rights law. The problem we have is that the federal government has done nothing to stem such practices. Section 42(1) of the Nigerian Constitution as amended in 2011 provides that- a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason only that he is such a person be “subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive and administrative action of government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject 10 . This very provision of the Constitution is in consonance with Article 2 of the International Covenant on Civil and Political Rights (ICCPR) which requires parties to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognized in the present convention, without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other statuses11, and also Article 2 The African Charter on Human Peoples Rights which provides that the rights guaranteed by the charters other provisions must be respected “without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status12.” 9 www.google.com. Section 42(1), Constitution of Federal Republic of Nigeria, as Amended. 11 Article 2, International Covenant on Civil and Political Rights (ICCPR). 12 Article 2 The African Charter on Human Peoples Rights. 10 21 Let us not forget that it is trite law that the constitution is supreme and its provisions shall have binding force on all authorities and person throughout the Federal Republic of Nigeria by virtue of Section 1 of the 1999 Constitution as amended in 2011. 13The cases of INEC & ANOR v. Musa,14 A.G. Abia State v. A.G Federation,15 and P.D.P v. C.P.C.16 Discriminatory Practices in Nigeria In Nigeria, it is glaring that we have “Second-Class Citizens” to borrow the words of BuchiEmecheta in her epic and life changing novel “Second Class-Citizen”. Just like Adah in the novel we are still striving for everything whereas we have a government in place, yet they are promoting and enshrining the hydra-headed monster called discrimination.17 Discriminatory practice is the means of treating a person somewhat differently from another person based on the person’s sex, race, and gender. Discriminatory practices in Nigeria have continued unabated although we have some antidiscriminatory laws in Nigeria because the government is looking the other way round. The following are some of the discriminatory practices we have in our dear country Nigeria; Discrimination Based on Political Affiliations Political affiliation is when a person associates themselves with and takes the ideas and morals of a certain group. A person who is connected to a political party can be said to be politically affiliated with such group or party.18Discrimination based on political affiliation is when a person is treated differently from other people because the person is not amember of a particular group or party. This is when the Government of a State shows unnecessary preference over a certain group of people in awarding of contracts and appointment because of political affiliations. 13 Section 1(1), Constitution of Federal Republic of Nigeria, as Amended. [2003] 3 NWLR (Pt.806) 72. 15 [2006] 16 NWLR (Pt.1005)256) at 381. 16 [2011] 17 NWLR (Pt.1277) 485 at 511. 17 Second Class Citizens by BuchiEmecheta. 18 Ibid at 1. 14 22 In Nigeria’s political terrain currently, we have two predominant parties, All Progressives Congress (APC) which is the ruling party in Nigeria and People’s Democratic Party (PDP). If you are a politician in Nigeria and you are not amember of the A.P.C “sorry is your name”. The country Nigeria has become a merchandise for APC. The deputy Senate President Senator Ike Ekweremadu is currently in a state of dilemma, battling foreseen and unforeseen forces. Why? He is a member of the Peoples Democratic Party. The current governor of Ekiti State, AyodeleFayose had his account frozen. Where is Fayose’s immunity clause as a sitting governor as enshrined in the Constitution?19 In most states in Nigeria, non-indigenes are denied the right of franchise. The nonindigenes are reminded to go to their state of origin to cast their votes. In EbonyiState, for instance, non-indigenes/non-membersare not allowed to canvass for any political position irrespective of the fact they are members of the same country. However, denial of political right caused by discrimination is a denial of opportunity to contribute to societal progress and access to better means of livelihood.20 Nigeria is a country that practices a multi-party system and not a one party system. The political terrain is no longer as exciting and unpredictable as it used to be. It is no longer who the godfather wants that actually gets into office now. Opposition parties should be encouraged instead of trying to snuff the life out of them, without them the government won’t be able to know its scorecard. Opposition parties are the yardstick in any democratic government, opposition is the strength of democracy and they also stem dictatorial tendencies in any government. Discrimination in Education Discrimination in education occurs when a candidate or student receives unfavourable treatment which is quite different from how other students or candidates are treated. Most predominately in Nigeria system of education, discrimination occupies a great seat hence non-members or non-indigenes are not accorded equal opportunity to study in the University of their choice. Non-indigene syndrome has taken a new dimension in that admission into atertiary institution is limited to certain class of 19 20 S 308 of 1999 Constitution of the Federal Republic of Nigeria, as Amended Dr. (Mrs) Nkechi C. Njoku, Journal of Education and Practice. 23 people based on thestate of origin. In the words of Onwuka (1992) admission into the Nigeria University, as well as course of study, depends greatly on aquotasystem and who do you know. Onwuka emphasizes the effect of discrimination which he claims could lead to physical hostility and rejection and even non-compliance by members of the group. Onwuka noted that equal education opportunity would go a long way to foster unity and peace in Nigerian society. Most tertiary institutions in Nigeria have got a legal backing on aquota system and catchments area laws to discriminate against members of another ethnic or state as a rule for admission.21Okeke (2002) observed that non-indigene syndrome, especially in the field of education, has contributed to half-baked graduates hence people who are not qualified are given opportunities to areas they cannot study.22 In BosedeBadejo V Ministry of Education, 23 the Appellant sued the respondent for the enforcement of her fundamental human right of freedom against discrimination. She was piqued by the policy which allowed a candidate from Kano State, for instance, with 151 marks to have a place in Unity Schools as against herself from Ogun state who scored 293. BosedeBadejoe was not the only person dealt with such fate, yours sincerely was equally dealt with such blow in 2009 and 2011. In Northern Nigeria, there is nothing like ameritocracy in their educational sector. You will hear things such as “they are educationally disadvantaged”. Up until this very moment, I am yet to understand the meaning of educationally disadvantaged. Do I keep asking myself, who made them educationally disadvantaged? Did we not seat for the same WASSCE? Did we not take the same aptitude test? What criteria make one educationally disadvantaged and the other party educationally advantaged? Being a northerner comes with so many perks on the back. 21 Onwuka, C.J.A. (1994), History of education, Nsukka. Okeke, C.A. (2002), Indigenization in Nigeria. 23 [1990] 3 NCLR (Pt.915). 22 24 The table below would do justice to the above: CUT-OFF MARKS FOR ENTRANCE TO FEDERAL UNITY SCHOOLS STATES MALE FEMALE ANAMBRA 139 139 IMO 138 138 ENUGU 134 134 LAGOS 133 133 OGUN 131 131 DELTA 131 131 ABIA 130 130 EDO 127 127 OSUN 127 127 OYO 127 127 ONDO 126 126 AKWA IBOM 123 123 KWARA 123 123 EKITI 119 119 KOGI 119 119 RIVERS 118 118 EBONYI 112 112 BENUE 111 111 CROSS-RIVERS 97 97 PLATEAU 97 97 NIGER 93 93 KADUNA 91 91 FCT ABUJA 90 90 BAYELSA 72 72 KANO 72 72 ADAMAWA 62 62 KATSINA 60 60 GOMBE 58 58 NASSARAWA 58 58 BORNO 45 45 JIGAWA 44 44 BAUCHI 35 35 KEBBI 9 20 SOKOTO 9 13 TARABA 3 11 YOBE 2 27 ZAMFARA 4 2 25 Higher National Diploma (HND) students are being discriminated against in their places of work and the society at large, even after spending the same number of years as their counterparts who possess Bachelor of Science (B.Sc). I have to applaud Mr Pius ChukaEnebeli an indomitable and resolute man, who has defied all barriers to be amongst the new wigs. Mr.Enebeli is an 80-year-old man who hails from Delta state, a graduate oftheUniversity of Nigeria Nsukka who has proved that age is no barrier in education by becoming the oldest wig ever produced by the Nigerian Law School. A dream come true indeed!!! Hold it! He made history that we cannot dispute or disprove, but had it been the Nigerian Government had provided an enabling environment for young Pius, by now he would have retired as a Judge or the Chief Justice of the federation. The government of the day should create an enabling environment for students by encouraging the different institutions of learning in Nigeria, granting scholarship to students irrespective of where the student comes from, subsidizing tuition fees, discrimination being meted on law students of theNational Open University of Nigeria by the council of legal should be tackled. In the words of Justice Cornelius Akintayoattending the best school or making a first class would not make one a good lawyer,24I absolutely agree with him, don’t forget that the hood doesn’t make a monk.The issue of subsiding tuition fees by the State Government for indigenes of that state alone should be discouraged, setting a particular cut off mark in an examination for students based on their states of origin should be expunged. I wonder how many people, who are still roaming the streets because of their inability to pay the high fees in our schools, scale thecatchment area nonsense and the non-indigene wahala. According to Nelson Mandela, “Education is the most powerful weapon we can use to change the world” Discrimination Based on Religious Beliefs Religious discrimination is the unequal treatment of employees based on their religious beliefs. Discrimination based on religion involves treating a person unfairly because of his religious affiliation and is prohibited by law. As with other forms of discrimination, religious discrimination includes harassment and preferential or negative treatment. By law, employers must make reasonable 24 28th July, 2016. www. pmnewsnigeria.com 26 accommodations for religious employees, regardless of their religion. This may include flexible scheduling to allow an employee his day of worship off; allowing an employee to wear garments associated with her religion; or allowing people to follow a religion's grooming policies, so long as it does not cause an undue hardship on the business. A company cannot force its employees to attend a religious service or participate in religious activities. In Nigeria, we have two major religions vis-à-vis Islam and Christianity and other indigenous beliefs across the country. Religious discriminatory practices are rife in Northern Nigerian predominantly inhabited by Muslims, churches are been burnt down on a daily basis and the government is looking the other way round. People are killed based on their religious orientations and beliefs on a daily basis in Nigeria.A73-year-old Christian grandmother was beheaded in Kano because she asked some Muslims to stop washing their feet in front of her door before their prayers, a female pastor of the Redeemed Church of God was hacked to pieces by a mob of Muslims in the Kubwa district of Abuja simply for doing her morning cry of evangelism and urging the people to give their lives to Christ, over two hundred Muslim youths burnt down a Catholic Church and attacked worshippers in Niger State, claiming that they had no right to go to church on a Friday because it was the Muslim day of worship, a Christian traditional ruler in Plateau State was matchetedto death by a group of Muslim militants and Fulani herdsmen, more than two hundred persons met their untimely death through the hands of Fulani herdsmen in Nimbo community in ( isiuzoruwani) in Enugu State and yet we have a government in place. Tufiakwa!!! The Christian community is not doing much to end discriminatory practices in the church, rather they are promoting it. In James 2 vs 2-4; For if there come unto your assembly a man with a gold ring, in goodly apparel, and there come in also a poor man in vile raiment and ye have respect to him that weareth the gay clothing, and say unto him, sit thou here in a good place; and say to the poor, stand thou there, or sit under my footstool. Are ye not then partial in yourselves, and are become judges of evil thoughts? In our churches today, a believer is no longer a person who believes in Jesus Christ and abides by his laws, but a person who is wealthy contributes large sums to the church, gives cars to men of God and has a good relationship with the Bishop. The church is losing sight of the race; too many 27 activities are driving them further away from their Creator and that is why when they pray they do not receive revelations or answers to the prayers unlike the old Prophets in the Bible. Christian students are also part of this ugly spate, members of the Scripture Union and other Christian associations in our institutions treat non-members as people that are condemned to live perpetually in hell, forgetting what Jesus Christ said in Luke 5 vs 31-32 that those that are whole need not a physician; but they that are sick. verse 32 I came not to call the righteous, but sinners to repentance. Why then do “holy Christian students” discriminate against the not so holy students thereby pushing them further into the world of sin. Sister Brother, are you God? Discrimination Based on Sex Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex.Sex discrimination arises from theunwarranted treatment of a person due to her sex. In Nigeria, culture has a pervasive influence on how women are treated. The Culture Policy of Nigeria (1988), the official document regulating the administration of cultural matters, lends credence to the fact that culture represents the totality of the way of life of a given society. It is, therefore, no surprise that all discriminations against women tend to seek justification in cultural moves, beliefs, and practices25. It hurts to observe that most Nigerian women are held down from realizing their full potentials, all in the name and game of culture and tradition.Women are still relegated to the backyard even after so many judicial pronouncements 26 and the provisions of the constitution.27 Under the customary law of some Ibo communities, the practice of nrachi is still permissible. It enables a father who has no male issue to succeed him to keep back one of his daughters from marriage. She is expected to bear children at home through arranged paramours in the hope of producing a male child who will continue the father’s lineage.28 25 Ibid at 1. Mojekwu v Mojekwu [1997] 7 NWLR (Pt.512) 238, Mojekwu v Iwuchukwu, Asika v Atuanya [2008] 17 NWLR (Pt. 1117) 484, 27 Ibid at 3 28 Prof. E. I. Nwogugu, Family Law in Nigeria 26 28 As with racial and ethnic discrimination, sex-based discrimination takes on many forms at work. Sexual harassment is one of the most obvious forms, and may include unwanted sexual advances, propositions or crude remarks toward an employee. Sex-based discrimination may also involve preferential or negative treatment, be passed over for a promotion, or be paid at a different rate because of gender. Companies cannot discriminate against applicants based on their sex; nor can a company enact policies that apply to everyone if the policy has a negative impact on employees of a certain sex. Both men and women can be victims of sexbased workplace discrimination. Discrimination Based on Ethnicity This is when a person is treated more favourable than others based on the tribe or the ethnic background of such a person. In the context of this study, it involves a state of being unfair on some group informed by prejudice, such discriminative behaviour leads to denial of people the opportunity to participate in a given activity solely because they belong to a particular ethnic group or state. In Nigeria, we have more than 450 ethnic societies of which the predominant ones are the Hausa-Fulani, the Igbo, and the Yoruba. In some states In Nigeria today, you must be an indigene of that state or a member of that ethnic group before you will be given equal opportunity. The issue of subsiding tuition fees by the State Government for indigenes of that state alone should be discouraged; setting a particular cut off themark in an examination for students based on their states of origin should be expunged. In the current administration the federal character as set out in the Constitution is not being observed. In Nigeria all the military chiefs, Custom, Immigration, Inspector General of police General Manager of NNPC just to mention a few are Muslims. Why? Is it because others are not educated or intelligent enough? Are they the only ones in the Nigerian Military? We are watching… the world is watching… Discriminatory Practices Based on Age Age discrimination involves treating someone less favorably because of his or her age. In Nigeria it is hard to get employed as a fresh graduate with an advert that says 10 years’ experience, it baffles me when I read such advertorials. In Nigeria merit no longer determines whether an applicant gets employed, age does. 29 Nigeria is the only country in the world that doesn’t see the youths as leaders of today. In Nigeria, our leader’s belief is that the youths have a different world which is yet to be created. The same set of names we heard while growing up are still the same names we hear now, the only difference is that I get to watch them on television and the internet. The same people we read about in history books are still the same people we read about in the newspapers and current affairs. Ah! Nigeria which way forward! Where did we get it wrong? Almost all the sectors in Nigeria are headed by people who should have retired a long time ago. Older people are always given preference than the younger ones in terms of employment or appointive positions all in the name of experience. How do we get experience if we are not given the room to learn and grow? Discrimination in the Workplace Discrimination in the workplace is when an employee is treated differently for the other employees.29 If Mr. B is treated somewhat differently from Messrs A, C, D and E on grounds not supported by acontract or in conflict with the provisions of the law we say Mr. B have been discriminated against. In1994, employees who were not indigenes were disengaged in Enugu State by the then Military Government under the leadership of Alison Madueke government. Sex, age, ethnicity, religion, trade union membership, and political affiliation are some of the grounds upon which workers may be discriminated against in Nigeria in their workplace. Although Nigeria has ratified the ILO Equal Remuneration Convention, 1951 and the Discrimination (Occupation and Employment) Convention, 1958, one can state without equivocation that the state of protection against discrimination in Nigeria is very weak. Effects of Discrimination The high rate of unemployment: some applicants are denied employment because they are not indigenes of that particular state, whenever jobs are scarce there will be thelikelihood of anincrease in discrimination against non-indigene. Discrimination promotes nepotism, favouritism and familitocracy instead of meritocracy. 29 Ibid at 1 30 Insurgency: many sects or groups have risen in Nigeria with the intention of taking over the government and all of them hinges on marginalization and discrimination on the part of the government as their reasons for taking up arms, e.g. Mend,Boko Haram, Shiites, Niger Delta Avengers etc. Depression: waking up with high hopes and so excited about a job interview you are to attend that day, on getting to the office and after series of questions is remaining one final question… Are you a Christian or Muslim? I wonder how some employees who got disengaged in 1994 in Enugu under the military government of Alison Madueke survived. The increase in crime rate: discrimination when left unchecked can lead to mass violence or even genocide. The current agitations by the Niger Delta Avengers can be linked to the kind of discriminatory practices meted against them by the government. You drill oil, make the place uninhabitable, spill oil everywhere thereby making it impossible for them to farm, fish, and cause them untold hardship, yet you won’t provide adequately for them. Ewo!!! Government, is it fair? In fact, if we are to trace the entire crisis in Nigeria we will find out that all of them can be traced to marginalization, intolerance, discrimination and insensitivity on the part of the government. Poverty:The relationship between discrimination and poverty is overwhelmingly evident in developed as well as in developing countries.Discrimination can both cause poverty and be a hurdle in alleviating poverty. When government discriminates against its citizens it widens the gulf between the rich and the poor. Some government projects are not based on expertise but on political affiliation and nepotism. Corruption: Discrimination breeds corruption in a country. When the government of a State is about to employ workers, instead of employing workers based on merit, indigenization and ethnicity take precedence. In order to gain admission students who are not from the states where they applied for admission will have to play ball. 31 Recommendations 1. In our institutions and colleges, a general cutoff mark should be set for candidates in the same department. Cutoff marks based on thestate of origin should be discouraged and frowned at. 2. The government should set up committees that will look into the discriminatory practices mentioned above and fashion out antidiscriminatory laws. 3. Seminars should be held in the different sectors we have in Nigeria in other to enlighten the heads of the different sectors. 4. Stringent sanctions should be put in place in other to deter people who promote discriminatory practices in our workplaces, institutions of learning, and in our different sectors. 5. The different religious bodies we have should rise up to the challenge by preaching peace and not hate to their members. 6. The legislators should enact anti-discriminatory laws. 7. Government contracts should be made open to all and sundry instead of a select few. 8. Parents should treat and raise children on the basis of equity and equality. 9. Schools and universities should develop curriculum for gender studies in tandem with our cultural policy objective of promoting an egalitarian society where all citizens without any discrimination on the basis of gender or creed shall be encouraged to participate in nation building. 10. The government should implement the necessary strategies, policies, and action plans, which may include temporary special measures to accelerate the achievement of equality, to address discrimination. 11. The government of the day should create an enabling environment for students by encouraging the different institutions of learning in Nigeria, granting scholarship to students irrespective of where the student comes from. Conclusion This write-up is aclarion call to all and sundry to rise to this challenge of the dead and buried discrimination ruling the living. One person alone cannot pull off this odious challenge. We must all come together and unite as one to fight 32 discrimination to a standstill. United we can eliminate this menace called discrimination and pretending that it does not exist won’t solve the problem. Change is the only constant thing. This may require legislative, judiciary administrative reform to repeal discriminatory provisions or address discriminatory practices by the government or private actors, a change in resource allocation, or educational measures.The law is made for man and not man for the law. When a law ceases to serve its purpose it should be abrogated. 33 THE CONSTITUTIONAL INDEPENDENCE OF THE JUDICIARY Tobi Jude African Law Journal Abstract The essence of this article is to point out the various ways by which the Nigerian Constitution has provided for the independence of the judiciary in the country and how these constitutional provisions have become watery provisions over the years and present. Introduction The independence of the judiciary has been a clamour over the years, and it has even been a table talk among scholars.Before dancing into this myriad or the reality to know whether the independence is constitutionally recognized or declined, we must first know what the independence of the judiciary actually means. Independence has been defined by the Black's Law Dictionary to mean "the state or quality of being independent", whilst Judiciary has been defined as the system of thecourt of justice in a country.Independence of the judiciary in a simple terminology means the ability of a judge to decide a matter free from pressures or inducements. While Judicial independence based on an institution means the way by which the judiciary which is the third arm of government are being separated from the other two arms of government which is the *Legislature* and the *Executive.* Another definition of the independence of the judiciary is to have the free will to uphold the Rule of law and aid in the attainment of justice in a society. The independence of the judiciary is fully anchored in Section 6 of the Constitution of the Federal Republic Nigeria, 1999 as amended hereinafter called the 34 "Constitution" which gives the judicial powers to be vested in the court.Now meticulously perusing that section(supra), you will agree with me that, that is the first and foremost step by which the constitution which is the ground norm, the fons et origo, the beginning and the end, the alpha and the omega and which everybody must dance to the music/melody by which it plays, whether good or bad and which everybody must kowtow for. As seen in the statement of Nikki Tobi(JSC)as he then was in the case of AG Abiavs AG Federation. guarantees the independence of the judiciary, because the constitution vividly separated the judiciary from the other organs of government which are the legislature in section 4 and Executive in Section 5 of the 1999 CFRN as amended 2011.Having been that the judiciary is fused under either of those two arms(supra), then we cannot be talking of constitutional independence. Now being constitutionally independent, it will make the court which is the last hope of the common man to interpret laws and seat in the adjudication of Justice without fear norfavour, and also check the caprices of other arms of government. The constitution also guarantees the independence of the judiciary in Section 6(6)a) and (b) of the 1999 CFRN which makes all persons and authorities to be subject to the court. With that section (supra), you will agree with me that it is a clear separation because that section makes the judiciary not to be afraid. Also, it makes even the highest office holder in the country "the president" to be subject to the court jurisdiction even though he is guided by the blood of immunity in Section 308 of the constitution. Also, Section 4(8) which puts a bar or gives a bar to the legislators in making any law that will intend to oust or purport the jurisdiction of the court. With that section (supra), it simply means that the court can seat in all matters whether being civil or criminal or Election. And it makes everyone in the country and all persons to be subject to the jurisdiction of the court. 35 Also, with that section (supra), even the president which is the highest office holder in the country cannot seat as a judge or runaway from court processes or prevalent to the court. Having established the constitutional independence of the judiciary, it is worthy to know the ways by which this constitutional independence has been thwarted and subjugated in our society (Nigeria as a case study). In establishing that supra, I will list some of the ways by paragraphs: -Appointment and Removal of judicial office staffs. -The Budgetary provisions (process) -The Role of the Executive arm of governs politicians in the interference process of the freedom of the judiciary. To paragraph one and two above. Not minding the Doctrine of Separation of Powers in Section 4, 5 and 6 of the constitution, the appointment, and dismissal of judges are vested in both the hands of the Legislature and the Executive arm of government. See the Appointment sections: 231, 238, 250, 256, 261,266, 271,276,281 and 288. That gives the Executive arm of government the power to appoint justices either at the Supreme Court of Records or the Inferior Court of Records. See also the Removal of theJudicial office holder in Section 292 which is also vested in both the hands of the Executive and the Legislature.That above is a threat to the judiciary and allows executive and legislative rascality to the detriment of a judicial officer. Despite the Security of tenure as encapsulated in Section 291 and remuneration of judicial staffs in section 84, a judicial staff is not still free from the dagger of the Executive and Legislature if he/she(judicial officer) does not dance to the tune of the music of either of both arms. We all know the drama that occurred between the former chief Justice of Nigeria, Justice Aloysius Katsina and the Former President of the court of Appeal, Justice Ago Isa Salami. 36 To paragraph three above. By the provisions of the 1999 Constitution, which grants direct funding status to all the superior courts of records, there are three sources of funding for the judiciary. The superior courts of record are courts established by the Constitution, including the Supreme Court, Court of Appeal, Federal High Court, State High Court, Sharia Court of Appeal,Customary Court of Appeal and the National Industrial Court. And by the Constitution, all the aforementioned courts are to be funded from the Consolidated Revenue Fund of the Federation, the Consolidated Revenue Fund of the State, and the Federation Account. According to section 84 (2) (4) and (7) of the Constitution, the capital and recurrent expenditure of judicial officers ofsuperior courts shall be taken from the Consolidated Revenue Fund of the Federation. In other words, the remuneration, salaries, and allowances of judicial officers in the superior courts are to be charged on the Consolidated Revenue Fund of the Federation. And for the states, section 121 (3) of the same document provides that any amount standing to the credit of the judiciary shall be paid directly to the head of courts concerned. That is to say, section 124 (1) (2) and (4) says the remuneration, salaries and allowances payable to thejudicial commission shall be charged upon the Consolidated Revenue of the State. Unfortunately, all these provisions are often observed in the breach – to the detriment of fiscal autonomy for the third arm of government. Desirous of seeing the above constitutional provisions upheld in the country’s annual budgeting ritual, foremost human rights activist and former president of the Nigerian Bar Association (NBA) OlisaAgbakoba (SAN) has elected to lead the struggle to ensure direct funding for the judiciary from the Federation Account. In 2013, he filed a suit at the Federal High Court to this effect. The suit, numbered FHC/ABJ/CS/63/2013, is the Attorney General of the Federation (AGF), the National Judicial Council (NJC), and the National Assembly by originating summons. In the suit, Agbakoba contends that section 81(1)(2) 1999 Constitution excludes the remuneration, salaries and allowances and recurrent expenditures of the judiciary from the President’s Appropriation Bill, being charged upon the Consolidated Revenue Fund of the Federation. He said section 81(3)(C) of the same Constitution also guarantees direct payment to the NJC of any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the 37 Federation. Among other things, the Plaintiff’s position is that sections 84(2) and 84 (7) of the 1999 Constitution make the remuneration, salaries, and allowances and recurrent expenditures of the judiciary charged upon the Consolidated Revenue Fund of theFederation, placing them on the “first line” of funding from the Consolidated Revenue Funding above Executive Appropriation Control. The defendants, therefore, are in joint and continuing breach of sections 81 and 84 of the 1999 Constitution, Agbakoba said. Therefore, the constitutional activist seeks to establish the following: One, that by Sections 81 (2) and 84(1), (2), (3),(4), and (7) of the 1999 Constitution, the remuneration, salaries, allowances and recurrent expenditures of the Judiciary, being constitutionally-guaranteed charges (or “First Charge”) on the Consolidated Revenue Fund of the Federation, do not form part of the estimates to be included in the Appropriation Bill as proposed expenditures by the President as is the present practice. Two, that by virtue of the constitutional guarantee of independent funding of the Judiciary under Section 81 (1), (2), and (3) (c) and Section 84(2), (3), (4) and (7) of the 1999 Constitution, the National Judicial Council (NJC) ought not to send its annual budget estimates to the Budget Office of the Executive arm of government or any other Executive Authority as is the present practice but ought to send the estimates directly to the National Assembly for appropriation. Three, that the continued dependence of the Judiciary on the Executive for its budgeting and funds release is directly responsible for the present state of underfunding of the judiciary, poor and inadequate judicial infrastructure, low morale among judicial personnel, alleged corruption in the judiciary, delays in administration of justice and judicial services delivery and general low quality and poor output by the judiciary. Four, that the present practice on Judiciary funding by the defendants, which is dependent on the Executive in budgeting and release of funds is in violation of sections 81 (2), (3) (c) and 84(2), (7) of the 1999 Constitution and therefore unconstitutional, null and void. Five, perpetual injunction against the defendants from all practices on Judiciary funding which run contrary to Sections 81 (2) (3) and 84(2) (7) of the 1999 Constitution, to wit, submitting Judiciary’s estimates to the Executive instead of directly to the National Assembly and release of the Judiciary’s fund in warrants by the Executive instead of directly to the National Judicial Council for disbursement. 38 Due to the low funding of the judiciary, it has now rendered the judiciary ineptitude to the boom of the Executive arm of government which now dictates for the judiciary and this has made some of the judgements of the judiciary bunkum from pepper sound objurgations. To this end, the former CJN of Nigeria, Justice Mariam AlomaMukhtar voiced out her frustration and lamented during September 23, 2013, at a special session of the Supreme Court of Nigeria to swear in newly SANs. Quoting the former CJN thus “Over the years, funding for the courts has remained a challenge as evidenced by the (deplorable) condition of many courts in Nigeria today. Statistics have shown that funding from the Federal Government has witnessed a steady decline since 2010, from N95 billion in that year to N85 billion in 2011, then N75 billion in 2012 and dropped again in the 2013 budget to N67billion. Indeed with this amount, if the amount allocated to the extra-judicial organisations within the judiciary is deducted, the courts are left with a paltry sum to operate. The simple implication is that our courts are increasingly finding it difficult to effectively perform their day to day constitutional roles. The resultant effect of a slim budget in the Judiciary is that a number of courts in Nigeria today evince decay and neglect of infrastructural amenities, particularly at the state level. In some cases, the court buildings do not possess the required well-equipped library for judges to conduct their research. This may make judges rely on information supplied by lawyers which should not be the case,” the CJN lamented. In addition to the former CJN's averment, the judiciary maintains a budget of 73 billion Naira in 2014 and 2015 and in 2016 the budget decline to 70 billion Naira. To paragraph four above. The judiciary which is supposed to be an independent organ of government in order to allow the dispersal of justice is sometimes hijacked by political bigwigs who are Justice's enemy. We all know what happened in Taraba state, Rivers, Akwa Ibom, and the present Abia state. To this end, this has made some scholars and a reasonable man in the society to cry out to the Supreme court for help for the sustenance our judiciary and prevent this laughable buffoonery that is about to rocket the judiciary. Conclusion 39 To this end, I anchor on section 17(2)(e) which reads ipsisimaverba The state.... " the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained "The judicial office holder and the court should be free from any form of impunity and perverse of justice in order to enhance the smooth running of justice. You can reach me viatobi.jude@yahoo.com or tobi.jude.tj@gmail.com or by messages or calls 07064809512.I am a law student of National Open University of Nigeria (NOUN). 40 RECONSIDERING LEGISLATIVEIMMUNITY UNDER THENIGERIA LAW Tobi Jude African Law Journal Abstract This article talks about what immunity entails and the essence of immunity. The article is not to condemn the constitutional section of section 308 of the constitution but give eyeteeth for an overhaul in the section so that everybody in arms of government can be held liable for corrupt practices. Introduction Before going further into this writing, it is pivotal to discuss and look at some concept of immunity, also what immunity entails and who should be immune? Immunity entails that some certain officials of the Government should be secluded or exempted from civil and criminal activities during their time in office. Simply puts it thus: it means they should not be sued or acts as a representative in court. Immunity as a concept has its root in the ancient feudal structure of England which later became a common law principle. The concept thrived at the time of absolute monarchies in medieval England when it was the norm that sovereignty and governmental powers were personified in the person on the throne of England. During that epoch, it was believed that allowing the king to be sued in his court was a contradiction to the sovereignty of the king except where he endorsed on the petition fiat justicia "let justice be done". This protection also extended to the acts of officials of the crown done during their course of duties to the crown. It is believed that it will be a shame and a disgrace to the crown and to the land. So, the rightful thing is for these people to be immune. It also believed that as at that time, the king could do no wrong because of his status, position, powers and prerogative 41 attached to him. The concept held sway in England until democratic thoughts and institutions caused the concept to lose its moral force because of one of the three bedrocks of the Rule of Law which is "Equality before the Law". It was believed according to a Constitutional scholar that "Democratic thought change the concept of immunity which envisaged during the feudal times". Whatever is the thought, I hold sway to it. In 1947, the Crown was made liable in tort in the same way as private persons through the Crown Proceedings Act, 1947. Despite that, the concept of immunity continues with the English as they conquered new territories, and establishing their own form of English Legal System in those conquered territories. What does immunity really entails in a broader sense? It is pertinent to cite one of the authoritative materials in law in order to establish this. According to the Black's Law Dictionary (8th Edition, P. 765, immunity means "Any exemption from a duty, liability or service of process, ... Such an exemption granted to a public official". Now in analyzing that(supra), you will agree with me that "immunity" prevents the holder that is the public official from any liability both in tort or trust or even theequitable doctrine of restitution. It also means that the person or public official be immune should not be served court processes. Put it this way, he should not even be summoned to any court of law. It is pertinent to say that immunity be granted is not to escape criminal proceedings like those which are mala in se(e.g murder), but it allows certain public officials to escape civil proceedings because of the Limitation Act. The immune like I said supra cannot be sued or be served court processes. If a legal claim is filed against the immune, he or she only needs to ask the court to dismiss the claim on the basis of the immunity, without necessarily filing a defence to the claim. Immunity kills all hindrances and distractions when overseeing an office. To back my aforesaid supra, see the Philippines case between SOLIVEN V MAKASIAR (167 SCRA 393, 1988). The Supreme Court of Philippines held that "the grant of executive immunity is to ensure that the exercise of presidential duties and functions are free from any hindrance or distraction, considering that the office of Chief Executive is a job which, aside from requiring all of the officeholder's time, also demands undivided attention" Immunity can either be Absolute or Qualified. Absolute immunity is the complete exemption from civil liability, usually given to officials when performing their duties, whilst Qualified immunity is immunity from civil liability that is conditioned or limited, for instance by therequirement of 42 good faith or due care. Some immunity is jettisoned upon fulfillment of condition before being granted. This takes us to the next session: Who should be immune/What are the classes of immunity? The classes of immunity are Legislative Immunity: This class of immunity is enjoyed by lawmakers. Under the Nigeria laws, immunity provision has paved theway to some certain laws.See Item 47 of the Second Schedule (Exclusive Legislative List) of the 1999 Constitution of the Federal Republic of Nigeria. Before going further, it is vital to know the list in existence in Nigeria and who can only legislate upon such. Under the 1963 Republican Constitution of Nigeria, it craved way for three Legislative lists, which are: Exclusive, Concurrent and Residual. But since the 1979 Constitution till the present 1999 Constitution of Nigeria, only two legislative lists have been in existence, by removing the Residual list. The Exclusive List allows only the National Assembly to Legislate upon, whilst the Concurrent Legislative List allows both the National Assembly and State Houses of Assembly to legislate upon. Now in reading the aforementioned Schedule(supra) " Powers of the National Assembly, and the privileges and immunities of its members" To that effect, the National Assembly went further and enact into law " Legislative Houses(Powers and Privileges) Act. See Section 3 of the Act. Under that Act(supra) both the Legislative members and the National Assembly premises are immune and court services cannot be served there or to any member. The section not to serve lawmakersWrit within the National Assembly was nullified and render unconstitutional in the case of TonyMomoh V Senate(1981)1 NCLR, 21 by virtue of Section 6 of the Nigeria Constitution. Right now, the only immunity available to Nigeria Legislators is during "Plenary session and committee stage" The next class of immunities is Judicial immunity. Judicial immunity is enjoyed by judges only under the Nigeria law. In Nigeria, only State High Court laws provide immunity for judges. See Section 38 of the High Court Law of Lagos State and Section 88(supra). Also, see the words of Per Mustapher in the case of Dasuki V Muazu(2002) 16 NWLR 43 (pt793)319 at 341. The next class of immunities isDiplomatic immunity. This immunity is only enjoyed by Diplomats. Note: Diplomatic immunity is only an international prescription which came in treaties. See the Vienna Convention on Diplomatic Relations of 1961. In the Vienna Convention (supra) not only the Diplomat is immune, the Embassy where the building is situated is also immune, and one cannot arrest one or harass one there as long one is still at the embassy. But the most interesting thing about this diplomatic immunity is that Nigeria does not recognize the international law prescription onDiplomats despite Domesticating the aforesaid Convention in 2004. See: Diplomatic Immunities and Privileges Act, Cap D9 LFN, 2004. It is also pertinent to say that Diplomatic immunity depends on the Government in office and country the said scenario happens because of not all government/country respect this class of immunity. A good example was the Wikileaks founder, Julian Assange that ran to Equador's Embassy to hide, but Britain still went ahead to capture him in the Embassy. This scenario made Equador government to be angry and reported Britain tothe ICJ. One will begin to ask "if he had run to the France Embassy would the Britain had gone there to capture him? Another class of immunity is Constitutional immunity. This class of immunity is one contained in the constitution. In the United States, Constitutional immunity exists for members of Congress only not even for the Executive. See Article 1 Section 6 of the United States Constitution. The last kind of immunity I will look at is Executive immunity. This class of immunity is enjoyed by the Executive. This class of immunity is anchored on the Nigeria Constitution. See Section 308 of the 1999 Constitution of the Federal Republic of Nigeria as amended 2011.That section(supra) restrict certain citizens for instituting or continuingany Civil or Criminal proceedings against the office of the President,Vice - President, Governor andDeputy Governor during their time inoffice.Now you will find out that immunitywhether be Absolute or Qualified isfor the job, and for disgrace not tobefall the seat of that office and for the country to maintain its integrity asa nation.Immunity erases any form of impurity and crown purity upon the country,but not the individual that is in office. Immunity in Section 308 of theNigeria Constitution only grant such unto the Executive office holder andnot also to certain Legislators like theSenate President, Deputy SenatePresident, Speaker and Deputy Speaker. This makes one begin to wonder if the Senate President or theSpeaker is not also to be protected, and if their offices are not also pivotalto the country " Nigeria".We all saw the saga that is erupting 44 inSaraki's trial (the Senate President).Notwithstanding that above, fightingcorruption is a very good thing inNigeria because Corruption according to some persons have been ourgreatest enemy over the years, but it will also be wise if this corruptionfight extends to the Executive arm ofgovernment during their time inoffice. What Nigeria President, Buharishould have done now, now that he istaking corruption fight to the centrestage, is to first make sure that the NationalAssembly amend section 308 of theNigeria Constitution, so, that criminalproceedings can be instituted againstany Executive office holder.Immunity, like I said, is for the joband not for an individual, and iterases embarrassment that wouldbefall such office.What is good for the president is also good for the senate president, what isgood for the for the governor is also good for the speaker, What is goodfor the vice - president is also goodfor the deputy senate president, andwhat is good for the deputy governoris also good for the deputy speaker. Thank you! From Tobi Jude 07064809512 45 ASSESSMENT OF BAIL IN NIGERIA Ofodum, Chukwunonso Charles African Law Journal Abstract Here we have said much about bail in this paper and we related it to what is happening in Nigeria with Nigerian relevant acts.Bail is a conditional freedom by which a person arrested for an offence is released on condition that he/she reports on the day and place certain wherever his presence is required. We discussed two types of bail in Nigeria, Police bail, and Court bail. Police bail connotes granting a conditional freedom to a person by the police. When a person is arrested and taken to a police station, the officer in charge of the police station may admit the suspect to bail pending further investigation into the matter. The suspect (a person is a suspect until otherwise proven and can also be addressed as accused) is granted bail on the conditions that the suspect must fulfill before he can be allowed to leave the station. We exposed reasons for bail at the police station which takes time for police officers to conclude an investigation and the suspect cannot be detained indefinitely, hence the bail. Any person arrested by the police of committing any offence must be taken to court by the police within 24hrs or 48hrs or such longer period as is considered. We unfolded court bail which is by thecourt which will be done in magistrate court and in thehigh court. The power of thecourt to admit an accused on bail depends on two factors; i) the court before which the accused is being charged ii) the nature of the offence against the accused. We discussed education on Bail in Nigeria. 1. The bail application is an application filed by an individual in detention seeking for liberty on valid legal grounds. It is served on the adverse party, prosecuting or detaining the applicant, who is expected to oppose it or concede to same. Finally, we exposed BAIL IN ACTS and arrest with relevant authorities. We are to opine everything relating to bail with reference to authorities. 46 Introduction We shall discuss bail in Nigeria. Bail is in the State of Laconic Lacuna in Nigeria, Quagmire, Precarious, Predicament, Mayhem and Abnormality in Nigeria today. I am feeling Trepidation for what it will result in the future time. This is what Metamorphose into this paper.And I fully believe that by releasing of this paper that it will eradicate the Quagmires, Precarious, Predicament, Mayhem and abnormality in Nigeria today and other countries who are practicing it. BAIL: connotes to escape from a situation that no longer wants to be involved in; to release somebody on bail; to leave a place, especially quickly.1 My aim of drafting this article is to acquaint/educate the society on their right on bail and to stop the quagmire of bail in Nigeria, in Africa and in the world as a whole.Black’s Law Dictionary 8 Edition defines bail as, a security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time.A bail also connotes to obtain the release of (oneself of another) by providing security for a future appearance in court; to release (a person) after receiving such security.2 This is one of the provisions of the Act that every Nigerian should be grateful for, by the virtue of section 10(1) 3 of the CPA, the police could arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of himself. This particular provision has been greatly often abused by the police who use it as a ground to arrest people indiscriminately and has been deleted by the ACJ Act. Now, police cannot arrest persons in lieu of suspects, where the actual arrest is carried out; a suspect is entitled to notification of cause of Arrest and shall be accorded humane treatment, having regard to the dignity of his person. The Nigeria Police Force has a wide range of powers conferred by laws, such as The Police Act, which have been abused by certain officers of the force thus leading to the general distrust among the public. The powers conferred on the 1 Oxford Advanced Learner’s Dictionary,8 Edition. Black Law Dictionary 8 Edition 3 Section 10 (1), Administration of Justice Act, 2015 2 47 Nigeria Police are vast and wide and a lot of people mistakenly believe they have no rights against the police while they perform their duties. This is, however, not the case. Despite the wide powers conferred upon the police, the average Nigerian does have certain rights the police cannot ignore 1. The Nigeria Police do not have the right to search your premises without a search warrant or an authorization written and signed by a superior police officer of a rank above cadet assistant superintendent of police. You have the right to demand to see and read the warrant or authorization for the search. Denial of this right is a violation of your rights. 2. The police cannot confiscate any properties unrelated to the alleged crime that led to the search of your premises. You have the right to retrieve any property unlawfully confiscated during a search and claim damages against the police. 3. Should the police attempt to arrest you, you have the right to know what offence you are being accused of. There have been, unfortunately, various cases of people being arrested by the police without being informed the reason for their arrest. The police do not have the right to hold you or question you without telling you what offence you are suspected of committing. 4. The police do not have the right to arrest you for an offence committed by another person no matter your relationship with that person. Stories abound of family members of suspected offenders being detained by the police when they are unable to find the suspect. You cannot be held accountable for the crimes committed by another person. 5. No matter the harassment you receive from the police or the offence you are accused of, YOU ARE PRESUMED INNOCENT UNTIL PROVEN GUILTY BY A COURT OF LAW! This right is guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. 6. You cannot be forced to write a statement without seeing your lawyer first. You have a right to have your lawyer present with you if you are arrested for a suspected crime and cannot be denied the right to consult your lawyer before writing any statement. Any statement you are forced to write after being denied this right is inadmissible against you in court. If you are to write a statement with 48 the police, ensure you write the statement yourself or confirm the statement written is accurate before you sign it. When signing your statement, make sure you date it. 7. It is your right not to be forced or make a statement under duress by the police. A statement must be given voluntarily by the person making the statement without physical coercion or threats. It is your fundamental right not to be tortured into making a statement or confession. The 1999 Constitution grants you the right to dignity of thehuman person which prohibits anyone from torturing you. 8. If you are detained by the police for any offence other than one punishable by death, you cannot be held for more than 24 hours before being brought before a court within forty kilometers having jurisdiction or a period of two days in any other case. You have the right to be released on bail with or without sureties. Bail is FREE! It is a promise or undertaking made by an accused person to appear in the court of law or police station or any place required under the undertaking. The amount entered in the undertaking is a guarantee recoverable by the court from the accused or his surety on default of the accused i.e. that is if the accused person absconds. You are not meant to pay the sum before being released. Unfortunately, a lot of Nigerians have fallen victims to corrupt police officers who demand that bail is paid before the accused is allowed to be freed. 9. While in detention, you have the right to see your lawyer, doctor or family members. 10. You have the right to bring a civil action against the police for damages suffered from a violation of your fundamental rights against the police. You also have the right to a public apology from the police if you are unlawfully detained. 4 Bail Bail is a conditional freedom by which a person arrested for an offence is released on condition that he/she reports on the day and place certain wherever his presence is required. 4 Comr. Buzu, on his Facebook Wall 49 There are two types of bail in Nigeria 1. Police bail. 2. Court bail. Police Bail When a person is arrested and taken to a police station, the officer in charge of the police station may admit the suspect to bail pending further investigation into the matter. The suspect (a person is a suspect until otherwise proven and can also be addressed as accused) is granted bail on the conditions that the suspect must fulfill before he can be allowed to leave the station.Usually, a surety is called who can fulfill all the bail conditions. He must sign a bond (a sum of money a person who stands as surety for the accused will forfeit if the accused fails or refuses to appear when so required). Sometimes the bond might be with a surety or without but most times, surety isrequired. Reasons for Bail at the Police Station It takes time for police officers to conclude an investigation and the suspect cannot be detained indefinitely, hence the bail. Any person arrested by the police of committing any offence must be taken to court by the police within 24hrs or 48hrs or such longer period as is considered reasonable. Section 36(5) of the constitution of the federal republic of Nigeria provides that “every person who is charged with a criminal offence shall be presumed to be innocent until he’s proved guilty”. Until proven guilty by a law court, you are entitled to bail. But when a capital offence is alleged, for example, murder, rape, treason, bail shall not be granted to the offender. Court bail We have bail in magistrate court and bail in high court. The power of a court to admit an accused to bail depends on two factors; i) the court before which the accused is being charged ii) the nature of the offence against the accused. A court may admit bailing a person charged before it with the commission of an offence. The need for bail arises because of the interval of time between arraignment of the accused, taking of the evidence, conclusion of thetrial, return of verdict and sentence. Between arraignment and sentence, the accused may be admitted to bail on thecondition set out by the court.Magistrate court cannot grant 50 bail to an accused person charged with a capital offence. Offences like murder, rape, treason etc. These are capital offences that only the high court has the power to grant bail and this also depends on the jurisdiction. Bail is not granted in the northern part of Nigeria for capital offences. At the magistrate court, application for bail is usually done by a counsel (lawyer) orally. It need not be in writing once the accused has pleaded not guilty. Counsel to the accused applies for bail pending the determination of the case.When the accused is not represented by a counsel, the court is obliged to grant bail even when the prosecutor raises anobjection to it. The court has discretion to admit to bail or not taking into consideration the factors governing admission to bail.At the high court, application for bail is always in writing. This is a court of record so every application is in writing. If bail is refused at the magistrate court, or conditions are too onerous (i.e. too difficult), the counsel for the accused can apply to the high court for a review. Terms of bail need not be onerous or excessive if not it will seem as if the person was denied bail by the court. Terms of bail need not difficult to fulfill. If it isdifficult to fulfill, it amounts to no bail and de facto bail has been denied. A suspect refused bail by the police may apply to thehigh court to be admitted to bail and an accused person refused bail by a magistrate may apply to the high court to be admitted to bail. Where the high court refuses an application or affirm onerous terms, the suspect or accused can appealto the court of appeal to be admitted to bail even up to supreme court if the person refused bail is disgruntled or aggrieved with the terms of the bail. Education on Bail in Nigeria 1. The bail application is an application filed by an individual in detention seeking for liberty on valid legal grounds. It is served on the adverse party, prosecuting or detaining the applicant, who is expected to oppose it or concede to same. However, the court can refuse or grant bail, regardless of whether a counteraffidavit is filed in opposition or not. Thus bail is discretionary and the court has the latitude to grant or refuse same. See generally, Abachavs State36, Atikuvs State37. 51 2. There are several factors that influence the grant or refusal of bail. They include the health status of the accused(this is herculean, to get bail on this ground, you must show amongst others that the ailment cannot be treated at the prison facilities, that if you are allowed to remain behind bars, other inmates will contract it, there must be a medical certificate from an expert in that area of medicine backing this claim etc.), the nature of offence charged (capital offences are not easily amenable to bail unlike non-capital offences), absence of an information or charge at the time of application, likelihood of interference with investigation and witnesses, likelihood of jumping bail etc. 3. Bail is granted on certain conditions. The conditions can be severe or mild. A notable feature of this process is the forfeiture of bail bond, thearrest of surety and revocation of bail. If an applicant jumps bail, he forfeits his bail bond (that sum the court mentions as part of the condition for your bail), the surety would be arrested to make him provide you and upon your being arrested, your bail will be revoked (a bail can also be revoked on the happening of any of the factors that influence the court to grant or refuse bail like accused jumping bail, interfering with the prosecution witnesses, a serious likelihood of any of the factors). 4. Bail terms can be varied either by making it severe or mild. An application can be brought (just like in asking the court to revoke a bail granted) to vary the conditions. This happens when either party feels the conditions for bail are too severe or mild. 5. If bail application is granted or refused, a party dissatisfied with the ruling can challenge same on appeal. Criminal appeals are giving priority and heard faster. 6. Granting of bail does not mean the applicant is innocent of the charges or that the charge will fail. Indeed, you can be coming from your house for trials and still be convicted. Conversely, a refusal does not mean you are guilty. You can still attend court from prisons and still be acquitted. 7. Our Constitution is explicit that until a person is convicted, he is presumed innocent, you cannot treat his Fundamental and inalienable rights with disdain! These reflect summarily the general picture on bail. If you relate these principles to 52 Nnamdi Kano and Dasuki, then from a dispassionate perspective, you will fault President Buhari's logic contained in the link below on the subject matter. *First, the Federal Government was served with both bail applications. Did they oppose same? On what grounds? When it was granted, did they approach the court to revoke it or appeal against it? *Buhari from the link sounds like a man who is helpless but it is not true. There are sufficient laws to tackle any contingency arising from those 2 individual's travails. *I love Buhari's zeal to tackle graft but I do not support class defiance to the rule of law, democratic ethos, and institutions! The ripple effects are damning, it is even worse than the isolated cases of graft!!! *This update is STRICTLY to shed light on Buhari's media interview, correct the false impression he created, it is never a departure from all I said before now especially on NnamdiKanu.Daalu Nu.5 We shall discuss everything about thearrest in this subsection. Black’s Law Dictionary defined “arrest” as the taking or keeping of a person in custody by legal authorities, esp. in response to a criminal charge; specify, the apprehension of someone for the purpose of securing the administration of the Law, esp. to bring that person before a court. Arrest by Charles H. white, Criminal procedure S.3.02, at 62(1980) opined on his view: The question of what constitute an arrest is a difficult one. On one space of the spectrum, it seems apparent that detention accompanied by handcuffing, drawn guns or holds to the effect that one is under arrest qualifies as an “arrest” and thus requires probable cause. At the other end, simple questioning on the street will often not arise to the level of an arrest. Somewhere in between lay investigative detention at the station house. 5 www.vanguardngr.com/2015/12/biafra-why-i-cant-releasekanu-buhari/ 53 Bail in Acts We are to opine everything relating to bail with reference to authorities.Black’s Law Dictionary 8 Edition defines bail as, a security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time.A bail also connotes to obtain the release of (oneself of another) by providing security for a future appearance in court; to release (a person) after receiving such security.6 Police Act opined “bail” in S. 27, when a person is arrested without a warrant, he shall be taken before a magistrate who has jurisdiction with respect to the offence with which he is charged or is empowered to deal with him7 under section 484 of the Criminal Procedure Act as soon as practicable after he is taken into custody: Provided that any police officer for the time being in charge of a police station may inquire into the case and: (a) except when the case appears to such officer to be of a serious nature, may release such upon his entering into a recognizance, with or without sureties, for a reasonable amount to appear before a magistrate at the day, time and place mentioned in the recognizance; or8 (b) If it appears to such officer that such inquiry cannot be completed forthwith, may or without sureties for a reasonable amount, appear at such police station and at such times as are named in the recognizance, unless he previously receives notice in writing from the superior police officer in charge of that police station that his attendance is not required, and any such bond may be enforced if it were a recognizance condition for the appearance of the said person before a magistrate. 9 (c) The power of arrest by police officer see S. 24, police Act10, S.10 of Criminal Procedure Act11. See S. 25 of Criminal Procedure Act12 too. (d) Arrests without warrant see S.5 of C.C.A.13 We have exposed everything about thearrest by a police officer. In this sub-heading. 6 Black Law Dictionary 8 Edition S. 27, Police Act 8 S. 27 A, Police Act 9 S. 27 B, Police Act 10 24, police Act, 11 S.10 , criminal procedure Act 12 25 of Criminal Procedure Act 13 S.5 Criminal Code Act 7 54 (e) Arrest without warrant section 10 of C.P.A 14 while Arrest is section 3 of criminal procedure Act15 Criminal procedure Act opined “bail” in S. 1716, 1817, 1918 and 2019 Recommendations We recommend that our force members should desist from doing any job contrary to what has been prescribed by the act. Let all the appropriate authority take note and follow the act and the society be acquainted about the bail and arrest to stop ultra vires work. Conclusions We have exposed bail as a conditional freedom by which a person arrested for an offence is released on condition that he/she reports on the day and place certain wherever his presence is required. We have bailableoffence and the offence that is not bailable but depending on the gravity of the offence. 14 Ibid S 3, criminal procedure Act 16 S17 , criminal procedure Act 17 S18 , criminal procedure Act 18 S19 , criminal procedure Act 19 S20, criminal procedure Act 15 55 EXAMINATION OF NEGLIGENCE IN CRIMINAL LAW Ani, Peter Chidera Faculty of Law, National Open University of Nigeria, Enugu African Law Journal Abstract We have exposed negligence in this paper as the failure to exercise the standard of care that a reasonable reasonably prudent person would have exercised in a situation any conduct that falls below the legal standard established to protect others against unreasonable risk of harm.We equally discussed the introduction which introduced negligence to say is a high degree of recklessness, it’s a state whereby the duty of care is breached and cause damages. We unfolded the main body as failure to exercise the standard of care every reasonable man should have exercise. We even further by discussing damage, damage connotes a monetary value on the harm done following the principle of restitution in integrum (latin word for “restoration to the original condition”) thus, for most purpose connected with the quantification of damages, the degree of capability in the breach of the duty is established, the only requirement is to compensate the victim or claimant.1Finally, we expose introduction, thedefinition of terms, negligence, elements of negligence, types of negligence, damages, theduty of care, conclusion and recommendation in this paper. Introduction Here we shall discuss our topic on this paper as anexamination of negligence in criminal law. Negligence to say is a high degree of recklessness is a state whereby a duty of care is breached and cause damages. 1 www.wikipedia.com 56 In a simple definition of negligence, it connotes and denotes what a reasonable man ought to be done at a reasonable time. It is any omission done by a person which causes damages. In a wide sense, negligence is a conduct that falls below the standards of behavior established by law for the protection of others against thereasonable risk of harm. We shall discuss categories of negligence which are:Criminal Negligence: In criminal law, criminal negligence is a surrogate mensrea(Latin for “guilty mind”) required to constitute a conventional as opposed to strict liability offense. It is not, strictly speaking. A mensrea because it refers to an objective standard of behavior expected of the defendant and does not refer to his mental state. Reasonable person standard This is not a real person but a legal fiction, an objective yardstick against which to measure the culpability of real people. For this purpose, the reasonable person is not a democratic measure. To determine the appropriate level of responsibility, the test of reasonableness has to be directly relevant to the activities being undertaken by the accused. What the ‘average person’ thinks or might do would be irrelevant in a case where a doctor is accused of wrongfully killing a patient during treatment. Hence, there is a baseline of minimum competence that all are expected to aspire to. This reasonable person is appropriately informed, capable, aware of the law, and fair-minded. This standard can never go down, but it can go up to match the training and abilities of the particular accused. In testing whether the particular doctor has misdiagnosed a patient so incompetently that it amounts to a crime, the standard must be that of the reasonable doctor. Those who hold themselves out as having particular skills must match the level of performance expected of people with comparable skills. When engaged in an activity outside their expertise, such individuals revert to the ordinary in certain circumstances, but the ordinary person as an accused will not be at fault if he or she does not do that extraordinary thing so long as whatever that person does or thinks is reasonable in those circumstances. The more contentious debate has surrounded the issue of whether the reasonable person should be subjectively matched to the accused in acase involving children, 57 and persons with physical or mental disability. Young and inexperienced individuals may very well not foresee what an adult might foresee, a blind person cannot see at all, and an autistic person may not relate to the world as a non-autistic person. Cases involving infancy and mental disorders potentially invoke excuses to criminal liability because the accused lack full capacity, and criminal capacity, and criminal system provide an overlapping set of provisions which can either deal with such individuals outside the criminal justice system, or if a criminal trial is unavoidable, mitigate the extent of liability through the sentencing system following conviction. Notwithstanding, those who have ordinary intellectual capacities are expected to act reasonably given their physical condition. Thus, a court would ask whether a blind reasonable person would have set out to do what the particular bind defendant did. People with physical disabilities rightly wish to be active members of the community but, if certain types of activity would endanger others, appropriate precautions must be put in place to ensure that the risks are reasonable. Gross negligence: This is the “lack of slight diligence or care” or “a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party, who may typically cover exemplary damages”. Negligence is the opposite of diligence or being careful. We shall further discuss intention, recklessness, statutory consideration, knowledge, malice, forms of knowledge, foresight, theduty of care, thestandard of care, and legal implication of negligence. Definition of Terms Negligence: The failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm2. Recklessness: Conduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk. Recklessness involves a greater degree of fault than intentional wrongdoing3. 2 3 . Blacks law Dictionary 9th Edition Ibid 58 Status Consideration: A person legal condition whether personal or proprietary, the sum total of a person’s legal rights, duties, liabilities and other legal relations4. Intention: The willingness to bring about something planned or foreseen, the state of being set to do something5. Consideration: Something such as an act, forbearance or a return promise bargained for and received by a promissory from a promise6. The duty of Care: This involves adherence to a standard of reasonable care while performing any acts that could foreseeably harm others, see Hedley Byme& Co Ltd v Heller& partners. Ltd7. Knowledge: An awareness or understanding of a fact or circumstance. A state of mind in which a person has no substantial doubt about the existence of a fact8. Forms of knowledge: Knowledge may be actual, imputed or constructive9. Foresight: For a man may foresee the possible or even probable consequences of his/her conduct and yet not desire them to occur10. Malice: The intent without justification or excuse to commit a wrongful act. Reckless disregard of the law of a person’s legal rights 11. The standard of Care: This is a medical or psychological treatment guideline and can be general or specific12. The case of Donoghue v Stevenson 13 (1932) illustrates the law of negligence, laying the foundations of the fault principle around the commonwealth. The pursuer may Donoghue, drank ginger beer given to her by a boyfriend, who bought it from a shop. The beer was supplied by a manufacturer, a certain David Stevenson in Scotland. While drinking the drink, Donoghue discovered the 4 Ibid www.wikipedia.com 6 Ibid 7 Ibid 8 Ibid 9 Ibid 10 Ibid 11 Ibid 12 African law journal, First Edition 13 Donoghue v Stevenson in wikipedia 5 59 remains of an allegedly decomposed snail. She then sued Stevenson. Though there was no relationship of contract as the friend had made the payment. As there was no contract, the doctrine of privities prevented a direct action against Stevenson. In his ruling, justice lord Macmillan define a new category of delict (the scots law nearest equivalent of tort). (which is really not based on negligence but on what is now known as the “implied warranty of fitness of a product” in a completely different category of tort. “products liability”) because it was analogous to previous cases about people hurting each other. Negligence:-In negligence, anyone who fails to exercise the standard of care of every reasonable man should have exercised is guilty of negligence. Negligence as the failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. 14 Types of Negligence When a lawsuit is brought for damages caused by an accident the judge or jury must decide who caused the accident, since more than one person may have been negligent, including the person who is bringing the lawsuit. Once the amount or percentage of negligence has been determined for each person, damages are awarded as determined by what system of fault the state follows. There are four predominant systems used throughout the United States, “contributory negligence”, “pure comparative fault”, and “modified comparative fault”, which has two different modification options. There are also a handful of states that have their own unique systems of determining damage awards. a. Contributory Negligence Contributory negligence bars any recovery by the person bringing the lawsuit if they were responsible for the accident in any way. Thus, if the judge or jury decides the person who is bringing the lawsuit is even one (1) percent at fault for causing his own injuries, the person bringing the lawsuit may not recover any damages. 14 African law journal 60 b. Pure Comparative Negligence In a pure comparative negligence system, the judge or jury decides how much fault should be allocated to each person responsible for an accident, and then apportions a number of damages accordingly. For example, if a person is found to be 40 percent at fault for causing his own injuries, then the other party or parties responsible will only have to pay 60 percent of the plaintiff’s damages. Modified Comparative Fault There are also states that use a modified comparative fault system. Just like a pure comparative negligence system, a judge or jury decides how much fault should be allocated theamount of damages accordingly. But unlike a pure comparative negligence system, a limit on the percentage of fault of the person bringing the lawsuit is used. There are two different limits used: the 50 percent fault rule, and the 51 percent fault rule. i. Percent Fault Rule:If the 50 percent fault rule is used, the person bringing the lawsuit cannot recover if he is 50percent or more at fault, but if he is 49percent or less at fault, he can recover, though his recovery is reduced by his degree of fault. Thus if a person is found to be 50percent at fault, he recovers nothing, but if a person is found to be 49percent at fault he can recover 51percent of his damages. ii. 51 percent fault rule: If the 51percent fault rule is used, the person bringing the lawsuit cannot recover if he is 51percent or more at fault. This follows the principle that a plaintiff who is more negligent that a defendant should not be able to recover negligence than a defendant should not be able to recover anything. Here, if the person bringing the lawsuit is 50percent at fault, he can recover 50percent of his damages, but he cannot recover anything if he is found to be 51percent or more at fault. 15 Elements of Negligence Claims Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes (see Element (criminal law)). An important concept related to elements is that if a plaintiff (the injured party) fails to prove any one element of his claim, he loses on the entire tort claim. For example, assume that a 15 wikipedia 61 particular tort has five elements. Each element must be proven. If the plaintiff proves only four of the five elements, the plaintiff has not succeeded in making out his claim. Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence care are aduty, breach, causation, and damages. Negligence can be conceived of as having just three elements – conduct, causation, and damages. More often, it is said to have four (duty, breach, causation and punitive damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking. “The broad agreement on the conceptual model”, writes professor Robertson of the university of Texas at Austin, “entails arecognition that the five elements are best defined with care and kept separate”. But in practice, he goes on to warn, “several varieties of confusion or conceptual mistakes have sometimes occurred”. Elements of Negligence Duty of care Breach of duty Factual causation (direct cause) Legal causation or remoteness Harm Damages16 Conclusion We have done justice to abstract, introduction, definition of terms, negligence, elements of negligence, types of negligence, damages and duty of care. Recommendation We recommend that Nigeria should take judicial notice of negligence and practice it. Secondly, let all the states and local governments in Nigeria enact the law on negligence that will guide us for proper practicalization of negligence. 16 wikipedia 62 THE IMPORTANCE AND NEED TO SUSTAIN THE SACROSANCT NATURE OF JUDICIARY IN NIGERIA ObidinmaEbuka Williams Faculty of Law, AfeBabalola University Ado-Ekiti African Law Journal Introduction According to Dr. AkintolaAguda, ‘It is beyond dispute that to sustain a democracy in the modern world, an independent, impartial and upright judiciary is necessary. I do concur with Dr. AkintolaAguda and in addition, I believe that it is generally felt that in the world of today, to sustain a true democracy an independent, impartial and upright judiciary is a necessity. Here in Nigeria, the judiciary has been able to prove to Nigerians that it is the last resort to translating the Nigerian dream to reality. Though there are situations within this period when the judiciary is acall to aquestion by some decisions of the high court, such are met with sanction by the national judicial council. This situation was summarized by HON. JUSTICE M.L UWAIS R.T.D, G.C.O.N, at the All Nigerian judges conference in 2001. The judiciary as sometimes now been concerned about the public image, the independence of the judiciary carries with it the responsibilities for every judiciary officers to perform his duty with probity. The slightest suspicion of corruption of judges tarnishes the reputation of our judicial officers and brings the entire institution into disrepute. Notwithstanding, from the above one, can come to say that the nation judiciary today has laid a solid foundation for a better tomorrow. Independence of the judiciary has been described as “the bedrock of theadministration of justice… and it carries with it an absolute independence of everymember of the bench”. 63 Definition of terms According to Wikipedia, judicial independence is the concept that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests..." judicial independence is vital to the sustenance of democracy in our modern world. More so, the notion of impartiality of the judiciary is an essential aspect of the right to a fair trial. It means that all the judges involved must act objectively and base their decisions on the relevant facts and applicable law, without personal bias or preconceived ideas on the matter and persons involved and without promoting the interests of any one of the parties. The terms above are usually interwoven but I would like to discuss them separately using Nigeria and international bodies. The Notion of Impartiality of the Judiciary It is a fact known to all and sundry that it is very vital that the judiciary is impartial and unbiased. this is because they deal with very vital matters which can make or mar the nation and the lives of the innocent citizens. As previously noted, the concept of impartiality is closely linked to that of independence and sometimes the two notions are considered together. The requirement of impartiality is contained in article 14(1) of the International Covenant on Civil and Political Rights, article 7(1) of the African Charter on Human and Peoples’ Rights, article 8(1) of the American Convention on Human Rights and article 6(1) of the European Convention on Human Rights. Principle 2 of the Basic Principles also specifies that“The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” In the case of Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in UN doc. GAOR, A/48/40 (vol. II), p. 120, para. 7.2., the Human Rights Committee explained that “the impartiality of the court and the publicity of 64 proceedings are important aspects of the right to a fair trial” within the meaning of article 14(1)of the Covenant, adding that the notion of impartiality “implies that judges must not harbour preconceptions about the matter put before them, and that As to the requirement of impartiality in article 6(1) of the European Convention on Human Rights, the European Court of Human Rights has consistently ruled that it has two requirements, namely; • subjective and; • objective requirement. In the first place, “the tribunal must be subjectively impartial”, in that “no member of the tribunal should hold any personal prejudice or bias”, and this personal “impartiality is presumed unless there is evidence to the contrary”. Secondly, “the tribunal must also be impartial from an objective viewpoint”, in that “it must offer guarantees to exclude any legitimate doubt in this respect”. With regard to the objective test, the Court added that it must be determined whether there are ascertainable facts, which may raise doubts as to the impartiality of the judges, and that, in this respect, “even appearances may be of a certain importance”, because “what is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings”. In a country like Nigeria, the provisions of the Rules of Professional Conduct for Legal Practitioners 2007 should be followed legal practitioners in order achieve an upright judiciary. They must not act in ways that promote the interests of one of the parties”. Why must the judiciary be independent?And theindependence of what or whom? A renowned jurist in relating an independent judiciary with the rule of law gave three proposition when he said: • “That every person whose interest will be alerted by a judicial decision will have a right to a meaningful day in court; 65 • That judicial officer will be independence in the full sense, that is free from external direction from external direction from political or administration superiors in the disposition of individual cases and inwardly free from the influence of personal gain and partisan or popular bias; and • That day to day decisions of judicial officers will be reasoned and rational justified in theterm that takes full account of both general principles and the demands of the particular situation”. The above quotations sum the overall significance and that pride of place the judiciary occupies in any society. It is difficult to conceive of the possibility of the existence of a just administration of law, a most desirable necessity of a happy and contented society – except by judicial officers who are independent in the sense set above. It is a sacred duty of the judiciary to safeguard the personal liberty of the citizen against possible abuse of the executive power. A writer has once said:“Because the individual citizen is dwarfed by the state and because the legislature may be relatively subservient to the executive, the judiciary is the most immediately available recourse against the abuse of executive power”. It is for this reason that the judiciary has to be made independence of the executive and the legislature as well. It is in order to avoid the enthronement of totalitarianism and dictatorship in Nigeria that the constitution has attempted a separation of powers amongst the three major arms of government i.e. legislative, executive and judiciary. The legislative powers are vested in the National Assembly (for the federal government) and the states House of Assembly (for the states) section 4(1) and 4(6) CFRNrespectively. The executive powers of the federation are vested in the president. He may exercise these powers himself directly or through the vice – president, or through ministers appointed by himself, or through other officers in the public service(s) of the federation, while the executive powers of the state are vested in the governor who may like the president exercise such powers himself directly or through the deputy governor, or through commissioners appointed by himself, or through other officers in the public service of the state. These are contained in sections 5(1) and (2)(a). Also, the judicial powers of the state are vested in the courts enumerated in the constitution or courts established by the legislature under powers granted by the constitution as stated in 66 sections 6 of the CFRN 1999. It is all these courts that will generally be referred to as “the judiciary” in this essay. Independence of the Judiciary Section 6(1) of the 1999 Constitution of Nigeriavests the judicial arm of government with judicial powers. The question to ask is: is mere vesting of judicial power in the judiciary only and to no other body by virtue of section (6) of the constitution severe as a guarantee of its independence? Certain other matters are indeed of utmost importance if the independence of the judiciary is to be assured. these matters include; Appointment of the Judges The appointment of judges requires a high standard of discipline, prestige, and dignity. It also requires high academic and professional qualifications and experience. Consequently, judges unlike members of the arms of government; the legislature and the executive require a certain minimum educational and professional qualification experience. Judges should also be men and women of probity, integrity, and impartiality. Those professional experience and character qualification and experience and character qualification requirements determine their appointment. Section 153(i)(e)of the constitution establishes or creates the federal judicial service commission. While section 197(i)(c)of the same constitution creates for each state the state judicial service commission. With the composition of the federal and state judicial respectively, will a person be surprised at the news that the chief executives (be he the president or governor) normally got their nominees appointed? These judicial service commissions, by virtue of the constitutional provisions, are to be insulated from all forms of external/interference in the performance of their duties. The independence of the judiciary in the performance of its actions and numerous tasks. For instance, the governor is not expected to merely consult the judicial service commission but must accept and act upon the recommendation of that commission in respect of the judicial appointment coming within the commission. Failure to comply with this provision of the constitution may constitute an 67 offencefor which the governor can be removed from office or impeached. But the sad thing is that in most cases the governor is merely carrying out the wishes of his political party which controls a comfortable majority in the state house of assembly. From the foregoing examination, can it be reasonably argued that the Nigerian judiciary under the 1999 constitution enjoys independence? Or does their provision so far examined guarantee proper separation of powers? left to me, I would say that there has been an overlap which negates the principle of judicial independence. For example, chief justice, president court of Appeal, president federal court, state chief judges, Grand khadis, president of customary court of Appeal are appointed by the chief executive (whether as president or governor), supported by simple majority of legislature (senator or houses of assembly) or such appointments made on advice and recommendation of judicial service commissions (federal and state) by the chief executive. This state of affairs, it is submitted, does this affect the independence and free – will the judiciary is expected to show in the discharge of judicial duties and the necessary guarantee of security to enable judges to stay upright during their tenure on the bench. It is also prone to flirting and lobbying for such appointments. Tenure of Office of Judicial Officers It is generally believed that the more secure the tenure of office of a judicial officer is, the more he feels free to dispense justice without fear or favor. Section 291(i) of 1999 constitution says that:-“A judicial officer appointed to the Supreme Court or the courts of Appeal may retire when he attains the age of sixty – five years and he shall cease to hold office when he attains the age of seventy years”. “A judicial officer appointed to any other court, other than those specialized in subsection (i) of this section may be relieved when he attains the age of sixty years and he shall cause to hold office when he attains the age of sixty – five years”. Subsection (3)of the same section goes on to say that a judicial officer shall be entitled to apension for life at a rate equivalent to his last annual salary in addition to any other retirement benefit to which he may be entitled. The retirement benefits here mean no more than any gratuity, transportation to his home etc as the judicial 68 officer may be entitled to under the relevant pension legislation. Be it noted also that this ‘salary for life’ is payable only if the judicial officer has held a judicial office for a period of not less than15 years. This constitution provision fixing retirement age at 70 years for Supreme and court of Appeal judges and 65 years for other judges should be seen as a guarantee of their offices until the attainment of the special year. But what of some judicial officers who are retired prematurely or those who lost interest in the job and want to leave before the retirement age. This position is aggravated by another provision of the constitution of the effort that “any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria”. This is another area that attracts comments. Although, the provision might be justified if it is to guarantee ascendancy to the post(s) by the aspiring young officials but they would equally not like to go on retirement when their wealth of experience would be at best. More so, apart from knowledge, experience and maturity associated with the older ones, the purer their judgments are likely to be because their desire for temporal benefits diminishes with age. Remuneration of Judicial Officers and Financial Independence It is common to hear that “the judiciary is the last hopeof the common man, the last line of defense in the fight between right and might”. This statement can only be meaningful if we all fight for a free independent, learned, honest and well-paid judiciary. Section 84(4)provides that salaries and allowances shall be a charge upon the Consolidated Revenue Fund of the Federation. Worthy of note is sub – section (3) of the same section which says that the “salaries payable to the holders of the said officers and their conditions of service, other than theallowance, shall not be altered to their disadvantage after their appointment”. This is submitted is indeed a welcome development, as it will in no small measure reduce or help the judiciary in its reliance on amonthly allocation of fund from the 69 executive which at times might be delayed or not forthcoming at all. It is then submitted that the judiciary, should be self – accounting with sufficient funds to determine the quality of personnel to employ and to maintain its human and material resources. The significance of this can be overemphasized. It will certainly remove the sense of financial insecurity that often bedevils the administration of justice in a developing society like ours. Similarly, in Lankami v. Attorney – General of Western State and orsthe Supreme Court restated the undisputable fact of its power to interpret the constitution and in resolving adispute between individuals and the government. In this case, the western region of Nigeria’sedict No. 5 of 1967known as the public officers and other persons (investigation of assets) edict, 1967, empowered the government to seize properties of ex – politicians which the government felt were illegally acquired. Lakanmi’s properties including some buildings in Ibadan were seized and confiscated. Plaintiff’s action against the military government both at the high court and the western court of Appeal, Ibadan were dismissed. On further appeal to the Supreme Court, it was unanimously held that the edict was null and void and of no effect. It says:- “It is to define the powers of the legislature that constitutions are written and the purpose is that such powers that are left with the legislature be limited, and that the reminder be vested in the court”. Conclusion In my own point of view, I believe that for an impartial and upright judiciary to sustain democracy in our modern world, all hands must be put on deck to ensure that an ideal standard of judicial independence and impartiality is set up and followed to the last. Moreover, the systems that have been put in place should be followed. As a compliment, HON. OPUTA in his usual elucidatory approach ventilated further on the need for effective performance of the judiciary to act as the guardian of the constitution. He said:-“The Nigerian lawyer should be in the forefront of the necessary crusade to elevate the Nigerian judiciary to its proud and proper place. Failing that, the judiciary will sink to the lowest ebb of humiliation with disastrous social, economic and political consequences…depending in the prevalence of peace and security, will be compromised”. 70 The above is truly an urge to every one of us and all hands must be on deck to live up to expectation. 71 JUDICIAL INDEPENDENCE: BEDROCK FOR SUSTAINABLE DEMOCRACY IN AFRICA Oluwatosin S.A. Ogunlana Law Student, AfeBabalola University Ado-Ekiti, tosinsongz@gmail.com +2348163545045; +2349056199005 Abstract Democracy in modern governance is a major catalyst for sustainable development in most African nations. Dr. AkinolaAguda posited that “it is beyond dispute that to sustain a democracy in the modern word, an independent, impartial and upright judiciary is a necessity.”Judiciary is an arm of government saddled with responsibility of exercising judicial power vested in the courts which stand as the temple of justice.The pivotal question to be answered in this paper is whether courts can function in its capacity as the temple of justice when its independence, impartiality, and uprightness has been or is being or likely to be encroached upon by persons, government or authority in determination of any question as to the civil rights and obligations? It is within the purview of this paper using Nigerian judiciary as a case study to examine this as it will substantiate the position that independence, impartiality and uprightness of the judiciary are the inextricable trios upon which the judiciary stands. As such, an encroachment on any leaves us with a lame judiciary and “perverted justice” thereby making a mirage of sustainable democracy in Africa. This paper will also examine role independent, impartial and upright judiciary in the sustenance of democracy using Nigerian judiciary as a case study. Introduction The fons et origo of the Nigerian laws has provided by virtue of Section 17 (1) (e) that the independence, impartiality and integrity of courts of law and easy accessibility shall be secured and maintained.It suffices therefore to conclude that for the judiciary attain the apogee of justice; its independence should be 72 constitutional but relatively unfettered. It is rather unfortunate to note that this provision as provided under the Fundamental Objectives and Directive Principles of State Policy, whose provisions by virtue of section 6 (6) (c) of the constitution is made non-justiciable. It has been said that it“is therefore made manifest that the constitution itself after providing for the independence of the judicial arm renders suchindependence unenforceable. This consequently poses a challenge to the judicial arm as to whether it is truly independent1.” I quite disagree with the above position that “the constitution itself after providing for the independence of the judicial arm renders such independence unenforceable.” Not because the writer wrongly asserted following constitutional provisions but that he wrongly concluded not considering other sections of the constitution. Following the provisions of Section 36 (1) of 1999 constitution, the constitution expressly provides that “in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”It suffices to conclude that the independence and impartiality of the judiciary has been guaranteed as a fundamental human right under Chapter IV of the 1999 Constitution by the foregoing section and can be enforced by seeking redress in a High Court when breached or is likely of being breached as provided in Section 46. (1) of 1999 Constitution. However it is noteworthy that the judicial set-up does not ensure the requisite independence for the judiciary to perform its functions impartially. Bringing to fore the process of appointment of judges, dismissal of judges, funding and the general conditions of service of judicial officers and personnel which are constitutionally left in the hands of the executive. This can be authenticated by 1 GbolagunteOladotun, “Independence of Judiciary,” 2014, Online Journal Retrieved from <https://davidsongbolagunte.wordpress.com/2014/07/03/independence-of-the-nigerian-judiciary/>Accessed on 19th of April 2016 73 taking a perusal into the National Judicial Council which is the body charged with the task of recommendation of Justices and Judges by virtue ofSections 231 (1), 238 (1), 250 (1) (2), 254B (1) (2), 256 (1) (2), 261 (1) (2), 266 (1) (2), 271 (1) (2), 276 (1) (2), 281 (1) (2) of the 1999 Constitution to realize that such a body is actually a Federal Executive Body pursuant to Section 153 (1) (i). It is therefore discovered that the Judiciary of the Federal Republic of Nigeria is recommended by a Federal Executive Body, ratified by the Legislative and appointed by the Executive. With this and other reasons which shall be dutifully expounded subsequently I subscribe to the earlier assertion that there are challenges of the judicial arm under a democratic system as to whether it is truly independent. Similarly the bulging question still remains whether the Nigerian Judiciary truly independent?If so to what extent? This paper will make obvious whether the judicial independence in Africa is s mirage or a reality using Nigeria as s case study. The Applied Doctrine of Separation of Power in Nigeria Traditionally the doctrine of the separation of powers has been perceived as a safeguard of liberty within a society operating under the rule of law. The doctrine postulates that the three arms of government, being the executive 2, legislative3 and judicial arms4, should be separate and that their respective functions and powers should be mutually exclusive. However, if there was a pure separation of governmental power, "effective government would be impossible". The import of separation of power was brought under focus in AbdulahiMaccido Ahmed v. Sokoto State House of Assembly and Anor 5Where the Court of Appeal enumerated three implications of the doctrine of Separation of powers to include:  That the same person should not be part of more than one of the three arms of government.  That one arm should not dominate or control another arm of government. This is primarily important in the relationship between the executive and the judiciary 2 Section 4 of 1999 Constitution of Federal Republic of Nigeria 2011(as amended) Section 5 of 1999 Constitution of Federal Republic of Nigeria 2011 (as amended) 4 Section 6 of 1999 Constitution of Federal Republic of Nigeria 2011 (as amended) 5 [2002] 44 WRN 52 3 74  That one arm should not attempt to exercise the function of the other. For example a president however powerful ought not make laws or indeed act except in execution of laws made by the legislative nor should a legislature make interpretative legislations. If it is doubt it should head for the court to seek interpretation. This gave rise to the idea of checks and balances on each other. As a result, no one branch can gain absolute power or abuse the power given to them like in despotic military regimes. But it must be noted that in Nigeria, the three branches are not completely sealed off from each other. There is no complete and total separation of powers. The contravention of the above principles result in an encroachment on judicial independence however there cannot be absolute independence for the judiciary so as to allow for checks. The Role of an Independent, Impartial and Upright Judiciary in The Sustenance of Democracy It is beyond dispute that to sustain a democracy in the modern word, an independent, impartial and upright judiciary is a necessity- Dr. AkinolaAgudaDemocracy is one of the nebulous concepts that notoriously defy a single and most acceptable definition from an individual or a particular group of scholar(s). Although many definitions of democracy abound in theory and practice, the one universally accepted is that posited by Abraham Lincoln, which says that democracy is the “government of the people, by the people, and for the people”.The definition of ‘Democracy’ could be an exhaustive and very endless exercise. The mere mention of the word, however, readily conjures up in our minds and suggests other intimately related concepts such as rule of law, order, peace, security etc. All these, no doubt, constitute basic elements of democracy. Essentially, democracy exists to ensure justice, equality of rights, good governance; to promote social welfare, maintain social equilibrium and provide channels of and for cooperation amongst the different arms of government. Democracy also aims at safeguarding individual freedom by protecting the ordinary citizen from abuse of power, arbitrariness, oppression and repression. Democracy assumes equality under the law and that no one is wholly unrestrained. 75 It envisages that right should have a pre-eminence over might. Every civilized society strives and aspires to attain these sublime objectives. The judiciary, unquestionably, remains the forum to bring about and realize them. There are certain tenets enshrined in our constitution upon which any democracy can be nurtured and sustained. These include:sovereignty of the people, majority rule and minority rights, the rule of law and good governance, respect for civil and political rights, mass literacy, economic prosperity, social development, free press, and an independent judiciary sustainable democracy is attainable when the conditions listed above are prevalent in the society. 6 This brings to fore that to sustain modern democracy an Independent, impartial and upright Judiciary is needed to enforce and protect the constitution.I must assert at this point that no democracy can be sustained without an independent, impartial and upright judiciary. What is judiciary as a working concept? One may simple call it judicial powers, but what then do we know as judicial powers and why is it important for it to be independent impartial and upright in the sustenance of democracy. All of that will be discussed in my subsequent paragraphs. The judiciary has often times been described as the third arm of government.In every civilized country, Courts are the last hope of the common man 7 . The judiciary is a term applied to judges collectively8. The word “Judiciary” has been defined as the court system of a country9. It is the third arm of government which protects and ensures democracy as well as interprets the law and administers justice. In Nigeria, the judiciary is playing an important role by virtue of Section 6 (1)10. The Judicial branch is by express provisions of the Constitution (Section 6(6) of the 1999) the guardian of the Constitution itself and of the rights of the citizens of this country. In essence, performs onerous duty of giving life and meaning to 6 IfeanyiOkowa: “Towards sustainable democracy in Nigeria: The role of political parties”, 24 September 2015,Online Journal, Retrieved @ http://guardian.ng/features/towards-sustainable-democracy-in-nigeria-therole-of-political-parties/accessed 20th April, 2016. 7 Constitutional Law And Procedure in Nigeria by A. ToriolaOyewo Dictionary of Law Fifth Edition by LB CURZON 9 The Evolution Of Ideal Nigerian Judiciary In The New Millennium by Yusuf Ali, San 10 1999 Constitution of the Federal Republic of Nigeria (as amended) 8 76 basic democratic values.Hon. Justice M.L. Uwais GCON expressed at the All Nigerian Judges Conference in Abuja in November 1999 that: “Today, democracy is restored and fresh hopes are rekindled in the people as the rule of law replaces the rule of man. The re-establishment of democratic governance is a testimony and re-statement of the commitment of the people to the rule of law and respect for human rights, which the founding fathers of our country cherished11.” One principal thing to be done in the sustenance of Democracy is Enforcing and Protecting the Constitution. It is often stated that it is part of the “Common Law Tradition” to place the judge at the heart of legal cosmos and to emphasize the central and crucial role of the judiciary in enforcing Constitutionalism and the Rule of Law. In view of Hon. Justice UmaruEri, underpinning of the doctrine of judicial review, the Judiciary under a democracy is expected to function with the Legislature and the Executive to ensure the Rule of Law. Without this role of upholding the rule of law, there cannot be peace, unity and good Government.In a democratic state, social engineering, legislation and constitutional interpretation are vital ingredients to chart political, economic and social growth. Even though the role of judiciary in the success of democratic Government cannot be dwarfed from the primacy place the Executive and the legislature occupy, the Judiciary has a primacy of role and powers with the other two Arms. It needs be added that the judiciary is best advantaged by the elaborate provision of the constitution to uphold the enforceability of the democratic principles that stand as the bulwark to the right and freedom of persons and their property. The aim of Government under the Constitution is the welfare of all Nigerians by changing their situation for the better. The Judiciary, as the third arm of Government has a duty and a commitment to be partners with the other Arms of Government in this process of Change. The Judiciary is therefore expected to do and infact can do this by making law an instrument of change, rather than regarding law as an end itself- a means to an end- that end being a good and just society. The role of the judiciary cannot in the circumstances be over emphasized when one remembers the case of Chief ObafemiAwolowo V. 11 Quoted in Hon. Justice Umaru E. “The Role of The Judiciary in Sustaining Democracy in Nigeria”in “Judicial Integrity, Independence and Reforms, Essays in Honour of Hon. Justice M.L. Uwais, GCON, CJN”.2006, Published by Snaap Press Ltd. 77 AlhajiShehuShgari12that no doubt highlighted the paramount role of the judiciary under our constitution. It was the Supreme Court of Nigeria which put the stamp of legality and legitimacy on the then President after the people had exercised their franchise. The issue involved in that case transcended the confines of all mathematical sciences. There were social issues and the judiciary, as the guardian of the society, had a responsibility to ensure comprehensive justice as well as give substantive meaning in the application of law to the needs of the Nation. Enforcement of judicial decisions will put an end to the reign of despotic,sit-tight head of state and government which will then reduce the possibility of military coup d’état which is a major threat to constitutional democracy in Africa. Our Constitution speaks of freedom, equality and justice but a clash may occur between constitutional ideals and political as well as social realities; hence the need of an independent, impartial and upright umpire to settle the ensuing dispute. It is the Judiciary, which play that important role. It therefore follows that keeping the Government faithful to the goals of democracy and the production of universal benefits for its entire populace become the most demanding constitutional role imposed by our constitution on the Judiciary. Hon. Justice C.A. Oputa, JSC. (as he then was) summarized everything in a lecture on “The Place Of The Judiciary In The Constitution”delivered when he was the Chief Judge of Imo State. He said thus,“It is only the Judiciary which can in the final resort and as the last resort translate the dreams of Nigeria, dreams inscribed boldly in her constitution, her dreams, for National Unity, for domestic tranquility, for individual freedom and personal happiness through the full release of our citizens from prejudice and oppression, through the full utilization of all her human and natural resources and potentials, towards the creation of a great Nation characterized not by power alone but by respect for the human dignity and by the assurance of equal justice under the law for all. Just as it was the Supreme Court of the United States that translated and interpreted millions of coloured and black Americans into second class citizens for over half a century, so our own Supreme Court can translate into actuality the noble ideals expressed in our fundamental law and give flesh and blood, infact life, to abstract concepts like freedom, liberty, equality and give justice, clearly articulated and often reiterated in our constitution13.” 12 13 (1979) 6-9 SC. 51 Quote extracted from Hon. Justice Umaru E. op. cit. 78 Our Constitution is not only written but also comprehensive. This Constitution committed all the judicial powers of the State exclusively to the judicature. In a democratic setting the judges are therefore entrusted with the guardianship of specially entrenched Fundamental Human Rights and Freedom, the interpretation of the constitution, and the power, where necessary to strike down as unconstitutional actions of the Executive and the enactments of the Legislature. In Mohammed Onusagba and Others v. Kogi State House of Assembly and Others, 14 The Unconstitutional amendment to the Local Government (Amendment Law) of Kogi State 2002 was struck down as unconstitutional and barred the Executive from assenting to the law.What this means is that in a democratic setting, for rationality, morality, civility, humanity and ultimate constitutionality of law, it is the judiciary, albeit the court that has final powers.However, it is trite to say, that no constitution in itself and by itself alone provide all the answers to the multifarious problems of a country and hence the importance of interpretation and the ability to discover the spirit of the Constitution. It is that spirit that should inspire the judiciary which has the sacred duty to ensure that the constitution work effectively. Every member of the judiciary in making the judicial oath deposes to uphold and defend the constitution as the supreme law of the country. In carrying out this role, the first issue that is likely to come up before the courts is interpretation of the provisions of the Constitution. The interpretative role of the judiciary is of great importance and in stressing this,the approach to interpretation should be as expounded by UdoUdoma JSC. Of blessed memory in: NafiuRabiu v. Kano State 15 Where His-Lordship said:“My Lords, it is my view that the approach to Constitutional interpretation should be, and so it has been, one of liberalism” I therefore, wish to conclude this essay with a quoted passage from same Hon. Justice C.A. Oputa, JSC (as he then was) which in my respective view summarizes the role of the Judiciary in any democratic society. He said: “The Judiciary is the mighty fortress against tyrannous and oppressive laws. It is the judiciary that has to ensure that the State is subject to the law; that the Government respects the right of the individual under the law; the Courts adjudicate between the citizens and the State. The Courts therefore have to ensure thatthe administration conforms withthe 14 15 2002, NNLR 690 1980 8/11 SC 149 79 law; they have also to adjudicate upon the legality of the exercise of Executive power. The importance of the judiciary cannot therefore be overestimated. In our Country it has always been under estimated probably due to lack of understanding of its role. It is not an over statement to assert that an independent Judiciary is the greatest asset of a free people. The Judiciary by the nature of its function and role is the citizens’ last line of defence in a free society, that is, the line separating constitutionalism from totalitarianism.”This has given credence to the earlier assertion Dr. AkinolaAguda that “it is beyond dispute that to sustain a democracy in the modern word, an independent, impartial and upright judiciary is a necessity.” The Encroachment on Judicial Independence An independent, impartial and upright judiciary is indispensable in the sustenance of a good, transparent, accountable and democratic government. This is a necessity following the provision which charges the judiciary with the function and responsibility to determine all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating to the determination to any question as to the civil rights and obligations of any person16. Similarly the court or tribunal is to be “constituted in such manner as to secure its independence and impartiality17.” Simplistically judicial independence can be defined as the relative freedom of the judicial arm from the other two arms (Executive and Legislature) of government. The purpose of this is to ensure the entrenchment of democracy. Independence secures the judicial institution from whimsical manipulation by the Executive and the Legislature. Consequently it fully embraces the doctrine of the separation of powers. Other arms of governance are accountable to the people, but the Judiciary – and the Judiciary alone – is a sacred arm accountable to a higher value and to standards of judicial rectitude and sanctity 18 .Independence of the judiciary is a cornerstone of the protection of human rights under the rule of law. It is on this basis that the United Nations laid down the basic principles (grundnorms) on the 16 Section36(6)(a)(b) 1999 Constitution of the Federal Republic of Nigeria Section36(1) of 1999 Constitution of Federal Republic of Nigeria (as amended) 18 An Independent Judicial System by Felix Frankfurter 17 80 independence of the judiciary19. That is, before it can be held that the judiciary is truly independent, these principles have to be in place. These principles are;  The independence of the Judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the Judiciary.  The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.  The judiciary have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.  There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the court be subject to revision. The principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.  Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.  The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.  It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions. As important as the judiciary is to the sustenance of the rule of law and democracy; it is the most vulnerable of the three arms of government. Justice 19 Basic Principles on the Independence of the Judiciary, endorsed by the United Nations General Assembly resolutions in November and December 1985 81 KayodeEsopostulates three major areas that must be addressed to ensure true independence. They are: (i) mode of appointment; (ii) conditions of service and security of tenure; as well as (iii) discipline and removal from office20. This has been constitutionally provided for in Nigeria but not without deficiencies. Mode of Appointment and Removal of Judges in Nigeria In the words of Chief AfeBabalola SAN giving a lecture on ‘THE ROLE OF THE JUDICIARY IN THE SUSTENANCE OF DEMOCRACY IN NIGERIA’, it is stated that“when appointment of men and women to the bench is premised on extraneous considerations such as god-fatherism, political connections, religious leanings, “federal character” (without any regard for merit and competence) and monetary inducements, the ultimate victim is JUSTICE. The society is bound to suffer and bear the brunt of the consequences of having incompetent judges on the Bench.” In Nigeria, The President of the Federal Republic of Nigeria is charged with the responsibility of appointing the Chief Judge of Nigeria, Justices of the Supreme Court, and President of the Court of Appeal on the recommendations of the National Judicial Council subject to the confirmation of the Senate21. Likewise, the appointment of the Chief Judge of the Federal High Court, the Chief Judge of the High Court of the Federal Capital Territory, the Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory and the President of the Customary Court of Appeal of the Federal Capital Territory shall be made by the President on the recommendation of the National Judicial Council subject to confirmation by the Senate22. The appointment of the Justices of the Court of Appeal, Judges of the Federal High Court, Judges of the High Court of the Federal Capital Territory, Kadis of the Sharia Court of Appeal of the Federal Capital Territory and the Judges of the 20 K. Eso, “Further Thoughts on Law and Jurisprudence”, (Ibadan, Spectrum Law Publishing, 2003) P.261. Section 231 (1) (2) ibid 22 See Sections 238 (1), 250 (1), 256 (1), 261 (1) and 266 (1) ibid 21 82 Customary Court of Appeal of the Federal Capital Territory shall be made by the President on the recommendation of the National Judicial Council23. On the removal of Judges and security of their tenure, Uwaifo JSC stated that“A corrupt Judge is more harmful to the society than a man who runs amok with a dagger in a crowded street24”. Security of tenure is necessary for judicial independence. Although this does not mean judicial officers should be able to act with impunity, it does imply that judicial officers should only have to consider the laws and facts related to a case. In Nigeria, the President on the recommendation of the National Judicial Council can remove a federal judicial officer25. Similarly, the Governor of a state, on the recommendation of the National Judicial Council can remove a state judicial officer 26 . However, the constitution also provides conditions for which the appointment of a judicial officer may be terminated27. This is to ensure no judicial officer is unduly sacked for performing the functions of his office. The aforementionedprovisions highlighted with regards to the appointment and removal of judges in my opinion does not guarantee of the individual independence of the judges. Both processes are basically left in the hands of the Executive and Legislature. In fact, this situation cannot guarantee independence and impartiality of the judiciary. The National Judicial Council as stated in the introduction of this academic paper is not a judicial body but a Federal Executive Body. In other words The President (Executive) on the Recommendation of the National Judicial Council (Federal Executive Body) can remove a Judge. The removal of Judges is left in the hands of the Executive. One may argue that it consist of members of the judiciary but those members are also appointed by the Executive on the recommendation of a Federal Executive body (National Judicial Council) and Subject to confirmation of the Legislature (Senate). These are the bodies the judiciary is to check on their excesses. Since appointment is left to them, they appoint only allays there by politicising the judiciary. I humbly submit 23 Sections 238 (2), 250 (2), 256 (2), 261 (2) and 266 (2) ibid The way Forward for the Nigerian Judiciary by Elijah Godbaby 25 Paragraph 21 (b) of part 1 of the third schedule ibid 26 Paragraph 21 (d) of part 1 of the third schedule ibid 27 See Section 292 of the constitution ibid 24 83 that a noticeable deficiency of these procedures is that the appointing or removal power may be used to ensure that only persons loyal or constructively inclined to do government bidding are appointed while the Judges considered to be on the warpath to the government’s policies or interest are removed. This evidently is a clog in the wheel of sustaining any democracy. Funding of the Judiciary Amongst the various challenges of judicial independence, this is the most experienced challenge. It is rather unfortunate that in Nigeria the power of the Judicial purse resides in the Executive and Legislature as this hampers the independence of Judiciary. Although Sections 84 (2) (4) (7) and 121 (3) of the constitution28 evidently grants financial autonomy to the Judiciary by providing that the recurrent expenditure of judicial officers of the Federation and the States shall be a charge upon the Consolidated Revenue Fund of the Federation or State. However, there is no provision in the constitution that specifically ensures the provision of capital expenditure for the Judiciary. More so, that which is directly provided for in the aforementioned sections, the Executive arm of the Government still has to approve how many Judges will be appointed and catered for by the Government. However, the definition of judicial officers in Section 318 of the constitution 29 excludes judicial officers of the inferior courts and non-judicial staff. Further, Section 80 (4) of the constitution 30 providesthat no moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation except in the manner prescribed by the National Assembly. The poser now is what is the fate of judicial officers should National Assembly refuses to prescribe a manner? In summary, it an impairment on the independence of Judiciary when the Executive arm determines the fate of the army of officers it maintains every year and the Legislature makes laws about the disbursement of revenue. Of course the Legislature and the Executive between them do vote what they want for 28 Ibid Ibid 30 Ibid 29 84 themselves; whilst the judiciary, the ‘third arm’ is allocated what the other two deem fit. It leaves the judiciary in a position of going on bended knees to request for whatever it needs. If anything at all, the situation discussed above does not make for the independence of the Judiciary. Recommendations  An independent body should be constitutionally instituted to determine the Appointment and Removal of the Judiciary, Remuneration of the Judiciary as stipulated by the constitution.  Members of this body should be appointed by the Executive based on the recommendation of the Judiciary and subject to confirmation of the Senate. Giving the three arms equal share of power will limit the possibility of encroaching on the independence, impartiality and uprightness of the judiciary.  Aside constitutional provisions for remunerating the Judicial officers, there should also be a constitutional provision of funds for the Judiciary as arm, that will enable the equip the court with modern facilities and libraries with books and authorities that will facilitate accuracy and easy accessibility to justice in the court system without necessarily at the mercy of the state. All to the sustenance of modern democracy. In conclusion it is an incontrovertible fact that the judiciary occupies a pre-eminent position in the administration of justice not only in Nigeria but in every civil society where there is respect for the rule of law as opposed to rule by men or brute force. It therefore follows that the independence of judiciary is necessary for the sustenance of the rule of law and democracy, encroachment of this independence has led to the rise of despotic sit-tight leaders, politicalbuccaneers and economic saboteurs. The consequence of this is the sociopolitical and economic set back experienced in Nigeria and as well Africa at large. 85 AFRICA MUST CHANGE Stuart Kondowe Malawi Introduction African Must Change is an Initiative of OfodumChukwunonso Charles for the positive change and abortion of corruption in African Continent. Africa is a big continent. It is so big that I doubt I'll ever see the whole of it (I wish I could). But this size cannot limit the positive impact I want felt throughout from my domain. I am not a dream hero but an African created with an African oriented purpose. You and I hold some responsibility to and for mother Africa as Africans. This we can satisfy by being proud of being Africans because then we won’t ever be ashamed of our African means and ideas.I know we live in a global village and so must accommodate the Western and Eastern ideologies. But the question is how much space on our African plate should we leave for such ideologies? And how much of our African ideologies do we put on this world table? Most of us are so lost in chasing these foreign ideas than in pushing forth our African ones. The world knows little of our African solutions to world issues not because there is not any but because we Africans do not ponder on them for presentation as our friends do theirs. This generation and this time around is a chance to perform our African based purpose for that worldly impact. This is because almost any such purpose is new and has not been felt before given the chasing-mentality-of-old. Let's chase but at the same time push forth much of Africa, within our communities first then abroad. I am not a dream hero but an African with an African oriented purpose. Have you a purpose? Is it African?African ideologies and solutions are a novelty to the world, hope you know and see the potential already. 86 AFRICA MUST CHANGE Ofodum, Chukwunonso Charles African Law Journal Oxford Advanced Dictionary 7th edition defines change as “become/make difference; somebody/something to make somebody/something different; To pass or make somebody/something pass from one state to another; Replace1 When I talk of change I mean positive change not anegative change. To me change connotes making something that’s bad or something bad to be good, this means that change has taking place. When I talk of change I don’t mean political change but real positive change. Africa must change is an initiative of mine for positive change .The aim of Africa Must Change is to abort corruption and to bring equity which is fairness to theAfrican continent. Nigeria is one of the African countries. Our colonial masters came for their own selfless interests, not for our own interest and that is why they colonized Africa and till date African continent is still suffering from neo-colonialism because of their selfless interest. We need change (positive change), Africa must be united and change to good, let equity come and mitigate the rigours of the common law, here now who is equity and who is common law. Equity represents justice, fairness, and good judgments while common law is rigid and not flexible, we need flexibility, human and legality in Africa. The Principle of Change Five Characteristics of a Change Agent 1. Clear Vision 2. Patient Yet Persistent 1 Oxford Advanced Dictionary 7th edition 87 3. Ask Tough Questions 4. Knowledgeable and Leads By Example 5. Strong Relationship Built On Trust2 2 Georgecouros.ca/blog/archives13615 88 THE OSCAR PISTORIUS TRIAL OF THE CENTURY Ezenwa, Uzoma Angelou E. College of Law, University of South Africa African Law Journal This resumes today for the trial Judge to consider sentence once again. However, on this occasion, she has to sentence him for murder, not culpable homicide. The law stipulates that the sentence has to be at a minimum of 15 years unless the Judge finds &quot;special&quot; and/or compelling circumstances justifying a lesser sentence. So the world will be treated to 4 -5 days of the State and the Defence going hammer and tongs on this issue. With great respect, to my mind, it is regrettable that the proceedings are inherently farcical and, for this reason, there is still a real danger that the outcome will be similarly tainted. The reason for this is that OP has been convicted of murder on the basis that he &quot;only foresaw that he might kill a human&quot; ... that he never expressly/actually intended to kill, i.e.,doluseventualis. On the facts, this central finding is, with respect, highly farcical. a) On his own version, he fired four shots using deadly ammunition. b) He fired these in the direction of a human being, as he was satisfied that there was an intruder or intruders behind that door. c) Firing four shots into that confined space, at that height, is only consistent with an intention to kill. d) This is so because OP knew that the door would not stop the bullets. e) Had he fired above head height, in order to frighten, then there would have been the argument that he foresaw that a bullet could ricochet and hit a human in that confined space. f) Firing at humans, at that distance, knowing that the door would not stop the bullets. in theonly consistent with an intention to kill, i.e., dolusdirectus. Alas, the door appears to have confused everyone. The problem now and, with respect, it is a problem is that the Courts have still not told us what was his 89 intention when he fired those shots. We have been told that he did not intend to kill but only “foresaw” the possibility of death, without being told what he actually intended. He obviously had anintention when he pointed and fired four (4) shots. What was it? Intention as regards any crime is always central. As regards punishment, it is critical as it is the main determinant of moral blameworthiness. The farce now arises in that the Courts have excluded the fact that he fired with an intention to kill. The crisp issue then would have been what moral blameworthiness attaches when a homeowner “executes an intruder” because that is what it was since the intruder might well have even been a harmless street kid ... and OP was NOT actually under any threat. This would then have been central to all the ancillary considerations as regards the appropriate sentence. It would have greatly militated against the proceedings having a farcical taint. 90 RAPE: ITS LEGAL AND MEDICAL IMPLICATIONS Dr. Obioha K.C. E., Department of Obstetrics & Gynaecology, University of Nigeria Teaching Hospital, Ituku-Ozalla, Enugu. Obioha J.O. (Mrs), Faculty of Law, National Open University of Nigeria African Law Journal Abstract: In any allegation of rape, the absence of consent to sexual intercourse on the part of the victim is critical. However, there are legal criteria for rape to be ascertained and include the use of threat or intimidation, administration of conscious altering drug without the woman's consent, use of physical force, evidence of woman mental or physical inability to consent with cognitively impaired ability to resist, unaware that coitus or other sexual acts are occurring and women erroneously told she is engaging in intercourse or other sexual acts with her partner. 91 Introduction The word rape itself originates from the Latin verb rapere: to seize or take by force. The word originally had no sexual connotation and is still used generically in English. The history of rape, and the alterations of its meaning, is quite complex. Since the 1970s, many changes have occurred in the perception of sexual assault due in large part to the feminist movement and its public characterization of rape as a crime of power and control rather than purely of sex. The definition of rape varies both in different parts of the world and at different times in history. (Smith et al 2004). The World Health Organization defined it in 2002 as "physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object". (Krug, 2002). In 2012, the FBI changed their definition from "The carnal knowledge of a female forcibly and against her will." to "The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." for their annual Uniform Crime Reports. However, the definition does not change federal or state criminal codes or impact charging and prosecution on the federal, state or local level; it rather means that rape will be more accurately reported nationwide. (US Dept. Of Justice, 2012) Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent, such as one who is unconscious, incapacitated, or below the legal age of consent. (WHO, 2011). The term is most often defined in criminal law. (Legal dictionary, 2011). Prevalence: Internationally, the incidence of rapes recorded by the police during 2008 varied between 0.1 in Egypt per 100,000 people and 91.6 per 100,000 people in Lesotho with 4.9 per 100,000 people in Lithuania as the median according to the United Nations. According to the American Medical Association (1995), sexual violence, and rape in particular, is considered the most underreported violent crime. The rate of reporting, prosecution and convictions for rape varies considerably in different jurisdictions. Rape by strangers is usually less common than rape by persons the victim knows. (Abbey et all, 2004) 92 A United Nations statistical report compiled from government sources in 2001 2002 showed that more than 250,000 cases of male-female rape or attempted rape were recorded by police annually. The reported data covered 65 countries.In some jurisdictions, male-female rape is the only form of rape counted in the statistics. Nigerian report of prevalence of rape is as high as 84% according to the Project Alert report on the National Daily Newspaper of 7th January, 2013 by Josephine Effah-Chukwuma. Sexual violence and rape in particular, is considered the most under-reported violent crime (American Medical Association, 1995). Thus, the number of reported rapes is lower than both incidence and prevalence rates (Walby and Allen, 2004). The legal requirements for reporting rape vary by jurisdiction. The Nigerian Law and Rape The provisions of the section 357 of the criminal code states that Any person who has carnal knowledge of a woman or girl without her consent or with her consent, if the consent is obtained by force, or by means of threat or intimidation of any kind, or by fear of harm, or by the means of false and fraudulent representation as to the nature of the act, or in the case of a married woman by personating her husband is guilty of an offence which is called rape. The Penal Code defines rapes as follows: “A man can be held guilty of rape if he has sexual intercourse with a woman without her consent, or with her consent, if consent was unlawfully obtained”. By presumptions of the law; rape can’t be committed by a female on a male, a husband can’t rape his wife, a male below 12yrs can’t be accused of carnal knowledge. • This is the most serious sexual offence and by virtue of section 352 of the criminal code, the punishment is spelt out. Any person who commits the offence of rape is liable to imprisonment for life with or without canning. There is presently a call for death sentence on assailants Customary law, which includes Sharia law in Nigeria, is also applicable in rape cases and takes precedence if inconsistent with the constitution. Can the multiplicity of customary laws that exist in Nigeria override constitutional protections if chosen as the applicable personal law? Under the customary law of some groups the punishment for rape ranges from banishment, a fine paid to the victim’s father or family group or enforced marriage to the victim of the rape. With the exception of banishment these are also the sort of sanctions we frequently see 93 negotiated between a victim’s and her rapist’s family and mediated by the police when rape is reported to them. Under Sharia law it’s almost impossible to prove rape, the requirement for at least 4 male witnesses that must all agree it was actually rape is both unreasonable and improbable. There are even records of victims that reported a rape and were instead charged with adultery, a crime punishable with death by stoning or zina a lesser crime punishable with caning. Risk Factors There is no single theory that conclusively explains the motivation for rape; the motives of rapists can be multi-factorial and are subject to debate. Several factors have been proposed: anger, a desire for power, sadism, as well as sexual gratification and evolutionary pressures. (Thornhill et al, 2000) Also, socioeconomics including poverty (Omorodion FI et al, 1998), level of education for females, disaster occurence, psychopathy, law and policies, ethical standards, early childhood environments, peer pressure and attitudes towards the victims has been proposed to explain the motivational risk factors. Data on sexually violent individuals show that most direct their acts at individuals whom they already know.(Heise et al, 1995) Alcohol has been shown to play a disinhibiting role in certain types of sexual assault (Miczek KA et al, 1993), as have some other drugs, notably cocaine. Alcohol has a psychopharmacological effect of reducing inhibitions, clouding judgements and impairing the ability to interpret cues. (Abby A et al, 1995) In 2013, The World Health Organization states that the principal factors that lead to the perpetration of sexual violence are:    Beliefs in family honour and sexual purity; Ideologies of male sexual entitlement; Weak legal sanctions for sexual violence. Research on convicted rapists has found several important motivational factors in the sexual aggression of males. Those motivational factors repeatedly implicated are having anger at women and having the need to control or dominate them. (Lisak D et al, 1988). 94 A study by Marshall et al. (2001) found that male rapists had less empathy toward women who had been sexually assaulted by an unknown assailant and more hostility toward women. Types of Rape/ Rapist There are several types of rape, generally categorized by reference to the situation in which it occurs, the sex or characteristics of the victim, and/or the sex or the characteristics of the perpetrator. Different types of rape include date rape, gang rape, marital rape, incestual rape, child sexual abuse, prison rape, acquaintance rape, war rape and statutory rape. (UCSB’s Sex info, 2010). Also, there could be corrective rape and rape by deception. In 1979, Nicholas Groth has described three types of rape, based on the goal of the rapist as follows; Anger rapist The aims of these rapists are to humiliate, debase, and hurt their victims; they express their contempt for their victims through physical violence and profane language. For these rapists, sex is a weapon to defile and degrade the victim; rape constitutes the ultimate expression of their anger. This rapist considers rape the ultimate offense they can commit against the victim. The experience for the offender is one that is of conscious anger and rage. Power rapist For these rapists, rape becomes a way to compensate for their underlying feelings of inadequacy and feeds their issues of mastery, control, strength, authority and capability. The intent of the power rapist is to assert their competency. The power rapist relies upon verbal threats, intimidation with a weapon, and only uses the amount of force necessary to subdue the victim. The power rapist tends to have fantasies about sexual conquests and rape. Sadistic rapist 95 For these rapists, they have a sexual association with anger and power so that aggression and the infliction of pain itself is eroticized. For them, sexual excitement is associated with the inflicting of pain upon his/her victim. The offender finds the intentional maltreatment of his victim intensely gratifying and takes pleasure in the victim's torment, anguish, distress, helplessness, and suffering. It usually involves extensive, prolonged torture and restraint; which are deliberate, calculated and pre planned. Clinical features The history of rape is most of the times concealed by the victims of rape. However, where it is not concealed, history must include the time and place of rape, description of the perpetrators and method of approach if known, perpetrators use of alcohol, drugs, condom, the nature of sexual assault(vaginal, oral or anal penetration by perpetrators penis, finger, weapon, inanimate object), the coercive measures used(verbal threats, physical force, weapon), the action of the victim during rape(resistant, acquiescent, co-operative), and the action of the victim after the assault (ate or drank, cleaned mouth or teeth, changed clothes, urinated or defecated ,washed genitalia, showered, battered or douched). Also, the alleged victims alcohol and drug use before or during the assault, the alleged victims history of previous sexual abuse and assault (when and type), and the alleged victims gynaecologic history (age of menarche, LMP, last coitus before incidents, current contraceptive use, possible or confirmed pregnancy, obstetrics history, past gynaecologic and surgical problems, prior anogenital surgery or trauma must be elicited from the patient. Early presentation may include vulva & anal injuries, bruises, bites, ligature marks and scratch marks on the body [Face, bucal cavity, neck]. Also, myalgia, vaginal bleeding with urethral, anal and rectal injuries and fistulas might be the early presenting symptom. There may be foreign body in genital tract. Victims usually express more concerns about their health and use health services more often. (Dalton, 2007). Late presenting features might include the following: Concerns about Sexually Transmitted Infections, Human Immuno-deficency Virus, Psychiatric illness {depression, Drug abuse}. Also, chronic pelvic pain has been identified as a late presenting feature. (Sami et al, 2006) Investigation Since the vast majority of rapes are committed by persons known to the victim, the initiation and process of a rape investigation depends much on the victim's willingness and ability to report and describe a rape. Biological evidence such as semen, blood, vaginal secretions, saliva, and vaginal epithelial cells (typically 96 collected by a rape kit) may be identified and genetically typed by a crime lab. The information derived from the analysis can often help determine whether sexual contact occurred, provide information regarding the circumstances of the incident, and be compared to reference samples collected from patients and suspects. (National Criminal Justice Reference Service, 2004). Medical implications of rape Complications of victims of rape include; Trauma, sexually transmitted infections STI’s; HIV, Hepatitis-B, Hepatitis-C infections, unwanted Pregnancy with its sequelae, acute stress disorder, depersonalization or dissociation. Legal implications Section 358 of the criminal code provides that “any person who commits the offence of rape is liable to imprisonment for life, with or without canning.However, for there to be a conviction of rape, there must be proof of mens rea and actus reus. Recommendation • There must be respect for sexual and reproductive rights and redress of gender power imbalances. • Doctors who give evidence in court should be compensated • The law should be adjusted to prosecute female assailants as well. • We should endeavour to improve laboratory facilities for investigation of sexual assault and forensic medicine. • The case of rape should be adjudicated as fast as possible in order to encourage victims to report such cases. • Rape cases should be handled in a secluded court other than open court so that victims will not be stigmatised. • Government should establish a standardized protocol for rape management Conclusion Violence against women and children in Nigeria is a great challenge and a dare public health issue demanding urgent intervention by all and sundry, as a result, government should sincerely pursue the goal to protect girl child and women against rape and other violence. Having legislation and stiffer penalty is the only way the evil trend can be reduced or eradicated. 97 ALUTA CONTINUA, VICTORIA ACERTA! Ezenwa, Uzoma Angelou E. College of Law, University of South Africa African Law Journal The word “ALUTA” in the real sense classically means “STRUGGLE”; the word is widely associated with a STRUGGLE for Freedom or LIBERATION of people from any form of Oppression, Repression or Subjugation.ALUTA was a household word used in AFRICA when the generality of the Africans was charting and chanting for freedom from the Colonial Masters during the Colonial Era. The full phrase of the shortened word ALUTA is “ALUTA Continua, Victoria Ascerta”, meaning “The Struggle Continues, Victory is Certain”; which is fashioned after the Portuguese saying: “A luta continua, Vitoria e certa”- The Struggle Continues, Victory is Certain! This compelling theme for the liberation of people was first used by Samora Michael, the Leader of the FRELIMO Movement during the Mozambican war for Independence. Samora Michael used the phrase often to cultivate popular support against the Portuguese Colonial presence. He continued in the usage of the phrase “Aluta continua” as an Unofficial National Motto when he became the first President of an Independent Mozambique in 1975. The phrase ‘ALUTA Continua’ was later made popular by the legendary South African songstress, Miriam Makeba in her song titled ‘Aluta Continua’ which she released during the anti-apartheid struggle. The phrase again became associated with the anti-apartheid resistance movement. It has since then never disappeared from public discourse in AFRICA and then spreads widely to every part of the world at large. 98 Besides, in NIGERIA, a country full of Ups and Down entangling struggles for self-liberation in all facet of life; “Aluta Continua, Victoria Ascerta” became a regular word used by those who put on the white toga of activism. The phrase ends every Press Releases written by called Comrades whenever there is any course to fight- of course STRUGGLE has always been in Continuance in a country like NIGERIA where citizens seem to be oppressed in one form or the other by a group(s) of people feeding fat on the national cake which ought to sundry on all. ‘ALUTA Continua’ became a general word used by the Nigerian Students, more so, by the Students Revolutionaries, Comrades, and Activists. ALUTA Spirit which is the Spirit to fight for one's rights by engaging in apeaceful/non-violent demonstration of an ungodly act by any form of Government became a Spirit inbuilt to Nigerian Students with the belief of “Injury to one is aninjury to all”. The ALUTA I was made to understand by my father is Students venting their grievances in which they engage in peaceful demonstrations. During his days on campus, well-coordinated protests were made and Vandals who planned to hijack the protests and make it violent were severely dealt with by the Comrades leading the protests. Regrettably, the reverse is the case among the contemporary Nigerian Students. They could hardly organize a peaceful mass resistance. Furthermore, ALUTA has been paraphrased and vastly crooked to a violent form as many schools are being shut down whenever Students protest. Increments of School Fees have always been the cause of Nigerian Students rampaging. Embarking on protests to express their displeasure; they’ll take to the streets, make bonfires, barricade the roads, and disrupt vehicular movement for hours. Some vandalize and destroy properties; many cases have been recorded where angry Students sets fire on buildings and vehicles. Some cart away valuable goods from the shops located along the streets. All these are done in the name of ALUTA. Going on destructive demonstration and stealing in the guise of protest is against the Spirit of ALUTA. In the mission 99 of the Nigerian Policemen to tame the wild Protestants, they then make worse the situation as they many times result to baton charge and fire teargas to disperse the rampaging students. The students in their usual manner start throwing sachets of water, sticks, and stones at the policemen. Provokingly, the police then also go riotous by shooting at them. Lives are lost in the process. In “The Politics of Nonviolent Action”; it is made known that the problem with the use of violent confrontation strategies is that they quickly escalate to the point where the parties’ only concerns are victory, vengeance and self- defense. In these cases, the moral arguments of people (Students) who are being unjustly treated become irrelevant. What matters is that they have used violent strategies and their opponent (the Government or School Authority) is, therefore, justified in a violent response. The problem is complicated by the fact that both sides are usually able to argue that the other side started the violence. Violent protests can never provide a means to a secure and peaceful end. Contemporary Nigerian Students fail to understand that non-violent protest is a peaceful way to face an enemy. Fighting for one’s right non-violently helps in not giving the enemy the satisfaction of seeing a weak point and using it against one. It is an advantage of being able to outwit one’s enemy. I personally would never even consider participating in violent protest; I will never be at the forefront of any violent protest where sachets of water, sticks, and stones are exchanged for teargas and bullets. Contemporary Nigerian Students never realize that it is only for good to make their grievances known by making a procession peacefully, without any form of violence; with that, the school authority will listen to their demands and still the school will be in session for them to continue their academic studies. Foolishness they bath in, they’ll because of increment of school fee destroy and vandalize properties but later bear the brunt. The school will be shut down and they go home being idle for months, and then come back to pay damages when the school is finally re-opened. They sign undertaken to be of good behaviors. They out of their sheer ignorance make the VC and other affected lecturers rich without knowing, as brand new cars, clothes, shoes and housing are restored, all from the 100 student’s pocket and that increased school fee will not be slashed. Then, the aim of the protest becomes abortive and the protest a futile endeavour. By Ezenwa, Uzoma Angelou E. 101 AFRICA MUST CHANGE Stuart Kondowe Malawi African Law Journal Africa is a big continent. It is so big that I doubt I'll ever see the whole of it (I wish I could). But this size cannot limit the positive impact I want felt throughout from my domain. I am not a dream hero but an African created with an African oriented purpose. You and I hold some responsibility to and for mother Africa as Africans. This we can satisfy by being proud of being Africans because then we won’t ever be ashamed of our African means and ideas.I know we live in a global village and so must accommodate the Western and Eastern ideologies. But the question is how much space on our African plate should we leave for such ideologies? And how much of our African ideologies do we put on this world table? Most of us are so lost in chasing these foreign ideas than in pushing forth our African ones.The world knows little of our African solutions to world issues not because there is not any but because we Africans do not ponder on them for presentation as our friends do theirs. This generation and this time around is a chance to perform our African based purpose for that worldly impact. This is because almost any such purpose is new and has not been felt before given the chasing-mentality-of-old. Let's chase but at the same time push forth much of Africa, within our communities first then abroad. I am not a dream hero but an African with an African oriented purpose. Have you a purpose? Is it African?African ideologies and solutions are a novelty to the world, hope you know and see the potential already. 102 COMPENDIUM APPENDICES Africa Must Change Quotations Extracted from Africa Must Change Dicta-democracy or mili-democracy includes agovernment that practices democracy but not atrue democracy. Ofodum, C. C Some people will ask God to do something for them like securing a job when God finally does that they will not use it to worship the Lord but they will be fighting against God either directly or indirectly. Some will even go as far as fasting in other to please God and get what they want, immediately they get it they will automatically forget God. You must be either agent of God or the agent of Satan. Ask yourself where I belong. Ofodum, C. C. Familitocracy: connotes and denotes government of the family by the family to govern a country or organisation.Ofodum, C.C If you are among those people who offend people and believe it shall end in asking for forgiveness, repent or you go to hell fire. Ofodum, C. C. Christianity doesn't end in going to church but doing the word of God. Ofodum, C. C. Wickedness will take you to nowhere but hell fire. Ofodum C. C. When you offend your fellow human being, you have offended God. Be notified. Ofodum, C.C People who hardly say sorry are people who hardly accept sorry, vis a vis. Ofodum, C. C. A dividend of good is progress. Ofodum, C. C. The highest salary you can pay your fellow human being is being good to him or her.Ofodum, C. C Every discipline has bad egg not only law, be notified. Ofodum, C. C. 103 Humility is the key to success, humble thou yourself.Ofodum, C. C. The sweetest aspect of life is that a king is unpredictable until it unfolds. Tomorrow is unknown and pregnant. The world has no arithmetic formula. Ofodum, C. C. Our legal system will not forgive anyone who allowed himself to be used as an instrument of injustice Ofodum, C. C. Jeopardizing, prejudicing and perverting justice shall never prevail in our legal system, let's watch as the drama unfold. Ofodum, C.C. Longevity of any relationship lies on forgiveness. Let's learn how to forgive one another no matter what, though is not easy. Forgiveness is love, love comes from God. Ofodum, Charles Chukwunonso Betrayers and sadists better repent and avoid your evil ways before the wrath of God fall upon you. Repent or you perish. Ofodum, Chukwunonso Charles Impunity brings mayhem, lawlessness and brutish in any country that allows it, learn how to practicalize justice even if the world will end. Ofodum. C. C. Esq. Sentimentality shall not prevail in law in other to strife justice. The aim of the law is to strife justice. We shall set aside any atom of sentiment in law. Ofodum, C. C. African likes perverting justice, welcome to Africa where theperversion of justice is the order of the day. Ofodum, C. C. Nigerians know how to bend the law in other to favour them, even the so called lawyers and judgesthat'refavouritism, in law we called it bias and against the natural justice, equity and good conscience. let us learn how to practice justice, justice must not be seen but it must be seen to be done. Ofodum, C., C. To know a good friend, give him or her power or authority to exercise, you will see his or her real characters, Ofodum, C.C., Just philosophizing, thanks for perusing. Forgive and try to forget once the person asksfor forgiveness, is not easy to humble yourself and ask for forgiveness and God forgives let alone we human. Ofodum, C. C. 104 Once someone offends you let the person know or notify him or her for correction purpose, don't keep quiet and make malice because it will never solve the problem but maximises the problem. Ofodum., C. C. Making Sense I just want to make common sense, though common sense is not common now. Some people like to betray or to do something contrary to what they have agreed with their predecessor or their help, once they get what they want they will change overnight e.g. you may helpsomeone in securing work once he gets the work(genuine work) heturns against you automatically. A layman calls it and abnormality. Inspirituality, we call it people who are possessed by the evil spiritthat makes them misbehave. Psychology calls it psychologicalimbalance. Sociology calls it deviancy. In law we call it defaulters,offeree's breach of contract or law violator, but the best way tosolve this quagmire is distance, avoid them early enough. If you're among these people and you are perusing on my write up, you are aSatan instrument, desist from it, thank you.Ofodum, C.C. The good people love the good people, the bad do same to good people but they cannot be good. Thank God for thelaw ("law is like a chain to man to avoid violation of law). OFODUM, C. C. Is good to be good but don't be too soft to people because they will take you for granted, be wise. OFODUM, C. C. People can promote your dream and people can kill your dream, avoid the people who can kill your dream and accept people who promote your dream. OFODUM, C. C. The certificate is not education but evidential document. OFODUM.C.C. The knowledge you acquired in your school should speak more of you, not acertificate. Equity looks at intent, not the form, the certificate is formed not the intent, thanks . OFODUM, C. C. Education is meant for practicalization not for saying OR THEORY. OFODUM, C. C. To be educated is good, to not be educated is bad, but to be educated without practicing it is very bad. OFODUM, C. C. 105 Maturity is not by outlook but by action. OFODUM, C. C. Over rush kills in life, delay kills too, just move normally as God wants you to move. OFODUM, C. C. Who is your enemy? Enemy connotes anything or anybody that antagonizes or opposes or hinders you from success or positive change. OFODUM, C. C. Don't fear your enemy but see them as a challenge to success. OFODUM, C. C. Before you succeed in life you must have enemy/ enemies; an enemy makes you succeed more, they push you to success, but be wise. OFODUM, C.C. Show me a successful man and ask him of his enemy; to have anenemy is mandatory. OFODUM, C. C. For crying out loud, do to others what you want or expect people to do to you. OFODUM, C. C. Some mistakes cannot be corrected, avoid such mistake. OFODUM, C. C. Frustration is a mother of failure.OFODUM, C. C. Helping people can take you to a level you never expected, help someone today and go far. OFODUM, C. C. Do the right thing and avoid the wrong one. OFODUM, C. C. You can’t please people but please God. OFODUM, C. C. Friends, please let's embrace peace; peace if the mother of love. OFODUM, C. C. Some people like learning lessons when it is too late.OFODUM, C. C. People are meant to advise people; please if you see a friend, brethren or neighbor who those something wrong please try to advise him or her, it may not be your obligation to do so but do it because of God.OFODUM, C. C. You must understand the world either now or later.OFODUM, C. C. A human being plans while God re-plans. OFODUM, C. C. 106 Don’t fight with people above you, rather dialog with them or table them before your God. OFODUM, C. C. Inferiority complex is the major problem of the people. OFODUM, C. C. Procrastination is the beginning of failure. OFODUM, C. C. Frustration is the mother of failure. OFODUM, C. C. I Shall Disclose Achievement in the World Today In the world today, we have achievers, non-achievers, half achievers, patient achievers and impatient achievers. Non-achievers are those who don’t achieve because of procrastination, on the other hand, Half Achievers are people who achieve small because of procrastination and under unpredictable circumstances while Achievers are people who achieve their various goals in the absence of procrastination. Patient achievers are the people who achieve their aim after exercising reasonable patience, while impatient achievers are people who did not achieve their aim because of lack of patience. Achievers may delay but not much, achievers may fail but they can stand but non-achievers don’t stand when they fail or after procrastination, they keep on delaying until it is too late.Some may go further looking for who to blame. OFODUM, C. C. Words of Life From Professor J. C. AgwunobiKsc 1. The truth punishes those who hide it. 2. The profit of the earth is for all of us why are some people not getting it. 3. As man eats from the world so the earth eats him. 4. A house built with Gods wisdom must be established with this understanding. 107 5. In conflict resolution, we resolve to manage and manage to transformthehuman mind. 6. The power of Christ in the righteous, who worships God in truth and in spirit, makes evil spirit spell like perfume that cannot hide. 7. We live and our children will live in a more united and democratic Nigeria. From Ezenwa, Uzoma Angelou E. Myth: If you talk to women, problem. They will think that you are trying to "toast" them. If you don't talk to them, problem. They will think you are dumb and arrogant. Reality: It depends on how you talk to them. Do you look and smile at them in a lewd manner while talking to them? If you don't talk to them in given situations, it depends on how you do it. Do you project a serious attitude and an unapproachable aura, especially when they sense you are faking it? Women are very intuitive. They know a good man from a bad man. They don't know how they know. They just know. This is one of the wonders of nature. But only women who are not hurting or who are able to overcome their hurt that is capable of being intuitively correct in most given situations. You will be the fresh air if you are self-authentic, only digesting positive exposures little by little. The reason many people are not being taken seriously is because they do not take thetime to digest their exposures. They immediately try to speak like the Britons without taking the necessary natural time for their brain to assimilate and digest all the clicks of the accent. Therefore, they turn out fake. And walk around, taking so much that they have a barrage of blind spots in their judgment of life and people. Be a master in the art of reading women. Excerpts from the incoming book, "Why Ladies Don’t like Me". Angelou's Diary# 108 How Does International Law Protect Human Rights? International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principal legal protection of human rights guaranteed under international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level. Angelou's Diary# A Look at the Background of Human Rights Originally, people had rights only because of their membership in a group, such as a family. Then, in 539 BC, Cyrus the Great, after conquering the city of Babylon, did something totally unexpected—he freed all slaves to return home. Moreover, he declared people should choose their own religion. The Cyrus Cylinder, a clay tablet containing his statements, is the first human rights declaration in history. The idea of human rights spread quickly to India, Greece and eventually Rome. The most important advances since then have included: 1215: The Magna Carta gave people new rights and made the king subject to the law. 1628: The Petition of Right set out the rights of the people. 109 1776: The United States Declaration of Independence—proclaimed the right to life, liberty and the pursuit of happiness. 1789: The Declaration of the Rights of Man and of the Citizen—a document of France, stating that all citizens are equal under the law. 1948: The Universal Declaration of Human Rights—the first document listing the 30 rights to which everyone is entitled. Angelou's Diary# There comes a time your lifetime when you walk away from all the drama and the people who create it you surround yourself with people who make you laugh learn from the bad and focus on the good. Love people who treat you write and pray for the ones who don’t. life is too short for anything but happy, falling down is part of life getting up is part of living. Angelou’s Diary The good ones should always expose the bad ones. That's how the integrity of the institution is going to be maintained...because it's important it's maintained. Real Men don't play hide and seek. They go to the zoo, open Lion's cage slaps the Lion and start running. The deficiency of good manners and civil culture in our present generation is so alarming. Our general attitude and the way relate to others leaves much to be desired. Some people lead their lives as though we were still living in the medieval era or Stone Age. Nobody seems to be tolerant of dissenting and opposing views any longer. You are branded an enemy for having a different perspective on an issue as if you have to support a trending view or a popular opinion even when it doesn't agree with your own position or belief. All our cherished values and liberal culture have been eroded. 110 We need not just a new orientation but also a total overhaul of ourvalue system. Let's change the way we think! Let's change the way we talk! Let's change the way we act! Let's change the way we treat each other! Angelou's Diary# The deficiency of good manners and civil culture in our present generation is so alarming. Our general attitude and the way we relate to others leaves much to be desired. Some people lead their lives as though we were still living in the medieval era or Stone Age. Nobody seems to be tolerant of dissenting and opposing views any longer. You are branded an enemy for having a different perspective on an issue as if you have to support a trending view or a popular opinion even when it doesn't agree with your own position or belief. All our cherished values and liberal culture have been eroded. We need not just a new orientation but also a total overhaul of our value system. Let's change the way we think! Let's change the way we talk! Let's change the way we act! Let's change the way we treat each other! _A great story for any group_ !! *The Fable of Porcupine (worth reading)* ************************* 111 It was the coldest winter ever. Many animals died because of the cold. The porcupines, realizing the situation, decided to group together to keep warm. This way they covered & protected themselves, but the quills of each one wounded their closest companions. After a while, they decided to distance themselves one from the other & they began to die, alone & frozen. So they had to make a choice, either accept the quills of their companions or disappear from the Earth. Wisely, they decided to go back to being together. They learned to live with the little wounds caused by the close relationship with their companions in order to receive the warmth & heat that came from the others. This way they were able to survive. *The best group is not the one that brings together perfect people, but when each individual learns to live with the imperfections of others & can admire the other person's good qualities.* Better to be surrounded by warm pokes than be frozen in solitude. *Stay blessed and united, great family.* Ezenwa, Uzoma Angelou E. Be thankful for all the struggles you go through. They make you stronger, wiser and humble. Don't let it break you,...Let it make you...#Grace Unlimited. Before you talk, listen. Before you react, think. Before you criticize, wait. Before you pray, forgive. Before you quit, try. I want to live; I want to live my life today Make a better way for me and you When the sun woke up, I got on my knees to pray 112 Let the injustice be solved and mended today Do you live for the lo-ove? Do you live for the hate? O-Oh! It's like you make it, then they take it And you can't get it back, o-oh! Do you live/defend yourself /fight for others? Don’t even know anymore? It's like you make it, then they take it And you can't get it back# If the Best Loser at the group stages can go on to win the Trophy… No matter how many times you have lost, God can still change your story to your VICTORY...#I’m Humble Don't let the negative opinions of others drown your inner voice!...# I’m humble today# Everyone will go through some hard times at some point. Life isn't easy. Just something to think about. Did you know the people that are the strongest are usually the most sensitive? Did you know the people who exhibit the most kindness are the first to get mistreated? Did you know the ones who take care of others all the time are usually the ones who need it the most? Did you know the three hardest things to say are I love you, I'm sorry, and help me? Sometimes just because a person looks happy, you have to look past their smile to see how much pain they may be in. To all my friends who are going through some issues right now--let's start an intentional avalanche. We all need positive intentions right now. I rest my case# 113 At the end of the day, you either get bitter or you get better. It’s that simple. You either take what has been dealt with you, allow it to make you a better person, or you allow it to tear you down. The choice does not belong to, it belongs to you. I've learnt my lesson# I'm sure you are learning from my lesson too## Get Better Everyday# I found that one of the peculiarities of the 21st century is a high rate of depreciation and depletion in value. You do something 'magnificent' now, it takes just a few hours for someone else to come up with something to clear your records and then your results start to lose value. The solution is to get better every day. Wake up every morning with a zeal to clear your previous records. Make sure every new day is an improvement on the former. Don't repeat results, don't sit on a spot, do better. The competition is a lot more intense now, it's better to set realistic goals and focus on being better every day. So the task here is to be better, outperform yourself, make sure you don't go to sleep till you have cleared out yesterday's performance, make sure you improve daily. #ExcellingInThe21stCentury #Improve Daily #Be Better # Outperform yourself 114 115