Contemporary Concerns

For the final part of GLR Volume 1 | Issue 1, authors have presented current legal topics that impact The Gambia and beyond. For print versions of articles, please email This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Copyright Infringements and the Gambian Music Industry

By Nasiru D.B. Deen, a student at the University of the Gambia. He is currently studying law and is expected to complete his LLB program in May, 2018. His areas of interest include Intellectual Property Law and Criminal Law, and this is his first published journal article. Email: This email address is being protected from spambots. You need JavaScript enabled to view it..

Abstract

This research paper seeks to examine in detail how copyrights protecting music, as contained in the Copyright Act of 2004, are presently being infringed in the Gambia, and to also draw the attention to the adverse effects these purported infringements are having on the players and institutions involved in the Gambian music industry. Using bibliographic sources, the research paper highlights the history, current informal structures and questionable modes of operation within the Gambian music industry and how these have contributed to endemic copyright infringements that have plagued the industry since its inception. After outlining the obstacles that the present generation of Gambian artists must tackle on a regular basis, the paper presents recommendations as to how these problems could be potentially solved. It concludes with a positive outlook on the future of both the Gambian music industry and copyright enforcement.

Introduction

Copyrights is an area of Intellectual Property Law that grants exclusive and assignable moral and economic rights to the creator of original artistic, literary, and musical works for a limited period.[1]The 2004 Copyright Act of the Gambia is the legal instrument which governs and regulates copyrights in the Gambia.[2] It was enacted in observation of the Gambia’s obligations under the Berne Convention for the Protection of Literary and Artistic Works of 1886, a treaty which the Gambia signed in 1993.[3]

Copyright in the Gambia differs from other forms of intellectual property in that it need not be registered in order for one to enjoy the protection it provides, which is unlike patents, trademarks or registered designs.[4] Copyright protection is vested on the author of a work once the work is created in a material form.[5] The 2004 Copyright Act contains several provisions that protect the rights of creators of musical works.[6] This aspect of the Copyright Act is vital to the music industry in the Gambia, as without it, hundreds of musical creations would be open to free use and distribution making it impossible for the creators/authors to benefit from their artistic creations.

This paper argues that the Gambian Music industry is a largely dysfunctional industry with very few recording studios, and even fewer record labels in operation,[7] yet it has existed since the dawn of Gambian independence from the British in the early 1960’s.[8] The early generation of Gambian musical acts included the Super Eagles, Guelewar and Ifang Bondi bands, who were ever-present in the Gambian musical scene until the late 1980’s.[9] The musical works of this early generation of Gambian musicians did not benefit from copyright protection, however as there existed no relevant copyright law in the Gambia prior to enactment of the Copyright Act in 2004.[10] As a result, their musical productions were pirated on a mass scale, which resulted in substantial economic losses for the creators of such works.[11]

The current crop of Gambian musical acts, which includes artists such as Jaliba kuyateh, Jali Madi and Bai Babu, also face the same problems as the early generation, in spite of the coming into force of the Copyright Act nearly fourteen years ago.[12] Gambian music is still being pirated both online and in the market places;[13] royalties don’t get paid to artistes whose music regularly gets played on FM radio stations and on TV.[14] This paper argues that these issues have in turn led to the Gambian music industry not reaching its full economic and social potential, as it continues to struggle for prominence in both the local and international music scene.[15]

The first part of this research paper therefore discusses the copyright laws that protect music in the Gambia, and highlights the implication of those laws on both the creators of music and its users. The second part of the research paper then describes the most common forms of copyright infringements that occur in the Gambia, and details how they occur and who commits them. The third part of this essay examines the effects that copyright infringements have on the Gambian music industry, whilst the final part of the essay provides recommendations as to the different methods that could be employed to curtail the perennial infringement of music copyrights in the Gambia.

Copyright Laws Protecting Music in the Gambia

Creators and co-creators of musical works are entitled to copyright protection under Gambian law for the music they create.[16] The Gambian Copyright Act of 2004 contains several provisions pertaining to the protection of music copyrights. Copyright in a sound recording vests the exclusive right to do or to authorise the doing of any of the following acts in the Gambia:

  1. ‘The direct or indirect reproduction of that sound recording’.[17] Direct reproduction refers to copying sound recordings instantaneously copying from a physical format (such as a CD or DVD to another physical format or device, such as an MP3 player or hard drive) or copying from an online format (such as an online music services, onto a physical format or device), whilst indirect reproduction requires some intermediary copying to take place such as the copying of a broadcast.[18]
  2. ‘Importation of copies of the sound recording’,[19]
  3. ‘the distribution to the public by sale or other means transfer of ownership of the original or copies of the sound recording’,[20]
  4. ‘rental to the public or public lending of a copy of the sound recording’,[21]
  5. ‘the making available to the public of the sound recording, by wireless means, in such a way that members of the public may access it from a place or at a time individually chosen by them’.[22]

By implication, any of the above acts committed by any person(s) or institution(s) without the authorisation of the copyright holder constitutes an infringement of music copyrights and a violation of Gambian Copyright law, and may be liable to a fine of 500, 000 Dalasi or a jail term not exceeding three years; or both a fine and jail term.[23] Such a person or Institution would also be liable to pay damages in a civil suit, and may be mandated by the court to cover all ‘expenses caused by the infringement, including legal costs.’[24]

However, it would not amount to a copyright infringement if the unauthorised copying of a music author’s work is done for one’s private use or for teaching and research purposes.[25] It would also not amount to a copyright infringement if ‘short excerpts of a performance or sound recording’[26] are used for ‘commentary, criticism, parody or informative’[27] purposes, this is referred to as ‘fair use.’[28]

In the Gambia, an author of music or music producer holds copyright on his/her work for fifty years from the end of the year in which the recording is first published or made available to the public, and if it has not been published, for fifty years from the end of the year in which it was fixated.[29] The work(s) of the music producer/author, after the expiry of this period, would then fall into the public domain and anyone wishing to use the artist’s work(s) may do so freely, without the fear of infringing copyright laws.[30] An artist’s work may also fall into the public domain if he/she deliberately places it in, which is known as “dedication.”[31]

In no circumstance does copyright protection for original work extend to ideas and concepts.[32]  For copyright purposes, a work does not come into existence until it is reduced to a material form.[33]In the case of music, “a musical work [would] not come into being while it only exists in the composer’s mind even though he might give a rendition of it on a musical instrument, it will only come into being when it is reduced to some material form such as a written notation.”[34]

The Gambia Copyright Act of 2004 grants the authors, performers and producers of sound recordings and other copyright work the right to royalties “when [their] sound recording discs or other devices are used in a public performance or in a public place or where they are used in broadcasting or audio-visual work.”[35] Royalties are sums payable the right to use someone else’s property for the purpose of commercial gain, and are usually paid on assets with a limited lifespan.[36]As such music authors are entitled to royalty payment whenever their music is used by persons or institutions such as radio stations, television channels, bars, clubs, movie directors and even taxi drivers in the conduct of their respective commercial activities.[37]

A collecting society is also established under the Copyright Act[38] and is responsible for:

  1. promoting, representing and protecting the interests of its members;[39] and
  2. collecting and distributing the royalties and other remuneration accruing to its members.[40]

With the above description of the most relevant copyright laws protecting musical works in the Gambia, this research paper will next explain how these copyright laws are currently infringed in the Gambia.

Infringements of Copyright Laws Protecting Music

This section of this research discusses the most common forms of music copyright infringements in the Gambia, detailing how these infringements occur, and who commits them.

Piracy

On the 15th of February 2018, it was reported in the Point Newspaper that 32 accused pirates had been arrested for allegedly ‘re-doubling the CD music’ of Gambian artist Jaliba Kuyateh for sale to the general public.[41] As a matter of personal practice, Jaliba Kuyateh released 5000 copies of his new album into the market on the 26th of January 2018, but had only sold 26 copies since then, which is perhaps a meagre return for an artist whose music has been playing at ‘every nook and cranny of the country’ since its release.[42]

The above is one example of Gambian artistes not being able to enjoy the fruits of their labour because of pirate activities. The Piracy of Gambian music has occurred since the inception of the Gambian music industry in the early 1960s.[43] By the early 2000s, it had become endemic, with the growth in the popularity of CD/DVD technology, pirates could now easily make thousands of copies of an artist’s work using CD-burning technology.[44] Some have argued that in the early 2000’s, piracy was a necessary evil due to the fact that Gambian artistes, due to limited finances, were not able to publish ‘anything more than 500 to 1,000 copies’ for the market. As such, if the genuine copies were inadequate to fulfil the demand of the consumers, the pirated copies filled in the gap.[45]

Music piracy refers to “the copying and distributing of copies of a piece of music for which the composer, recording artist, or copyright holding company did not give consent”.[46] Music piracy in the Gambia occurs in four ways.[47] The first of which is counterfeiting; which is the unauthorised copying of the sound, artwork, label and packaging of the original recording with the goal of misleading the consumer into believing they are purchasing the original recording.[48] This form of piracy is however very rare in the Gambia as it requires sophisticated technology to carry out and costs a lot more to execute.[49]

The second form of piracy is photocopying which involves illegally duplicating legitimate publications of music into pirated CDs/VCDs/DVDs for sale and distribution.[50] The packaging and presentation of the duplicate copies in most cases look nothing like the legitimate release, even though the contents it bears may be the same as the legitimate commercial release.[51] This is the most common form of piracy in the Gambia and the most profitable.[52]

For example, an illegal trader or pirate could buy the legitimate copy of a Gambian artist’s work for 150 Dalasi ($3), and buy 100 blank CD’s for 15 Dalasi each which sums up to 1500 Dalasi ($30), for 100 pirated copies of the Gambian artist’s work, through the use of freely available internet software. The pirate could then sell each pirated copy for 50 Dalasi ($1), and would eventually generate a total revenue of 5000 Dalasi ($100) and a high profit margin for every one hundred pirated copies sold. This common concept of piracy is practiced in popular Gambian market places in Serekunda, Banjul and Brikama, where illegal copies are sold by traders, vendors and even small recording studios.[53]

The third method of piracy is called bootlegging: “This is the recording, duplication and sale of a performance such as live concert or broadcast (radio & TV) without the permission of the artist or the record company which owns the rights to the artiste’s performances.”[54] Live performances by Gambian artists are generally poor however, as most of them lack the experience of playing with live bands.[55] As a result, the sale of record copies of live performances, TV and Radio broadcasts pale in comparison to pirate copies of studio recordings which are digitally tweaked and auto-tuned to improve the sound.[56]

The final form of Piracy is peer-to-peer file Sharing. This involves the distribution of digital media over a ‘P2P’ network, in which the files are located on individuals’ computer and shared with other members of the network.[57] This method of piracy was developed back in 1999 with the file-swapping website ‘Napster.com,’[58] which was a website designed ‘to facilitate the exchange of music between his friends using compressed digital media files called MP3s.’[59] In the Gambia, popular file-swapping websites like ‘emp3e.com’ and ‘tubidy.com’ can be used to download Gambian music for free.[60] In addition to this, the Gambia has one of the highest mobile phone concentrations in the world,[61] with file-swapping technology found on almost every phone being manufactured.[62] This has made file-swapping of Gambian music much easier. Furthermore, advancements in technology have seen the growth in popularity of file-swapping applications like ‘Xender’, which can be used to share music files between mobile devices (phones, tablets and laptops) in record speed.[63]

The impact of the peer-to-peer file sharing phenomenon is of greater significance to the Gambian music industry than bootlegging, counterfeiting and pirating, as unlike the others, it creates the perception that Gambian music is of no monetary value, [64]and can be acquired for free with the help of a computer device. This phenomenon is however not unique to the Gambian music industry. Big music corporations like ‘Sony Music’ have been fighting against peer-to-peer file sharing websites and networks since 1999 with very little success.[65] Whenever a music corporation gets a court order for a file-swapping website to shut down,[66] more file-swapping websites pop up. Between 1999 when the first file-swapping website began operations and 2002, there were approximately 58 different file-swapping programs available online.[67]

The challenge this phenomenon poses to the Gambian music industry, is finding a way to stop music users from accessing these file-swapping websites in the Gambia and encouraging them to purchase more genuine copies of Gambian music. Many other music industries have tried and failed to achieve this,[68] however recommendations are made in part four of this research on how this could be achieved in the Gambia.

Payment of Royalties

Music royalties are essentially the payments received by artists when their material is featured in some public capacity, such as advertisements, film or streaming services.[69] The Gambia has a poor history of music royalty collection, and currently has weak royalty collection institutions. For example, prior to 2004, payment of royalties was non-existent, as there was no Copyright Law that provided for this.[70] The coming into force of the Copyright Act in 2004 mandated the creation of the ‘Collecting Society of The Gambia’[71], whose task would be the ‘collecting and distributing of royalties among members’.[72] However it wasn’t until May 2013 that ‘the nine-member board’ of the Collecting Society was fully constituted and began work, albeit in the face of mounting challenges that included a lack of finance to implement its work plan.[73]

Mechanical Royalties

There are mainly two types of music royalties payable in the Gambia. The first is ‘Mechanical Royalties’: These are royalties paid ‘to a songwriter or music author whenever a copy of one of their songs is made’ in physical format including vinyl, cassette, and CD/DVD productions.[74] These royalties are not to be gathered by the Gambian Collecting Society, as they are individually negotiated between the music authors and the record labels they are signed to.[75] There are however very few record labels in the Gambia,[76] with ‘Jollof Arts’ record label being the most notable.[77] Record labels are the copyright holders of the music that the artist makes,[78] and are also responsible for the costs of production, marketing and distribution of the artist’s work,[79] as well as paying royalties (an already agreed on percentage of every sale made) to the artist as a reward for their work.[80] Most Gambian artists are not signed to a record label however, since there are very few in operation in the Gambia. These unsigned artists release their work through recording studios like the ‘Xalam Studio’[81], and bear the costs of production (this may include fees for recording sessions), whilst also being solely responsible for the marketing and distribution of their music, and the associated costs.[82] Many of the Gambian artists who cannot afford to finance the release of their music therefore seek sponsorships from individuals, companies and institutions.[83]

What this system has created over-time is a large group of independent Gambian artists who are unable to finance the release of their own music,[84] and are thus open to exploitation from corrupt sponsors and investors that might take a bigger percentage of the sales than they are entitled to - leaving the artist unable to adequately benefit from the profits of their work, by paying very little in terms of royalties.[85] In 2013, phone network company Africell, a sponsor of Gambian artists like ‘Mighty Joe’ and ‘Manding Morry’ refused to share the revenue from the sale of songs by Gambian artists through its ringtones service.[86] Some of the songs ‘Africell’ used in this service are songs of artists that it sponsors. One affected artist called on his colleagues to be “watchful of companies that do not have the artists’ interests at heart” and that “would seek to exploit them.”[87] 

This paper argues that the above problem is best remedied through the establishment of numerous competing record labels, which would not only be responsible for funding the production of Gambian music, but would also be better equipped at marketing and distributing the music to the Gambian consumers than individual artists and their sponsors, whilst offering competitive royalty packages for their work.

Public Performance Royalties

The second type of music royalties are ‘Public Performance Royalties’. These royalties are the most common and wide-reaching royalties in the Gambia,[88] and are ‘royalties paid on every performance of copyrighted music’.[89] This can include, but is not limited to, airing music on radio, live performances, performances recorded for film or television, and playing copyrighted music over stereos in public spaces.[90] The Collecting Society of the Gambia is responsible for collecting and distributing Public Performance Royalties to its members,[91] but as a limited institution, it has been unable to effectively carry out this function, since its formation in 2013.[92]

There is an implied duty for radio stations, TV stations, hotels, clubs, DJs and others, to comply with public performance royalty payments, as it deemed unfair by Gambian copyright law for an artist’s work to be publicly used, especially in the conduct of commercial activities, without being rewarded for the benefits that may arise from that use.[93] Some radio stations in the Gambia have argued that they should be exempt from paying royalties because the air play they give to Gambian music and Gambian artists promotes their music and boosts sales.[94] However, this argument fails to justify an exemption on royalty payments, due to the fact that the sale of Gambian music has continuously dropped over the years,[95] and – as described earlier in this paper - the fact that radio air play contributes to piracy through ‘bootlegging’.[96] 

The Collecting Society of the Gambia should keep track of the royalties owed to the artists by requiring all radio stations in the Gambia ‘to keep a log of the songs they play for a set period each year,’[97] and demanding that all TV stations keep cue sheets - a list of every song that is played on the network, as well as when it is played and for how long.[98] The Gambia Radio and Television Service (GRTS) is the only local TV service in the country,[99] and it airs Gambian music through programmes such as ‘FILA’, ‘African Mix’, Goudi Samdi’ and ‘Dial GRTS Request show’.[100] Keeping track of music played in other spheres such as in taxis and by DJs would prove a much more daunting task for the Collecting Society, but essential in protecting Gambian artists, and an achievable one if the right methods are deployed.

In his article ‘Copyrights and Music Royalty Collection in The Gambia’, the Director of Copyrights, Mr Hassoum Ceesay argues that Gambian artists should be at the forefront of the implementation of the Collecting Society Mandate.[101] In his argument, he uses the Senegalese music industry as an example to show that a successful ‘Collecting Society’ is one run by the artists themselves.[102] This paper concurs that Gambian artists may have to take similar steps in creating an effective Collecting Society in order to start reaping the rewards of ‘Public Performance Royalties’ in the Gambia.

Effects of Copyright Infringements on the Gambian Music Industry

In continuation of the discussion above, this paper will now examine three predominant, different effects that music copyright infringements have on the Gambian music industry.             

Loss of Potential Income

The biggest effect of copyright Infringements on the Gambian music industry is the loss of potential income.[103] People get into the music business, specifically the Gambian music industry, to earn a living.[104] They seek to utilise their various musical talents to gain meaningful employment and earn enough money on a regular basis to support their art and their families.[105] Since its inception the Gambian music industry has been unable to generate enough revenue to boost growth in the industry, with most of the money being lost due to endemic piracy, peer-to-peer file sharing and poor royalty collection mechanisms, as indicated above.[106]

There are more pirated copies of Gambian music in the market place than genuine authorised copies,[107] with revenue from the sales of such illegal pirated copies benefitting only the law-breaking pirates, rather than the music industry itself.[108] ‘Performance Royalty’ collections in the Gambia are potentially worth upwards of 7 million Dalasi ($140,000) annually;[109] potential revenue currently being lost by the music industry due to the poor collection mechanisms in place. The peer-to-peer file sharing of Gambian music has also caused the industry substantial losses, with music users usually preferring to download for free from the internet or just digitally copy from another device rather than go to the stores to buy a legitimate copy.[110] There are no estimates as to how much the Gambian music industry has lost to the peer-to-peer file sharing due to the various difficulties involved in tracking the activities of users in the Gambia.[111]

In the past Gambian artists made a good percentage of their income through sales of recorded copies of their music,[112] but sales have steadily dropped in the past few years, due to piracy and online sharing, which affects the earnings of not only the artists but also the recording studios as well as the record labels.[113] In 2013, ‘Sunland Music Studios’- producers of hit Gambian songs like ‘Bul Falleh Nyee’ by Gee and ‘We Must Rebel’ by Rebellion - shut down operations, with its CEO Mr Hakim stating that the studio faced numerous problems during its existence, chief of which was the difficulty in selling records.[114] The closure resulted in the loss of jobs of the producers, sound mixers and technical assistants that worked with the studio.[115] Gambian artists are also known to have quit the industry as they deem it not profitable enough. Popular Gambian Artist Gee, who is considered by many as one of the biggest stars of the Gambian music due to his collaborations with international stars like Wiz-kid and Demarco,[116] quit the industry in 2015 by famously stating “Gambian music is wasting my time because it is not paying my bills, does not pay my daughter’s tuition and can’t get me the proper contacts I need”.[117]

The Gambian music industry can take solace in the fact that the fall in sales of recorded copies of music leading to a loss of income is a global problem affecting not only the Gambian music industry, but a good number of other music industries worldwide.[118] The Recording Industry Association of America, which is made up of large companies that oversee the recording and distribution of music,[119] reported in 2016 that sales of recorded music had dropped by almost 50% since 1999 resulting in financial losses of 12.5 billion US Dollars, and over 70, 000 people losing their jobs.[120] These people include artists, songwriters, producers, engineers, technicians, marketing support and promoters.[121]

The loss of income in the Gambian music industry as well as the Global music industry as a result of various copyright infringements has led to artists as well as record labels seeking other forms of revenue generation to stay in business. This has led to the second biggest effect of copyright infringements on the Gambian music industry that is next examined.

Dependence on Live Performances

The dependence on live performances by Gambian artists is a direct attempt to rectify profits that have resulted from the loss of potential income caused by copyright infringements.[122] Performing live with a band before a paying audience is one of the means through which  Gambian artists make money off their music in order to make up for the loss of income caused by Copyright infringements.[123] Piracy, Bootlegging and Peer Sharing do not affect revenues generated from live performances, and in fact, research has shown that music piracy is directly responsible for artists increasing the amount of live performances they make in order to boosts revenue.[124] Gambian artists, as a result, have been hitting the stage more often in the past few years than they did in the past.

Residencies are the most common providers of live performances of Gambian music, and these are commonly found in the tourism area of Senegambia.[125] Hotels, restaurants and bars usually hire Gambian artists to perform with resident bands and these artists are either paid a regular monthly salary, or are paid per performance,[126] both of which are a more guaranteed and consistent source of income when compared to selling records. Music festivals like the ‘Open Mic’ festival also provide artists the opportunity to perform live, but these sorts of festivals are rare and usually occur once each year,[127] making these festivals an unreliable source of live performance revenue for the artists. Gambian artists also perform live in social events like naming ceremonies, weddings and gala dinners, where they would not only get paid performance fees but may also receive generous tokens from guests who enjoy the performance.[128]

Some artists also perform in concerts at popular venues like the Independence Stadium and Pencha Mi Hall, pulling in thousands of spectators.[129] However, only a few Gambian artists like Jaliba Kuyateh manage to sell out concert tickets easily, whilst many other artists struggle to achieve the same level.[130] Gambian artists have lately relied so much on crowd-pulling performances that it is now commonplace for an artist to give out copies of his music for free to those who buy a concert ticket.[131] In essence, this study argues that a ticket to a live performance by a Gambian artist carries more value than a copy of recorded Gambian music. The notion that concert tickets have become more valuable than recorded music is one that rings true in the global music industry. For example, in 2016, all the top ten earning artists for that year earned significantly more money from touring and performing live than they did from record sales,[132] with the highest earning artist Beyoncé generating 54.7 million US Dollars from touring, whilst earning a modest 4.3 million US Dollars from record sales.[133] 

Despite their dependence on live performances to boost income, most Gambian artists have struggled to make it in the live music scene and have in turned blamed the influx of Senegalese artists into the live music scene for their struggles.[134] Senegalese music is very popular in the Gambia; some may argue that its popularity in the Gambia surpasses that of Gambian music.[135] Senegalese artists generally sing in Wollof, which is the one of the most widely spoken local dialects in the Gambia,[136] and the genre of Mbalax is one that cuts across both music industries of Senegal and the Gambia.[137] The malice Gambian artists have against performing Senegalese artists stems from the fact that Gambian promoters would rather bring Senegalese artists all the way from Senegal to perform live in the Gambia than hire Gambian artists.[138] During the Christmas period of 2017 alone, there were 15 different high-profile Senegalese artists and bands performing live in different concert venues in the Gambia.[139] In his paper ‘Music piracy in the Gambia’, Mr Hassoum Ceesay argues that Senegalese music suffers from piracy in the Gambia as much as Gambian music does.[140] If so, then this paper argues therefore that Senegalese artists perform live in the Gambia to make up for the loss of income stemming from copyright infringements their music suffers from – just like Gambian artists do.

The solution to this is finding mechanisms through which piracy of Gambian music can be curtailed in the Gambia and to see to it that royalty payments are paid to the artists in order to lessen the dependence on live performances to generate income. Recommendations as to how this can be achieved are provided in part four of this research.

Illegal Export of Gambian Music

The third major effect of copyright infringements on the Gambian music industry is the illegal and unauthorised export of Gambian music to foreign markets. The illegal export is perpetrated by pirates selling unauthorised copies of music in foreign markets[141] and by file-sharing websites where music can be downloaded at no cost from any country in the world.[142] Pirated copies of Gambian music can be found in neighbouring countries like Senegal and Guinea Conakry and –as mentioned earlier- websites like ‘emp3e.com’ and ‘tubidy.com’ can be used to acquire Gambian music from anywhere in the world.[143] This form of export of Gambian music is illegal because it is done without the knowledge and/or the authorisation of the copyright holder.[144] In addition, the financial rewards of this form of export, if any, do not go to the artists, record labels or the music industry but rather go to the perpetrators of this illegal activity.

Export revenue is vital to any music industry in the world. In 2015, export revenue accounted for more than half of the Gross Value Added (GVA) to the UK music industry; [145] however the Gambian music industry has been unable to capitalise on the export potential of Gambian music and some have argued that the music industry does not have the capacity to export its own music to foreign markets.[146] This is because Gambian record labels are primarily focused on breaking into the Gambian market and usually sell records only in the Gambia.[147]

There currently exists a high demand for Gambian music internationally,[148] and when this demand is not met by the industry, some consumers may resort to either downloading Gambian music from file-sharing websites or buying pirated copies from dealers found in their country.

Gambian music is currently legally exported through overseas touring. Artists who want to export their music to a foreign market would have to go on tour and perform live before a foreign audience.[149] Several Gambian artists have set out on tours over the years, crossing different countries and continents. One of such well-travelled Gambian artist is Sona Jobarteh, who has performed in countries like Brazil, India, Ghana, South Korea and Switzerland.[150] Other Gambian artists however have not had much success in trying to export their music, with some facing issues like visa denials and lack of funds to cover travel and accommodation costs.[151] In 2017, two Gambian artists named ST and Bai Babou were denied visas to perform in the United Kingdom, leading to comments by a Gambian artist who stated that due to the constant visa denials by various embassies, it would be “nearly impossible for artists to export our country’s culture”.[152] ST and Bai Babou may have been unable to tour the UK in order to export their music, but consumers of their music in the UK can still acquire and enjoy the music they make by illegally downloading it through file sharing websites.  It can therefore be inferred that copyright infringements like piracy and peer-to-peer file sharing have succeeded in achieving something the Gambian music industry has struggled to achieve: the easy export of Gambian music, albeit illegally, into foreign markets worldwide.

The Gambian music industry would however struggle to curb the illegal exporting of Gambian music through file sharing sites and by pirates, as it would require international co-operation with foreign countries in which pirated copies of Gambian music has been found or is being illegally downloaded. It would also require the Gambia to do its part in fighting the illegal importation of foreign music, something which it currently lacks the capacity to do judging from the presence of pirated copies of Senegalese and Nigerian music in Gambian markets,[153] and the availability of a wide range of foreign music online for download in the Gambia.[154]

Recommendations

This final part of research will provide recommendations as to how to solve some of the copyright problems plaguing the Gambian music industry, in response to the issues outlined.

Introduction of New Control and Regulation Measures

This paper suggests that new control and regulation measures be introduced to combat copyright infringements. These new measures can be contained in an amended version of the 2004 Copyright Act, which some have argued is long overdue for an amendment because it fails to cater for the developments in piracy techniques that have occurred since 2004. Firstly, in order to prevent the counterfeiting and photocopying of authorised copies of Gambian music, a policy mandating the issuance and enforcement of holograms and a watermarking system of tracking CDs would be vital.[155] The Gambia has never enforced any anti-piracy devices such as holograms,[156] and is yet to enforce the Economic Community of West African States (ECOWAS) common hologram which was agreed upon by ECOWAS culture ministers in 2010.[157]

Holograms refer to the “shiny, metallic patterns with ghostly images floating inside them” that can be found on CD/DVD cases, credit cards and on banknotes.[158] They are very difficult to reproduce and so help defeat any attempt at counterfeiting.[159] A hologram can also help convey to the purchaser that the item (copy of music CD/DVD) that he/she is buying is an authentic authorised copy. Digital watermarking on the other hand is a compression technology used to encode within the digital format data about the author, the copyright date, and permitted uses of the material.[160] It is great tool for tracking infringers, identifying them and assessing a royalty fee for the unauthorised use of the copyrighted material.[161] As such, this paper recommends that new regulations be put in place that would require all authorised recorded copies of Gambian music to either bear holograms or be embedded with digital watermarking technology.

With regards the online file sharing of Gambian music in the Gambia; this paper argues that employing the litigation approach would not be a viable solution to the problem of online piracy and file sharing in the Gambia. In the early days of the peer sharing phenomenon, the American music industry employed the litigation approach and went after peer sharing websites by seeking court orders to have them shut down.[162] The American music industry also went after individual infringers by seeking compensation for the illegal use of their works.[163] The music industry however realised that shutting down peer sharing websites only led to more peer-sharing sites popping up – as mentioned earlier – and that suing thousands of individual infringers was an expensive and time consuming venture that brought about very little rewards.[164] Recently however, the American music industry in collaboration with internet service providers like Verizon and AT & T,[165] have implemented more practical measures to reduce online piracy and file-sharing, these include: providing warnings in the form of pop-up messages to subscribers attempting to download music illegally.[166] Slowing down the internet speeds of subscribers attempting to download music illegally, and even temporarily blocking persistent infringers from having access to the internet.[167]  All of these practical control measures could also be implemented in the Gambia with the help of internet service providers.

Creation of Better Distribution Channels for Gambian Music

This paper also recommends the creation of better distribution channels for Gambian music by the music industry. Distribution is a very important aspect for any viable industry and where this is lacking, it is certain that the survival of that industry is shaky.[168] As mentioned earlier – Gambian artists have continuously struggled to get authorised copies of their music into the local and international market,[169] which has resulted in high piracy rates of Gambian music both locally and internationally.[170] Research has shown a direct link between effective ways of distributing music and a drop in the high rates of music piracy.[171] For example, Sweden, which is home to Pirate Bay - a file sharing website where music can be illegally downloaded for free - had “sky high piracy rates” until Spotify – an authorised digital music streaming service – was launched in 2008 resulting in piracy rates of music falling “off a cliff” in Sweden.[172] The researchers of this study have therefore concluded that people are far less likely to pirate music if there exists easy, effective and innovative ways through which they can legally access music.[173]

This paper concurs with the above conclusion and further argues that the same could apply to the Gambian music industry. Spotify and other world renowned streaming services may not be popular in the Gambia, however, similar streaming services which would only be dedicated to Gambian music could be created to serve the purpose of distribution of Gambian music in the Gambia. These streaming services could potentially be available in international markets as well for consumers of Gambian music living outside the Gambia.

For consumers who prefer physical copies of Gambian music or who may find it hard to navigate the digital world, music retail stores could be built in strategic locations in the Gambia by record labels or private investors to ensure easy access to purchasing physical copies of Gambian music. Record labels in the Gambia could also distribute physical copies of Gambian music internationally by collaborating with other record labels found in foreign markets that would distributes these copies of Gambian to consumers in that territory on behalf of the record labels in the Gambia. For example, Interscope Records – an American record label - distributes the releases of Polydor Records in the USA, and Polydor Records – a British record label – does the same for Interscope Records in the UK.[174] Through these methods the Gambian music industry would not only solve its problems of distributing Gambian music, but would also in the long run, potentially reduce the piracy rates in the Gambia.

Education and Public Awareness

This paper recommends that education should not be overlooked as a tool to fight copyright infringements. It is important to create awareness and ensure public education about piracy and other copyright issues.[175] This can be done through an anti-copyright infringement campaign on popular media like TV, radio and social media. If and when the campaign becomes viral, a large number of Gambians would then become aware of the dangers of buying pirated music, downloading music illegally and the negative effects these have on the music industry. An example of such a campaign is the ‘Music Matters’ online campaign which was pioneered by Niamh Byrne of Universal Music.[176]

The ‘Music Matters’ campaign features advice on legitimate ways of purchasing music as opposed to illegal downloading and piracy,[177] and a similar campaign could be launched in the Gambia using affected Gambian artists to tell stories of how various copyright infringements have affected their careers and livelihoods, as well as provide advice on what steps the public can take to bring an end to this epidemic. The campaign could be launched through various adverts on radio, TV and social media, and could also be given coverage through popular talk shows and news bulletins. This paper argues this would be the most effective way of educating the public and raising awareness on copyright infringements and the negative effects thereof, due to the fact that it would reach the greatest amount of people in the Gambia.

The topic of copyright infringements could also be incorporated within the school curriculum in tertiary institutions for courses like computer science, law, mass communication, and all creative arts courses.[178] Through this method, a good number of people would acquire a detailed understanding of how copyright infringements occur and gain knowledge on how it can be prevented or curtailed. Education and public awareness can also be raised through seminars, symposiums and workshops.[179] The Copyright office under National Centre for Arts and Culture (NCAC), the body mandated to enforce copyright laws in the Gambia,[180] has employed this method for many years by organising numerous workshops and seminars to “bring salient copyright issues to stakeholders to stakeholders drawn from across the creative arts scenes in the Gambia”.[181]

This paper however argues that seminars and workshops are the least effective way of raising public awareness because whilst a viral campaign would raise awareness among hundreds of thousands of Gambians, and incorporation of copyrights into the curriculum of tertiary institutions would educate thousands of tertiary students on copyright issues, workshops and seminars on the other hand only educate and raise awareness among a handful of people at a single time. This paper therefore suggests that the NCAC gives greater consideration to both creating an anti-copyright infringement campaign and incorporation of copyrights into the curriculum of tertiary institutions.

Embracing the New Gambia

The final recommendation this paper makes is for the Gambian Music Industry and its artists to embrace the ‘New Gambia’.[182] The ‘New Gambia’ is a slogan meant to represent the new found freedom Gambians now enjoy under the newly elected government of President Adama Barrow.[183] With the rise of civil society organisations and pressure groups in the ‘New Gambia’ who now have the power to influence policy decisions,[184] the Musicians Union of the Gambia (MUSIGAM), whose mandate is to eradicate piracy in the country for the interests of musicians in the Gambia,[185] must now capitalise on this newly found influence to lobby the government to enforce policies that would benefit the music industry. Gambian artists must also use their voice in this new found democracy to voice out their grievances against various copyright infringements and to critique the government of the Gambia if it continues to show apathy towards the plights of the members of the music industry. 

This paper argues that the government of the Gambia has a massive role to play in the promotion of Gambian music and the fight against copyright infringements in the Gambia. This includes but is not limited to; the implementation and enforcement of copyright-related policies through its various agencies or departments, and the provision of funds to not only combat piracy but also boost growth in the industry.

Under the dictatorial regime of former president Yahya Jammeh, pressure groups were very ineffective, and self-censorship was rife due to the fact that any opposition to government policies was usually met with lethal force or threats thereof.[186] The former president was known to donate large sums of money, ranging from 250,000 Dalasi ($5000) to 500,000 Dalasi ($10000) to certain Gambian artists who had composed and performed songs of praises to him,[187] whilst artists who attempted to criticise the former president and his government through their music had to flee into exile.[188] The government of former president Jammeh also did very little to boost the growth of the Gambian music industry as a whole and made very little efforts in fighting endemic copyright infringements of Gambian music in the Gambia, resulting in the frustration of many Gambian artists with the status quo of the industry.[189]

In the ‘New Gambia’, the Gambian music industry now has an opportunity for growth, a chance to have its voice heard, and a chance to influence the policies that would boost its growth.[190] The Gambian music industry through its unions, associations and artists must therefore seize the opportunity this new found democracy has presented in order to ensure the current and future generation of Gambian musical acts do not continue to suffer from the same copyright problems endured by the past generations.

Conclusion

Copyright laws and the enforcement thereof may have come a long way since the advent of the Gambian music industry in the 1960’s but still has long way to go to provide proper protection for copyrighted material belonging to the authors. This paper exposed the fact that despite the existence of numerous copyright laws that give an array of rights to the authors of copyrighted material (which includes music), infringements still occur on a massive scale in the Gambia. Copyright laws seek to ensure that an author or copyright holder enjoys the moral and economic benefits of his creation, whilst copyright infringements seek to deprive the copyright holder of these benefits.

This paper made clear that the three biggest copyright problems the Gambian music industry faces are piracy; online file sharing and poor royalty collection mechanisms. Each problem with its own unique set of features highlighted to show the dangers they pose to the Gambian music industry. Piracy in all its three forms (counterfeiting, photocopying and bootlegging) attaches some monetary value to Gambian music, albeit a lesser value than should be. Online file sharing however creates the belief that Gambian music is valueless since it can be obtained for free by illegally downloading; whilst poor royalty collection mechanisms foster the notion that organisations (like radio & TV stations) owe no duty to pay artists for the public use of their work.

The effects are devastating on the Gambian music industry, with the loss of potential income, dependence on live performances and illegal export of Gambian music being the most prominent. Other knock-on effects include loss of employment, loss of morale and a lack of incentive to invest in the music industry in the Gambia. It is up to the Gambian music industry to take up the fight against copyright infringements, and to accomplish this, certain measures were proposed. Technology is being used to infringe on copyrights in the Gambia, therefore technology should also be used to prevent such infringements through the introduction of holograms and digital watermarking technology. It is clear that the courts are not the best place to fight copyright infringements that occur over the internet, and that internet service providers should not be held responsible for the infringements that occur online in the Gambia, however internet service providers have a great role to play in implementing innovative ways of curbing illegal file sharing online.

Education to promote awareness of the problem of copyright infringement will help generate support for the importance of protecting copyrighted works in the Gambia, whilst creating distribution channels for authorised music will help render invalid the argument of copyright infringement as a result of necessity which was propounded in the article ‘Music Piracy in the Gambia. If the Gambian music industry had an excuse in past for not being very assertive about its intellectual property rights, it has none now under this new democracy. The Gambian music industry stands to benefit the most if copyright enforcement can lead to a significant drop in copyright infringements affecting the industry, and as such, must be at the forefront of protecting its interests and that of its members. It is only through this that Gambian music would reach its full socio-economic potential. 

Footnotes

[1] D Bainbridge and C Howell, Intellectual Property Law (4th edn Pearson LawExpress, Harlow 2015) pg. 4; World Intellectual Property Organisation, Understanding Copyrights and Related Rights (2nd edn WIPO, Geneva 2016) pg. 3-4

[2] Copyrights Act 2004, s 3 and 4

[3] Ibid, s 5(2); Copyright House, ‘List of Berne Convention Signatories’ (2018) http://copyrighthouse.co.uk/copyright/countries-berne-convention.htm accessed 22 January 2018

[4] J.A.L. Sterling, Intellectual property rights in sound recordings, film and video: protection of phonographic and cinematographic recordings and works in national and international law (Sweet and Maxwell, London 1992)

[5] Supra no.2, s 7

[6] Supra no. 2, these include s. 23, s. 38-49 and s. 50-53

[7] O Drammeh, ‘The Gambian recording industry’ (Music in Africa, 27 July 2015) http://musicinafrica.net/magazine/gambian-recording-industry last accessed 22 January 2018

[8] National Centre for Arts and Culture, ‘Gambian Music’, para 1(2017) http://ncac.gm/music.php accessed 22 January 2018

[9] Ibid, para 2

[10] Ibid, para 6

[11] H Ceesay, ‘Music Piracy in The Gambia’ (Music in Africa, 12 January 2016) available at http://musicinafrica.net/fr/node/14606 last accessed 23 January 2018

[12] Ibid, para 15

[13] Ibid, para 4 and 5

[14] H Ceesay, ‘Copyrights and Music Royalty Collection in The Gambia’ (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/copyrights-and-music-royalty-collection-gambia last accessed 23 January 2018

[15] P.O. Joof ‘Why isn’t the Gambian Music Industry Growing? Ifang Bondi’s Badou Jobe Explains’ available at https://gambiantalents.com/index.php/news-updatesentertainment/258-why-isnt-the-gambian-music-industry-growing last accessed 23 January 2018

[16] Copyright Act, Section 4(c)

[17] Ibid, Section 42(1)(a)

[18] S Karapapa, Private Copying (Routledge, New York 2012) 35

[19] Ibid, Section 42(1)(b)

[20] Ibid, Section 42(1)(c)

[21] Ibid, Section 42(1)(d)

[22] Ibid, Section 42(1)(e)

[23] Ibid, section 53

[24] Ibid, section 52 (b)

[25] Ibid, section 43 (a) & (c); see also S Karapapa, ‘Research and Private Study’ available at http://copyrightuser.org/understand/exceptions/research-private-study/ last accessed 16 February 2018

[26] Ibid, section 43(b)

[27] R Stim, ‘What is Fair Use’ (October 2010) para 3 SUL available at http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use last accessed 16 February 2018

[28] Ibid, para 1

[29] Ibid, section 42(2)

[30] R Stim, ‘Welcome to the Public Domain’ (October 2010) para.1 SUL available at http://fairuse.stanford.edu/overview/public-domain/welcome/ last accessed 16 February 2018; see also Copyright Act, Section 48

[31] Ibid, paragraph 4

[32] F.M. Polak, ‘Copyright and Digital Music Collections in South Africa’ (2009) 69 UKZN; see also Copyright Act, section 7

[33] UK intellectual property office for creativity and innovation (2008) ‘History of copyright’ available at http://www.ipo.gov.uk/about/about-ourorg/about-history/about-history-copy.htm last accessed 15 February 2018

[34] Supra no.11, pg. 69

[35] Copyright Act, s 47

[36] E. A. Martin, Oxford Dictionary of Law (7th edn Oxford University Press, Oxford 2013) 486

[37] Supra no. 14

[38] Supra no. 16, s 66

[39] Ibid, s 66 (4) (a)

[40] Ibid, s 66 (4) (b)

[41] Y. S. Saliu, ‘Police Nab 32 for Illegal Sale of Jaliba’s Music’, The Point Newspaper (Banjul, 15 February 2018) 3

[42] Ibid

[43] Supra no. 8

[44] Supra no. 11

[45] Ibid

[46] Ibid

[47] Y Saliu, ‘Crime Watch: Piracy’, (Africa GM, 2007) available at https://africa.gm/africa/gambia/article/crime-watch-piracy last accessed 17 February 2018

[48] Ibid, para 3

[49] P. R. Paradise, Trademark Counterfeiting, Product Piracy, and the Billion Dollar Threat to the U.S Economy, (Greenwood Publishing Group, 1999) 239-241

[50] Supra no. 31

[51] Ibid

[52]M Barrow, ‘Piracy is a Major Threat to Gambian Music’, Foroyaa Newspaper (Serrekunda, 18 March 2009) available at https://allafrica.com/stories/200903180929.html last accessed 17 February 2018

[53] Supra no. 28

[54] L Marshall, ‘The Effects of Piracy upon the Music Industry: a case of Bootlegging’, (2004) available at http://journals.sagepub.com/doi/abs/10.1177/0163443704039497 last accessed 16 February 2018

[55] Supra no. 15

[56] Ibid

[57] Dartmouth Copyright, ‘Peer-to-Peer File Sharing and Copyright Law’ (2018) available at http://dartmouth.edu/copyright/peer2peer/ last accessed 16 February 2018

[58] K Neely, ‘Music Piracy or a Permanent Passive Revolution: An Examination of the Role of Technology in the Challenge to a Cultural Hegemon’ (2007) UTA

[59] Ibid

[60] See www.tubidy.mobi/search.php?q=gambian+music&sid=  and www.emp3e.com/mp3/Gambian-music.html

[61]R Heeks, ‘Mobile Phone Use in West Africa: Gambian Statistics’, (ICTs for Development, January 2011) available at https://ict4blog.wordpress.com/2011/01/30/mobile-phone-use-in-west-africa-gambian-statistics/ last accessed 16 February 2018

[62] Jaycon Systems, ‘Bluetooth Technology: What has Changed Over the Years’, (September 28, 2017) available at https://medium.com/jaycon-systems/bluetooth-technology-what-has-changed-over-the-years-385da7ec7154 last accessed 16 February 2018

[63] Xender, ‘Xender Enables Mobile File Transfer and Sharing with Zero Data Usage’, (September 9, 2015) available at https://www.prnewswire.com/news-releases/xender-enables-mobile-file-transfer-and-sharing-with-zero-data-usage-300138892.html last accessed 16 February 2018

[64] Net-Names, ‘Technology, Media & Telecommunications’, (2018) para 3, available at https://netnames.com/industries/technology-media-and-telecommunications/ last accessed 16 February 2018

[65]J Warner, ‘Combating Illegal Music Piracy: A Case Study of Warner Music Group’ (2010) American University

[66] See A & M Records v. Napster, Inc., 284 F.3d 1091, 1099

[67]T Wu, ‘Network Neutrality, Broadband Discrimination’, Journal of Telecommunications and High Technology Law, Vol. 2, p. 141, 2003

[68] G Douglas, ‘Copyright and Peer-To-Peer Music File Sharing: The Napster Case and the Argument Against Legislative Reform’, Murdoch University Electronic Journal of Law, vol. 11 no. 1 (March 2004) 107 available at < http://www5.austlii.edu.au/au/journals/MurUEJL/2004/7.html#Conclusion_T last accessed 20 February 2018

[69]Music-bed, ‘The 4 Types of Music Royalties’, (2018) available at <https:// www.musicbed.com/knowledge-base/4-types-of-music-royalties/109 last accessed 21 February 2018

[70] Supra no. 14

[71] Supra no.15, section 66

[72] Ibid

[73] Supra no. 68

[74] H McDonald, ‘Mechanical Royalties’, (November 15, 2017) available at https://www.thebalance.com/mechanical-royalties-2460503 last accessed 21 February 2018

[75] Supra no. 67

[76] Supra no. 70; also see Supra no. 7 and Supra no. 14

[77] Whats-on Gambia, ‘What is wrong with the Gambian music industry? An insider takes a look’, (23 July 2014) available at https://www.whatson-gambia.com/news/headline-news/603-what-is-wrong-with-the-gambian-music-industry-takes-a-look last accessed 23 February 2018

[78] S Monument, ‘UK Music Royalties – Made Easy’, (2018) available at https://www.dittomusic.com/blog/an-introduction-to-music-royalties-in-the-uk last accessed 23 February 2018

[79] Ibid, para 3

[80] Ibid

[81] Supra no. 7

[82] Ibid

[83] Supra no.77, para 24

[84] B Ceesay, ‘Gambia: T Smallz, Baddibunka, Sophia release new singles’ (Music in Africa, 7 August 2017) available at https://musicinafrica.net/magazine/gambia-t-smallz-baddibunka-sophia-release-new-singles last accessed 23 February 2018

[85] Ibid, para 4

[86] B Jeng, ‘Is Gee about to win the battle? Africell call for an emergency meeting after reports of artists exploitation’, (27 August 2013) available at http://whatson-gambia.com/news/headline-news/254-is-gee-about-to-win-the-battle-africell-call-for-an-emergency-meeting-after-report-of-artists-exploitation last accessed 23 February 2018

[87] Ibid

[88] Supra no. 70

[89] Supra no. 74, para 3

[90] Supra no. 70

[91] Copyrights Act 2004, section 66

[92] Supra no. 7o

[93] Supra no. 87, section 38(2) and 47

[94]   N Baldeh, ‘MUSIGAM is disappointed that Copyright is referred to as an impediment to Business’, The Point Newspaper (10 March 2017) available at https://thepoint.gm/africa/gambia/article/musigam-is-disappointed-that-copyright-is-referred-to-as-an-impediment-to-business last accessed 23 February 2018

[95] Ibid, para 5

[96] Supra no. 54

[97] H McDonald, ‘How Performance Rights Royalties Are Tracked’, (23 April, 2017) available at https://www.thebalance.com/how-performance-rights-royalties-are-tracked-2460922 last accessed 23 February 2018

[98] Ibid, para 5

[99] O Drammeh, ‘Music in the Gambian Media’, (30 July 2015) available at https://www.musicinafrica.net/magazine/music-gambian-media last accessed 23 February 2018

[100] Ibid, para 6

[101] Supra no. 70, para 15

[102] Ibid, para 16

[103] N Baldeh, ‘Gambia Music Industry is Certainly Growing but’, The Point Newspaper (27 June 2014) available at http://thepoint.gm/africa/gambia/article/gambia-music-industry-is-certainly-growing-but last accessed 5 March 2018

[104] S Camara, ‘Gambian Culture Minister: Copyright Backbone of Culture Industry’, (6 January 2018) available at https://gambiabeat.wordpress.com/2014/01/06/gambian-culture-minister-copyright-backbone-of-culture-industry/ last accessed 5 March 2018

[105] Ibid, para 6

[106] Supra no. 44

[107] Supra no.52

[108] Ibid, para 3

[109] S Camara, ‘Gambia’s copyright industry is up to D7 million big’, (January 8, 2014) available at http://gambiabeat.wordpress.com/2014/01/08/gambias-copyright-industry-is-up-to-d7million-big/ last accessed 5 March 2018

[110] Supra no. 104, para 8

[111] J Newton, ‘Global Solutions to Prevent Copyright Infringement of Music Over the Internet: The Need to Supplement the WIPO Internet Treaties With Self-Imposed Mandate’, (1999) IND. INT'L & COMP. L. REV [Vol. 12:1]

[112] A Khan, ‘Hakim talks about Gambian Music, Betrayal, Relationship with Gee, Africell Cheating Artists’, (17 July 2013) available at https://whatson-gambia.com/exclusive/223-hakim-talks-about-gambian-music-betrayal-relationship-with-gee-africell-cheating-artists-in-candid-interview last accessed 5 March 2018

[113] Supra no. 11

[114] Supra no. 112

[115] Ibid, para 50

[116] N Baldeh, ‘Gee to quit Music’, The Point Newspaper (26 June 2015) available at https://thepoint.gm/Africa/gambia/article/gee-to-quit-music last accessed 10 March 2018

[117]Foroyaa Newspaper, ‘Gambian Music is Wasting my Time – Says Gee’ (23 September 2015) available at https://allafrica.com/stories/201509241115.html last accessed 10 March 2018

[118] B Andersen et al, ‘Copyrights, Competition and Development: The Case of the Music Industry’ (2000) 145 UNCTAD

[119] N. S. Tyler, ‘Music Piracy and Diminishing Revenues: How Compulsory Licensing for Interactive Webcasters Can Lead the Recording Industry Back to Prominence’, University of Pennsylvania Law Review [vol. 161: 2101] pg. 2108

[120] J Siddall, ‘The Effects of Illegal Downloading on the Music Industry’, (2018) available at https://marshallmusic.co.za/effects-illegal-downloading-music-industry/ last accessed 5 March 2018

[121]Ibid, para 3

[122] Supra no. 94

[123] Ibid para 4

[124] S C Brown, ‘How Piracy is Changing the Music industry landscape’, The Conversation (22 September 2018) available https://theconversation.com/how-piracy-is-changing-the-music-industry-landscape-31919 last accessed 10 March 2018

[125] N Baldeh and O Drammeh, ‘Gambia’s Live Music Scene’, (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/gambia’s-live-music-scene last accessed 8 March 2018

[126] Ibid, para 6

[127] S Janko, ‘Opportunities for Musicians in the Gambia’, (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/opportunities-musicians-gambia last accessed 8 March 2018

[128]Supra no. 125

[129] Ibid, para 3

[130] Supra no. 8

[131] Supra no. 112, para 11

[132] Billboard, ‘Top 50 makers of 2016’ (13 July 2017) available at https://billboard.com/photos/7865108/highest-paid-musicians-2016-money-makers last accessed 11 March 2018

[133] Ibid, para 1

[134] Supra no. 111

[135] Supra no. 113, para 13

[136] The Standard, ‘Is English a Suitable Official Language for the Gambia’ (19 March 2014) available at https://standard.gm/site/2014/03/19/is-english-a-suitable-official-language-for-the-gambia/ last accessed 11 March 2018

[137] S Janko, ‘Popular Music in Gambia’ (Music in Africa, 23 June 2015) available at https://musicinafrica.net/magazine/popular-music-gambia last accessed 10 March 2018

[138] Music in Africa, ‘Gee: Promoters, Media have Failed the Gambian Music Industry’ (23 March 2017) available at https://musicinafrica.net/magazine/gee-promoters-media-have-failed-gambian-music-industry last accessed 10 March 2018

[139] S Saihou, ‘The Great Senegalese Invasion on New Year’s Eve’ (Music in Africa, 27 December 2017) available at https://whatson-gambia.com/news/headline-news/2118-disgraceful-the-great-senegalese-invasion-on-new-year-s-eve last accessed 10 March 2018

[140]Supra no. 113

[141] W Adedeji, ‘The Nigerian Music Industry: Challenges, Prospects and Possibilities’ (March 2016) International Journal of Recent Research in Social Sciences and Humanities, Vol. 3, Issue 1, pg. 261-271

[142] Supra no. 111

[143] Supra no.60

[144] Supra no. 20

[145] Creative Industries, ‘UK Dominates European Music Sales’ (2016) para 7 available at https://thecreativeindustries.co.uk/industries/music/music-facts-and-figures/export-performance last accessed 14 March 2018

[146] Supra no. 117

[147] Supra no. 7

[148] Supra no. 15, para 4

[149] Supra no. 15, para 5

[150] S Pak, ‘Reawakening Gambian culture through trade-and vice versa’ (27th October 2017) International Trade Forum available at https://intracen.org/news/Reawakening-Gambian-culture-through-trade-and-vice-versa/ last accessed 14 March 2018

[151] B Ceesay, ‘Gambian Musicians refused UK visas’ (Music in Africa, 23 August 2017) available  at https://musicinafrica.net/magazine/gambian-musicians-refused-uk-visas last accessed 14 March 2018

[152] Ibid, para 6

[153] Supra no. 44, para 13

[154] Ibid, para 14

[155] Supra no.111, pg. 150

[156] Supra no. 113

[157] Ibid, para 14

[158] C Woodford, ‘Holograms’ (Explain that Stuff, 5 July 2017) available at https://explainthatstuff.com/holograms.html last accessed 25 March 2018

[159] Ibid, para 1

[160] Supra no. 155, pg. 150

[161] Ibid

[162] Supra no. 58, pg. 48

[163] Ibid, pg. 52

[164] Supra no. 111, pg. 154, para 3

[165]J Martinez, ‘Entertainment industry, Internet service providers roll out anti-piracy system’ (9 March 2013) available at https://thehill.com/policy/technology/287151-entertainment-industry-isps-roll-out-online-anti-piracy-system last accessed 25 March 2018

[166] Ibid, para 11 & 16

[167] Ibid, para 14

[168] Supra no. 141, pg. , para

[169] Supra no. 113, para

[170] Ibid, para

[171] The Copia Institute, ‘The Carrot or the Stick: Innovation vs. Anti-Piracy Enforcement’ (8 October 2015) available at https://copia.is/library/the-carrot-or-the-stick/ last accessed 24th March 2018

[172] M Maswick, ‘The Right way to stop Piracy: From the look-at-the-evidence dept’ (8 October 2015) available at https://techdirt.com/articles/20151007/14402732471/right-way-to-stop-piracy.shtml last accessed 24th March 2018

[173] Ibid, para 6

[174] A Firth, ‘Institution and Ownership of Polydor Records’ available at https://slideshare.net/mobile/AbigailFirth/institution-and-ownership-of-polydor-records/ last accessed 24 March 2018

[175] Ibid, pg. 267, para 9

[176] The Guardian, ‘Music Matters to new anti-piracy campaign’ (24 March 2010) available at https://theguardian.com/music/2010/mar/24/music-matters-anti-piracy-campaign last accessed 24 March 2018

[177] Ibid, para 2

[178] Supra no. 141, pg. 267, para 9

[179] Ibid

[180] The Point Newspaper, ‘NCAC mandated to enforce copyright laws’ (17 February 2012) available at https://thepoint.gm/Africa/gambia/article/ncac-mandated-enforce-copyright-laws last accessed 18 March 2018

[181] Ibid, para 5; also see N Baldeh, ‘Stakeholders brainstorm  Development of Culture and Arts’ (30 November 2015) available at https://thepoint.gm/africa/gambia/article/stakeholders-brainstorm-development-of-culture-and-arts last accessed 18 March 2018

[182] Foroyaa, ‘New Gambia Demands that We Serve the People’, (23 February, 2018) available at https://foroyaa.gm/new-gambia-demands-that-we-serve-the-people/ last accessed 18 March 2018

[183] Ibid, para 1

[184] Index Mundi, ‘The Gambia Political pressure groups and leaders’ (20 January 2018) available at https://www.indexmundi.com/the_gambia/political_pressure_groups_and_leaders.html last accessed 18 March 2018

[185] Music in Africa, ‘Musicians Union of the Gambia: Bio’, available at https://www.musicinafrica.net/directory/musicians-union-gambia-musigam last accessed 18 March 2018

[186] S Jammeh, ‘Gambia: A tale of two Nations in One Country’ (11 June 2012) available at https://dailynews.gm/afric/gambia/article/gambia-a-tale-of-two-nations-in-one-country last accessed 24 March 2018

[187] Ibid, para 5

[188] H Mohamed, ‘Music and Poetry Thrive in The Gambia post-Jammeh’ (6 April 2017) available at https://www.aljazeera.com/indepth/features/2017/03/music-poetry-thrive-gambia-post-jammeh-170313115045976.html last accessed 24 March 2018

[189] Ibid, para 9

[190] Ibid, para 20

 

 

Women’s Rights and National Development in the ‘New Gambia’: A Comparative Study of the Gambian and Nigerian Constitutions

By Esther Aristides, Hamma LL.b (Hons), LL.M. and Faculty of Law Lecturer at University of the Gambia. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Abstract

This paper highlights the rights of women under the 1997 Constitution of the Gambia, the 1999 Constitution of Nigeria and other relevant instruments. It argues that although the Constitution of the Republic of Gambia is protective of women, it has its shortcomings to these issues. This study also discovers obstacles to the realization of these rights. It is argued that women can transform the nation and bring about sustainable development if they are empowered and their potential maximised. This paper concludes by suggesting that the empowerments of women and elimination of discrimination against women are good for the national development of this ‘New Gambia’.

Introduction

Fundamental human rights have been described as rights which seek to define and assert our humanity and human dignity, as well as to provide us with a medium of responsibility in our daily interactions and relationship with both state and our citizens. Women’s rights are an integral part of our fundamental human rights, and consist of significant objective and directive principles of the state policy. The principle of state policy in this chapter shall form part of the public policy of the Gambia for establishment of the just, free and democratic state’’. The aim of this paper is to analyse the laws relating to the protection of rights of women under different legislative provisions, and the obstacles that constrain the realization of these rights and opportunities. It advocates that priority in the allocation of resources for the implementation of human rights and practice should be observed. Laws and programmes that allow violence and discrimination against women should be eliminated. Present and even past Governments have made efforts to enhance women rights in the Gambia by giving the position of the Vice President to a woman, as well as a few other Ministers, and have also allocated some percentage of participation in governance and state policies to women. However, this affirmative action has not completely taken care of the master called discrimination against women.

Women are very instrumental to the development of the society, yet they suffer neglect. They constitute 51% of the total population of Gambia and they have numeral strength, thus improving the status of the women, as they can bring about transformation and enhance the national security system.

Women are the upholders of the society and the managers of homes, they are visionaries and act as mirror to men. In the Gambia, women and children are most hit by human rights violations in comparison to men, as they suffer certain specific forms of violence such rape, some acts of traditional believes, assault and trauma. Women suffer this violence in silence because of the humiliation and isolation by the community due to the stigma associated with being a victim of the crime.

Protection of Women’s Rights under the Constitutions of the Republic of The Gambia and Nigeria

The 1997 Constitution of the Gambia constrains laws which are very important to the realization of women’s right. The Constitution provides for the equal rights of all citizens whether male or female, thus:

“The state shall endeavour to ensure equal opportunity and full participation for women in the economic development of the country’’. 

“National integration shall be actively encouraged whist discrimination on ground of place of origin; sex…shall be prohibited”.

The fundamental objective and directive principle of state policy within the 1999 Nigerian Constitution provides for the welfare of the Nigerian citizen. Section14 (b) provides that the security and welfare of the people of Nigeria shall be the primary purpose of the government. It goes further to state that the participation by the people in their government shall be ensured in accordance with the provision of the constitution⁷. The phase “people of Nigeria” refers to all citizens without discrimination based on set-to both male and female.

Therefore, both Constitutions promote and encourage the formation of association that cuts across ethnic or linguistic, religious or sectional barriers, while section15 (4) purports that the state shall foster a feeling of belonging and of involvement among the various peoples of the federation and that loyalty to the nation shall override sectional loyalties, which means that all men and women in Nigeria should have a sense of belonging and commit their loyalty to the state before their association⁸. This provision makes men and women equal before the law without discrimination.

The Gambian Constitution embodies the economic objectives of the state policy and encourages the harness of the resources of the nation in other to promote natural prosperity, and an efficient, dynamic and self-reliant economy. Subsection 215(1) provides that the national economy is done in such a way to secure maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity. In furtherance of this, Section 215(4) provides that the economic system of the nation will not be operated in such a manner as to permit the concentration of wealth or means of production and exchange in the hands of few individuals or groups, suitable and adequate shelter, reasonable national minimum living wage, old age care, pension and unemployment, sick benefits and welfare of disable shall be provided for all the citizens. The social objective of the state specifically states that the state social order be founded on the ideals of freedom of equality and justice.

Section 216 (4) and section 33 respectively provide that health, safety and welfare of all persons in employment are safe guarded and not endangered or abused, and there is provision for adequate medical and health facility for all persons, without discrimination because sex on any other ground, the evolution and promotion of family is encouraged⁹. As such, there clearly exists an obligation by the state to direct it policy towards ensuring that there are equal and adequate opportunities at all levels.

The Constitution Chapter 4 expressly guarantees and protects the right of women to freedom from discrimination by any form of disability derivation merely by sex, origin, religion and political opinions.

The right of a woman to acquire and own immovable property anywhere in the Gambia is protected in the Constitution. Any person who is aggrieved as a result of violation may apply to a high court of a state for redress. This means that women who are victims of violence and discrimination may apply to a high court for redress by way of fundamental human rights enforcement procedure of the Gambia and under any law that discourages violence discrimination against women. 

The right to acquire and own immovable property should include inherited properties, as women are faced with the problem of inheriting or being part of inheritance after the death of their spouses. Furthermore, “Any woman who is married shall be deemed to be of full age.” In Nigeria, section 29(4) (b) of the 1997 Constitution provides that “any woman who is married shall be deemed to be of full age”. This section should always be read together with section19 (1), which explains what full age means. This is to protect young girls within the ages of twelve and sixteen from been force to marriage.

Lacuna of Provisions that Protect Women’s Rights under the 1999 and 1997 Constitutions

The language of the Gambian Constitution is general in nature, unlike that of the Nigerian Constitution that is mostly masculine. For example, the use of the pronoun “he” refers to the male Section 15(3) of the Nigerian 1999 Constitution, and would protect women if the section was reframed neutrally. The formation of association should instead cut across ethnic, linguistic, religious, gendered and other sectional barriers. Contrastingly, Section 33(1-4) of 1997 Constitution of the Gambia is general in Nature.

It appears the 1997 Constitution seeks to protect vulnerable groups, but does not specially include maternity benefits and leave for pregnant working mothers.

Section 27(1) of 1997 talks about right of marriage but it does not protect women against underage marriage, and makes no reference to age, in only saying ‘full age’ but not stating what that means. By comparison, Nigeria full age means 21 years. The section 9 (1) of the 1999 constitution expanded to read together in determining when a girl is considered to have reached marriageable age.

Women rights in the 1999 Constitution would have been better protected if one of the purposes had been to spell out and include gender equity in the Constitution. Female participation in the Executive Committee and other government bodies of the political party would have been more gender inclusive if the members of the committee were made to reflect gender balance and equity.

Other Instruments for the Protection of Women’s Rights in The Gambia and Nigeria

African Charter on Human and Peoples’ Rights

African Charter on Human and People’s Rights of which Gambia is a member, with the headquarters based in Gambia. This charter was ratified in Nigeria in 1983 which has now become laws of the federation since 1990 though the act came into force on 17th March 1983. The Charter prohibits discrimination and encourages the equity of persons. Article 3 of the Charter provides that every person is equal before the law and everyone is to be protected by the law. Article 19 states that all human beings are equal and they are to enjoy the same respect and equal rights and nobody is to dominate one another person.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

This Convention which has far reaching international outlook on the rights of women is meant to eliminate all forms of discrimination against women in their respective societies. The Articles define discrimination against women as anything that can bring unequal treatment between men and women while carrying out their livelihood.

Universal Declaration of Human Rights 1948 

This Convention states that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience, and should act towards one another in a spirit of brotherhood. Article 2 provides that everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind such as race, colour, sex, language or religion. Article 16 of the declaration also recognises that men and women are entitled to equal rights as to marriage, during marriage and at it dissolution

United Nations Charter

The purpose of the United Nations Charter is to encourage the respect for human rights without distinction because sex. It declared that:

“The United Nations shall place no restriction on the eligibility of men and women to participate in any capacity and under equal conditions”.

Article 2 of the Charter also provides that “Everyone is entitled to all the rights and freedoms set forth in this declaration without distinction of any kind”.

International Convention on Civil and Political Rights 1966

This provides that all individuals are entitled to exercise the rights recognized in the convention without discrimination based on birth, race and sex. The same right is provided under Article 2 of the international convention on economic, social and cultural convention of 1966.

Impediment to Realisation of Women’s Rights

This section has recognised that some practices have continued to affect women’s ability to exercise their rights – as stated by international instruments – in the Gambia. Some of these practices include:

Cultural Practices

Most cultural practices are discriminatory towards women. According to this paper, in most Gambian customs, the male child has an edge over his female counter part from birth through the period of socialisation as the female children are trained to believe that different roles exist for different sexes. The women’s place is to be in the kitchen no matter her level of education. The man is entitled to public life. Marriage and child bearing are considered as great accomplishments in the society. Some of these cultural practices manifest further during widowhood period, child marriage, inability of a woman to own property or inherit property male child syndromes among others.

Traditional Beliefs

Traditionally, the male is believed to have more economic and socio-cultural values. This has widened the disparity between male and female illiteracy. Women have a dress code. They are considered more responsible and decent when they tie wrappers and cover their heads. Women feel it’s their responsibility to uphold and preserve their traditions. 

Another tradition here in the Gambia is the Female Genital Mutilation. FGM/C is a skill driven by deep-seated traditional beliefs. Mothers and grandmothers insist on excising their daughters and granddaughters to prepare them for eligibility of marriage, sometimes the only social security within the community. It is out of love and care for the future of their daughter that this practices is perpetuated. The socialising process which moulds the attitudes of girls and women prepares them to accent pain and suffering as an inevitable part of women’s life, and as an obligation to be observed for acceptance by their respective societies bringing ethnics and gender identity. 

In the Gambia, “prevalence of FGM/C is estimated at 73.6% (UNICEF MICS, 2010), with 1.3 million women having undergone the practice (UNICEF 2013). The prevalence varies widely between regions and across ethnic groups. The regions with higher prevalence are Basse, upper River Region (99%), Mansakonko, Lower River Region (90.6%), and Brikama in Western Region (84.5%). The higher prevalence of the practices is found amongst the Mandinkas, Sarahulehs, Jolas, and Fulas. The percentage of the FGM/C practice declines lightly for women with secondary education and above the practice appeals more common in rural areas than in the urban areas.

There are many religions in Gambia but the common ones are paganism, Islam and Christianity. The practices of these religions do not encourage gender balance. They do not encourage empowerment of women. Women are considered defiled during their monthly menstruation or bleeding during child birth.

Religious Practices

In some Christian ministries or churches women are not ordained as ministers. And Islam women are asked to cover their whole body so that no man sees them and admires them. Muslim men can marry more than one wife, and if you are the younger wife, the children may not respect you they don’t call you mother, yet they call their father ‘father’. All this happens because of discrimination. In pagan practice, if a woman offends the husband she is asked to kill a chicken to ask for forgiveness, but does that mean the man can not offend the woman?

Educational Factors

Women as a group have a very low representation in education. This is responsible for the high rate of illiteracy among particularly rural women. This is affecting their ability to become involved in the development of the ‘New Gambia’ society. Some of the factors responsible for low educational representation amongst women include early marriage, poverty preference of male child and ignorance.

Political Factors

Women do not participate in government nor in the decision-making process. The Gambian societal views about politics have discouraged women from getting involved in it. Only few are either not of child-bearing age, for example with the Vice President of the country. Wives, children of past politicians, widows or divorced persons may not participate in politics for fear of public ridicule.

Women in Sport

Violence against women has no boundary, and clearly affects women’s rights. "Women in sports have experienced sexual advances from men in sports. Gambia women are not an exception". There is a lot of violence perpetuated against women in sport, stemming from questions like why women participate in sports, which is dangerous because we do not always see these attitudes as an offence. People tell female sportspersons, ‘you are always acting like a man’, even among female colleagues, but it is not appropriate to look at women as men or men telling women that this is what women or men can do or cannot do.

Male Child Syndrome

African countries operate the patriarchy system which Gambia too practices, where the male child is preferred to his female counterpart³². This syndrome allows only sons to inherit the property and status of their parents. The discrimination against the girl starts from birth through youthful age to adulthood. The boy asserts more authority in their father’s house than the girls. This practice affects women’s right of freedom from discrimination as provided by the 1997 Constitution and Article 2 of the African Charter on Human and People’s Rights, which emphasises equality of all persons and non-discrimination against any person, irrespective of sex, race ethnicity or religion.

Other practices that affects women’s rights in most of African countries include pregnancy and child bearing which is an exhibit for fertility prowess, where couples are unable to bring forth children, the wife is to be blamed. This contravenes the women’s right of freedom from discrimination as provided under Section 33 (4) of 1997 Constitution and Article 2 of African charters on human and people rights. Additionally, the wife is not only blamed but also the society begins to call her with all sort of names associated to evil things.

Widowhood Practices

Most widowhood practices in the Gambia and in Nigeria are impediments to the realization of women’s rights. These practices are oppressive discriminatory and dehumanizing. For instance, if a woman’s husband dies, she is regarded as a chattel to be inherited by his family members. There is a general assumption under most customary laws that a wife has hand in the death of her husband. In Nigeria, the wife is subjected to some forms of widowhood practices, which are out to either vindicate or convict her. These include ordeals which involve the drinking of water used in washing the corpse of the deceased husband, or some other prepared concoction. These practices violate the woman’s right to dignity of human person under section 28(1) and article (18) and (2).

Child Marriage

A child been defined by the provision of the children and young person’s Act as a person for under age of 14 years. A child marriage is a marriage by or with a person who has attained maturity. In most African rural areas, Gambia inclusive, children are forced into marriage even when they have not attended such marriage able age this is not done voluntarily. The consent of the child is not sought and obtained before giving her out in marriage. These practices offend the child’s right to respect for her dignity of person and personals liberty. And those young girls are often married to persons of their father or even grandfather’s age.

Economic Factors

African women and particularly Gambians constitute about 51% of the population’s productive and reproductive activities like giving birth to children, doing domestic chores, farming to sustain the family, but they still suffer economic powerless like lack the of access to credit and finance. They are also not allowed to own or inherit land, and are denied the right to occupy high profile offices such as presidency. This affects their economic empowerment. They are never made the head only to be an assistant.

Wife Battering

Despite the level of civilization, men still beat their wives and that fact is not far-fetched in reason, as women are regarded as the weaker sex and considered as to be beaten like children or molested. Even when the man does wrong, she cannot correct him or even dare talk about the wrong of the man. We have received testimonies from a lot of women who confessed that their husband beats them when they want to have sex, when they delay his food, when they see them eating and even when she is pregnant and so on – some to the extent of being killed.

Social Ills

Another bad practice done among men of the Gambia is that they marry European ladies and tell their women to pretend to the European lady that she is sister to him, and used her as house help. She becomes a house girl to the European woman or to both, by doing washing of the European clothes. The excuse always is that he wants to make money for the betterment of the family at the expense of the woman, which is an immoral way of making money for the family without regards to her dignity.

Rape Violence

Women and children suffer the hit during crisis and war situations, even though there is no such situation in the Gambia, unlike in Nigeria, Sierra Leone, Rwanda and Liberia. However, there is a serious prevailing crisis of rape among young girls in Gambia⁴¹, and married women are not exempt from it. This comes as a result of women being considered as the weaker sex. This discrimination is why they suffer this kind of trauma. Women are also raped by their spouses. During war, they become sex slaves, for example in Sierra Leone and in Liberia.

The kidnapping of 223 Chibok school girls in Nigeria sometime in 2014 sparked international waves with the phrase “Bring back our Girls” and recently, in the month of February 2018 about 110 or so another girls were kidnapped by the Boko Haram in Dapchi Yobe state. These girls are either forcefully and violently rape and subjected into force marriage by this group of terrorist, or are forced to undertake terrorist acts such as becoming suicide bombers.There is this case of rampant human trafficking of these young girls in southern Nigeria where the girls are being taken to Europe to engage as social sex workers (prostitution), and before they obtain freedom, they must pay huge amounts of money to their so called criminal gang masters for the expenses⁴³.  This is a worry for the ‘New Gambia’ as young girls in Gambia engage with ‘tubabs’ (old European Men) in other to earn living for them and their parents – what a fragrant abuse of human dignity in the name of survival.

Women’s Rights and Implication for National Development

The fact that the contribution of about 51% of the population is seemingly ignored is not good for the development of any nation. Women are found in both formal and informal sectors. As mothers, they can coordinate, deliver and influence a lot of change. Women like the Vice President Fatoumatta Jallow Tambajand who is also Women’s Affairs Minister and other female Ministers in government have proven their worth. The inability of women to access the political, economic and social spheres have hampered their development and affected the entire system. It is very important therefore that conscious efforts are made to address the imbalance in the public administration and governance of the Gambia. The affirmation action which has been introduced to ensure proportionate representation of women has been abused and misapplied, but has in many ways bettered the lots of women.

Other countries such as Nigeria are fighting for the operation of 35% affirmative action for women to ensure equitable gender balance in governance, offer educational opportunities for especially women. Recently, there have been many government instruments like the Sustainable Development Goals⁴⁵, poverty eradication schemes to enhance the economic and political lives of the people. Furthermore, incorporating several objectives of the Beijing Declaration will better the lots of women in establishing the ‘New Gambia’⁴⁶. Where equality exists between men and women, both sexes can have equal opportunities, rights and obligations. When this is done, both men and women will be able to develop their full potential and bring about national development.

Conclusion

The struggles to eliminate gender discrimination, national and international levels have offered women better opportunities but have not eliminated discrimination. The laws and international instruments that protect women’s rights are either deficient or incomplete, thus giving leeway for unenforceability. The implementation of these laws to address women’s right abuses leaves a lot to be desired.

Women still suffered marginalization. They are grossly abused or relegated to the background. They also face gender-based violence. As discussed, factors like traditional beliefs, social cultural and religious practices are considered as responsible for this disparity between men and women. Some of the gender-based violence that women suffer includes wife beating, rape and sexual slavery especially during war, and commercial sex work. It appears that custom and traditions are more adhered to than fundamental human rights and freedoms. Women have contributed to their own problems for example, most widowhood practices of shaving the woman’s head and other dehumanizing treatment are carried out against women by other women, which is often the same for human trafficking of young girls, as carried out by women.

All actions that violate the rights of women should be reported to the law enforcement agencies, and such victims of discrimination should be allowed speedy access to justice. There should be aggressive campaigns and orientations on women’s rights, gender-based violence and redress, and the view and reinforcement of provisions of laws that protect the rights of women in Gambia and all African countries.

The government should operate inclusive policies where both men and women are involved in development policies, and efforts towards protecting the women should not only be an act of showing kindness to women but part of national development for the ‘New Gambia’. The right against FGM/C is highly commendable but more action should be taken until justice is done. The language of the Constitutions should be gender-neutral; the fundamental enforcement rules and procedures copies should be made free and given to everybody to inform and educate them on how to access justice when their rights are denied.

References

African charter on human and peoples right (Adopted 1981, entered into force, 1986).

Convention on the elimination of all forms of discrimination against women(CEWAW) (Adopted 1979, entered into force 1981).

Constitution of the Republic of the Gambia 1997.

Constitution of Federal Republic of Nigeria 2011.

Food and Agriculture Organization (2001) women participation in national forest programmes www.fon.org.

International Convention on Civil and Political Rights (1996)

International Convention on Economic, Social and Cultural Rights (1966).

Mbogunje, A (2002) re-constructing the Nigeria city. The new policy on urban development and housing paper presented at a national conference on the city in Nigeria, the life being acted in a Gender differentials in Nigeria implication for sustainable Development.

www.unilag.edu.ng/opendoc,prip?sno=54248doctype=doc.5

Gkoye, C. (200). The 1999 constitution and women’s rights in Nigerian meet for review, current joss law journals vol.b. No. b, published by matchers publishing limited joss

www.pulse.ng 25.02.2018

Gambia Bureau of Statistics (2014) 'Population and Housing Census 2013'

UNICEF and The Gambia Bureau of Statistics (2010) The Gambia Multiple Indicator Cluster Survey, Banjul

Kaplan, A, Forbes, M. Bonhoure, I, Utzet, M.J. MANNEH, M, Ceesay, H. (2013) 'Female Genital Mutilation/cutting (FGM) in The Gambia in: Long-term Health Consequences and Complications during Delivery and for the Newborn’,’ International Journal of Women’s Health; 5. 323-331.

Foroyaa (freedom) newspaper no 0023/2018 ISSN: 0796-08573

http://www.cracong.org supreme court judgement

Network of Journalists VAPP Act.http://daily times.ng

The Expositor’s Study Bible, King James version

The Holy Quran

The Voice newspaper march 12th 2018 vol.11. no: 50-ISSN 0796-1308. P2.

 

 

An Appraisal of the Legal Framework on Environment Impact Assessment (EIA) in Nigeria

By Shedrack Ekpa Esq. LL.B (Hons), LL.M, PhD, BL Senior Lecturer, Faculty of Law, Kogi State University,

Anyigba-Nigeria, email: This email address is being protected from spambots. You need JavaScript enabled to view it., and Friday Okpanachi, Ekpa Esq., LL.B (Hons), LL.M, BL Lecturer, Faculty of Law, Kogi State University, Anyigba, Nigeria, email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Abstract

The need to protect human environment against all forms of intractable degradation cannot be overemphasised in the face of technological advancement that is currently witnessed globally. This article aims at appraising the legal framework for combating this global menace as it relates to Nigeria and more particularly on the growing concerns regarding institutional faceoff amongst agencies saddled with responsibilities of safeguarding environment in Nigeria as it relates to delivery of their respective mandates. Being a conceptual analysis, the paper relies on both primary and secondary sources of data. The paper founds that the current institutional faceoff between Nigerian Communications Commission (NCC) and National Environmental Standards and Regulations Enforcement Agency (NESREA) is unnecessary and recommends meaningful collaborations between these agencies of government with the common goal of nipping problems of legal regulation of harmful environmental practices in the bud.

Introduction

The environment is the core of man’s existence on the planet. There is no doubt that in every society, there are competing claims on the environment. This competition is between the forces or activities, which conserve the environment and those that degrade it. It is man’s responsibility to protect his inalienable rights to a clean environment by putting in place laws to maintain a sustainable equilibrium between man’s deleterious activities and the conservation of his physical environment.[1]

Environmental issues have constituted a major concern to world leaders, especially in the developed nations of the western world for over three decades.[2] The close of the 80s saw environmental issues raising global concerns as the future of earth climatic conditions and man’s survival on the planet were called into question because of scientific studies.[3] The basic causal factors in the alteration of the earth climatic conditions can be adduced to two related developments. First was the increasing depletion of the ozone layer above the earth atmosphere which in turn is caused by a continuous rise in the emission level of what scientists called “greenhouse gases” which consist mainly of carbon related fumes emitted by motor vehicles and industrial plant, and secondly, there was also the increasing decline of biological diversity and forest reserve (deforestation), the implication of the resulting loss which significantly acts as carbon sink further expose the world to the dangerous effect of greenhouse gases trapped in the atmosphere. [4]

It is against this background that environmental enforcement becomes a desirable instrument used by governments in curtailing or reducing the cause of these global concerns. The most fundamental reason, inter alia, for the convening of the Stockholm Conference of 1972andthe Rio de Janeiro Conference of 1992 was meant to fashion out legal regulations that would ensure environmental compliance.[5]

In a further bid to pursue vigorously the path to industrialization, developing countries were encouraged to pursue the same development models whose fall out assault degrade the environment. How to develop creatively, without compromising the natural integrity of the environment now constitutes a major challenge. Environmental Impact Assessment (EIA) became the perceived tool for achieving the desired balance.[6] Pursuant to several international treaties to which Nigeria is signatory, Nigeria has not only domesticated those international standards on environmental protection but has gone ahead to establish by legislation regulatory agencies, and saddled them with the responsibility of monitoring environmental safety.[7]

This paper, apart from appraising legal framework on EIA in Nigeria, also seeks to examine the overlap and/or faceoff particularly between Nigerian Communications Commission (NCC) and the National Environmental Standards and Regulation Enforcement Agency (NESREA) in the discharge of their respective functions, insofar as it relates to the protection and enforcement of environmental standards through the procedure of environmental impact assessment

Conceptual Clarifications

At this juncture, a glossary understanding of EIA and its procedure is imperative, especially its implication in the context and spirit of Nigerian laws on regulation and enforcement of environmental standards:

Judicial definition of the term ‘environment’ came to fore before the Supreme Court in Attorney General, Lagos State V. Attorney General, Federation[8] as “the totality of physical, economic, cultural, aesthetic and social circumstances and factors which surround and affect the desirability and value of property and which also affect the quality of people’s lives.” In similar context, the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment[9] defines the word ‘environment’ “to include natural resources both abiotic and biotic, such as air, water, soil, fauna and flora, and the interaction between the same factors; property which forms part of the cultural heritage; and the characteristic aspects of the landscape.”[10]

Statutorily speaking, the Environmental Impact Assessment Act[11] on the other hand defines ‘environment’ to mean:

The components of the earth, and includes-

(a)   Land, water and air, including all layers of the atmosphere;

(b)  All organic and inorganic matter and living organisms; and

(c)  The interacting natural systems that include components  

       referred to in paragraphs (a) and (b).[12]

It is apparent from the above definitions that man and his environment can be described as intertwined and in desperate need of each other to survive. It is in further appreciation of this interdependence that Akeredolu rightly posited that: Man has the ability to meddle and alter his environment in pursuit of an improved quality of life. Indeed, the environment is at the core of man’s existence on earth in that he cannot exist without it. Therefore, anything that affects the environment must affect the quality of his life.[13]

The term ‘impact’ on the other hand, can be defined as the reportable, quantifiable difference or potential difference that a project or program is making in real peoples’ lives. It reports payoffs and benefits to society. The focus is on public as opposed to personal benefit. Impact is change or potential change in one or more key areas: economic, environmental, social, health and well-being.[14] Assessment is defined as the determination of the rate or amount of something, such as a tax or damages.[15]

As far as the EIA Act is concerned, it is bereft of express definition of the term “impact”, despite the copious references made to it.  In view of this legislative gap, recourse would be had to other statutory and scholarly definitions whereat ‘environmental assessment’ as opposed to the ‘environmental impact assessment’ have been sufficiently dealt with.

According to the EIA Act, ‘environmental assessment’ means “in respect of a project, an assessment of the environmental effects of the project that is conducted in accordance with this Act and any regulations made thereunder, while ‘environmental effect’ as couched in the EIA Act which is not the same as ‘environmental impact’ means:

In respect of a project:

(a) Any change that the project may cause to the environment; and

(b) Any change the project may cause to the environment,

     whether any such change occurs within or outside Nigeria,

     and includes any effect of any such change on health and

     socio-economic conditions.[16]

In view of the statutory omission of the  definition of the term ‘impact’ in the EIA Act as identified above, a learned author, Okon, defines the term ‘Environmental Impact Assessment’ in wholesome manner “as a systematic process involving the identification, predicted evaluation and presentation of the probable as well as possible consequences (positive or negative) of proposed project, policy or programme, at a stage in the decision-making process where serious environmental damage can either be avoided or reduced”.[17]

Atsegbua on the other hand defines ‘Environmental Impact Assessment’ as the process by which changes in the environment as a result of development are assessed to measure how beneficial or deleterious these changes might be.[18] It is a policy and management tool for both planning and decision making by comparison of the various alternatives by which a desired objective may be realised and seeks to identify the one which represents the best combination of economic and environmental costs and benefits.[19]

Furthermore, EIA is the process by which information about environmental effects of a project is collected, assessed and considered by the planning service in reaching a decision on whether the proposed development should be granted planning permission. EIA can also be defined as a systematic process to identify, predict and evaluate the environmental effect of proposed actions to aid decision making regarding the significant environmental consequences of projects or proposed development.[20] At the global level, World Bank Operational Directives of 1989 describes ‘environmental assessment’ as “a flexible procedure, which can vary in breadth, depth and type of analysis, depending on the project.”[21] It may be carried out at one point in time, stretched over a year to account for seasonal variation, or done in discrete stages. On the other hand, ‘Environmental Impact Assessment’ is also defined as “the process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effect of development proposals prior to major decision being taken and commitments made.”[22]

EIA is usually carried out to produce an environmental statement which should include: description of the project: location, design, scale, size etc.; description of significant; mitigating measures and non-technical summary.[23] A review of application of EIA in Africa shows that some forms of environmental assessment have occasionally been carried out on major development initiatives prior to its systematic institutionalization in the region. Recently, there has been a steady increase in the number of EIA to development project.[24] The steady increase in the number of EIA application received has been attributed to the enactment of EIA legislation, the establishment of institutions, increase in the level of economic activity and a growing awareness about EIA requirements. The sectorial distribution of EIA application depends on the dominance of the sector in the economy and its potential impacts on the environment.[25]

EIA is one of the successful policy innovations of the 20th century for environmental conservation.[26] Some of what later become known as ‘environmental assessment’ had started under town planning regulations, land use and other policies prior to this period.[27] There has been growing public and government concerns about the pollution of the Nigeria’s environment. Slow poisoning of water is witnessed in this country and the destruction of vegetation and agricultural land by oil spills which occur because of petroleum operations. With increasing public awareness of the damage done by oil operations on the environment, government intensified measures to combat these problems.[28] Environmental impact assessment consists of eight steps with each step equally important in determining the overall performance of the project. These eight steps of the EIA are: Screening; Scoping; Impact analysis; Mitigation; Reporting; Review of EIA; Decision-making and Post Monitoring.[29]

Legal Framework on Environmental Impact Assessment in Nigeria

Flowing from the Rio Declaration on Environment and Development,[30] it became imperative for countries to conduct environmental impact assessments with respect to activities that are likely to significantly affect the environment within their territory as proactive steps towards prevention of environmental hazards associated with development.[31]

Globally, EIA is recognized as a tool for achieving sustainable development. EIA legislation and the required procedural guidelines for carrying out the EIA process became effective since the 1970s in developed countries. Nigeria took a giant leap when she promulgated her first legislation on EIA.[32]

EIA is also proclaimed in Principle 17 of ‘Agenda 21’ of the United Nations Conference on Environment and Development (UNCED)[33] held in Rio de Janeiro, Brazil. The principle stipulates that ‘environmental impact assessment’ shall be undertaken for proposed activities that are likely to have a significant adverse effect on the environment and subject to a decision of a competent authority.[34]

In Nigeria there are three independent EIA regimes in operation namely; the EIA Decree 86 (1992),[35] the Town and Country Planning Decree 88 (1992)[36] and the Petroleum Act (1969).[37] Ogunba[38] observed that whilst the current practices as outlined in the three EIA systems in Nigeria are at different stages of evolution, it suffices to state that the Town and Country Planning Decree is yet to evolve satisfactorily in comparison to the other two; the EIA Act and the Petroleum Act provides detailed guidelines on environmental safety, though are yet to be put in effective practice.

Aside from the foregoing, there are other domestic legislation in Nigeria that deals with specific subject or activity that could violate environmental standards and the need to safeguard.[39] However, for the purposes of this article, the focus shall be limited to the EIA Act and the Urban and Regional Planning Act.

Environmental Impact Assessment (EIA) in Nigeria under the EIA Act

The goals and objectives of Environmental Impact Assessment (EIA) Act are provided as follows:

To establish before a decision is taken by any person, authority corporate body or unincorporated body including the Government of the Federation, State or Local Government intending to undertake or authorise the undertaking of any activity that may likely or to a significant extent affect the environment or have environmental effects on those activities shall first be taken into account;

To promote the implementation of appropriate policy in all Federal Lands (however acquired) States and Local Government Areas consistent with all laws and decision making processes through which the goal and objective in paragraph (a) of this section may be realised;

To encourage the development of procedures for information exchange, notification and consultation between organs and persons when proposed activities are likely to have significant environmental effects on boundary or trans-state or on the environment of bordering towns and villages.[40] 

In similar context, the Nigeria’s National Policy on Environment[41] made pursuant to the EIA Act sets out the following goals:

  • Securing the quality of the environment for health and wellbeing;
  • Conserving and using the environment and natural resources for the benefit of present and future generations;
  • Restoring, maintaining and enhancing the ecosystem and ecological processes essential for the functioning of the biosphere to preserve biological diversity and the principle of optimum sustainable yield in the use of natural resources;
  • Promoting public awareness on the link between development and the environment; and,
  • International co-operation with countries and international organisations in the protection of the environment.

Notwithstanding the elaborate provisions in the main EIA legislation and the subsidiary rules as identified from the foregoing, Nwazi, a learned scholar, opines that the goals of EIA may also include: responsible use and exploitation of natural resources; sustainable productivity of ecosystems; maintenance of the carrying capacity and the absorptive capacity of air, land and water; prevention of the degradation of environmental quality; and use of appropriate technology.[42]

On his part, Ivbijaro, commented further on what could clearly be captioned as falling within the realm of goals and objectives of EIA posited that the aims of EIA may also include; to ensure that the possible negative impacts of development projects are predicted and addressed prior to the project take off; to ensure that development projects are environmentally sound and sustainable; EIA like feasibility studies is a planning and management tool for officials and managers who formulate policies and make important decisions about development.[43] The learned author submits that the public or private sector of the economy shall not undertake or embark on public or authorise projects or activities without prior consideration, at an early stages, of their environmental effects. Where the extent, nature or location of a proposed project or activity is such that is likely to significantly affect the environment, its environmental impact assessment shall be undertaken in accordance with the provisions of the EIA Act.[44] Laid down standard and procedures under the EIA Act shall be used to determine whether an activity is likely to significantly affect the environment and is therefore subject to an environmental impact assessment. The EIA Act also requires all agencies, institutions (whether public or private) except exempt under the EIA Act, before embarking on the proposed project apply in writing to the Agency, so that subject activities can be quickly and surely identified and environmental assessment applied as the activities are being planned.[45]

To ensure that proper data/information are elicited from applicants in need of certification of their level of compliance to environmental safety, the EIA Act prescribes the minimum content of EIA as follows:

 An environmental impact assessment shall include at least the following minimum matters, that is -

(a) A description of the proposed activities;

(b) A description of the potential affected environment including specific information necessary to identify and assess the environmental effects of the proposed activities;

(c)  A description of the practical activities, as appropriate;

(d) An assessment of the likely or potential environmental impacts on the proposed activity and the alternatives, including the direct or indirect cumulative, short-term and tong-term effects;

(e) An identification and description of measures available to mitigate adverse environmental impacts of proposed activity and assessment of those measures;

(f) An indication of gaps in knowledge and uncertainty which may be encountered in computing the required information;

(g) An indication of whether the environment of any other State, Local Government Area or areas outside Nigeria is likely to be affected by the proposed activity or its alternatives, and

(h) A brief and non-technical summary of the information provided under paragraph (a) to (g) of this section.[46]

Furthermore, the EIA Act provides for consultation in granting approval for a project initially by ensuring that NESREA[47] affords concerned professionals, government agencies and other stake-holders opportunity to make an input prior to release of final report or decision, which is required to be made public.[48]

With respect to mandatory projects, the provisions of the EIA Act is clear: such projects   require EIA in accordance with the conditions set out in the Act or any regulation made thereunder.[49] Where a project is so described to be mandatory, no federal, state or local government or any of their authority or agency shall exercise any power or perform any duty or functions that would permit such project to be carried out in whole or in part until the relevant agency has taken a cause of action conducive to its power or has taken a decision or issue an order that the project could be carried out with or without conditions.[50] Any conditions given by the agency of either federal, state or local government must be fulfilled before that project is embarked on.[51]

The EIA Act further enumerates other cases where the conduct of environmental impact assessment is a condition precedent as follows:

Notwithstanding the provisions of Part I of this Act an environmental impact assessment shall be required where a Federal, State or Local Government Authority established by the Federal, State or Local Government Council:

  • Is the proponent of the project and does any act or thing which commits the Federal, State or Local Government authority to carrying out the project in whole or, in part;
  • Makes or authorises payment or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except when the financial assistance is in the form of any reduction, avoidance, deferral, removed, refund remission or other form of relief from the payment of any tax, duty or excise under Customs Tariff (Consolidated) Act or any Order made thereunder, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the enactment, regulation or order that provides the relief to be carried out;
  • Has the administration of Federal, State or Local Government and leases or otherwise disposes of those lands on or any tests in those lands or transfers the administration and control of those lands or invest therein in favour of the Federal Government or its agencies for the purpose of enabling the project to be carried out in whole or in part; and,
  • Under the provisions of any law or enactment, issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.[52]

Furthermore, EIA shall not be required by an agency where a project is on the list of projects whereby the President is of the opinion that the environmental effects are likely to be minimal, or where the project is to be carried out during national emergency, or the project is to be carried, in the opinion of the agency, in the interest of public health or safety.[53]

Environmental Impact Assessment under the Nigerian Urban and Regional Planning Act

Assessment of the environmental effects of major proposed developments before planning permission is granted is now a central part of the decision-making process for planning authorities.[54] Under the Act, a developer (whether private or government) is required to draw a building plan by a registered architect or town planner before an application for development will be considered.[55]

Furthermore, a developer shall at the time of filing his application for development submit to an appropriate control department a detailed environmental impact statement for an application for building of a residential land more than 2 hectares; or permission to build or expand a factory or for the construction of an office building more than four floors or 5,000 square meters of a lettable space, or permission for a major recreational development.[56]

Section 48 of the Act[57] empowers the planning authority to direct a developer to alter, vary, remove or discontinue a development having regard to the likely environmental degradation or impact of such development if allowed. The Act prescribes such violation as an offence and upon conviction and sentence to a fine not exceeding ten thousand naira (N10,000) and in the case of a company, to a fine not exceeding fifty thousand naira only (N50,000).[58] The Act also provides for preservation and planting of trees for the purposes of environmental conservation against the hazards of degradation.[59]

It has been submitted that the requirement of an environmental impact statement (EIS) under the Act[60] is separate and distinct from the requirement of an environmental impact assessment under the EIA Act. From all intents and purposes, the requirement of an EIS is an integral part of the general package for the enhancement of development towards the EIA Act’s goal of a more efficient land use and planning as a national policy.[61]

It is important to note that despite repeated references made to the terms ‘significant’ or ‘major’ in the description of environmental impact that could suffice as falling within the thresholds of the regulation envisaged in the EIA Act and the NURP Act examined above,[62] the definition of these key terms is copiously absent thereby given room to some forms of interpretative disharmony amongst stakeholders. This paper therefore submits that such gaps in legislation erodes certainty and predictability that are key criteria to good legislation. 

The position is better appreciated from the background that the threshold of major environmental impact under the NURP Act may not be as high as under the EIA Act. For instance, an impact as simple as the disturbance of the aesthetic quality may suffice as a major environmental impact for the purposes of the NUPR Act.[63] 

Judicial attempts at filling the gaps are not particularly helpful. In Natural Resources Defence Council v. Grant,[64]  the term ‘major’ was defined as ‘an action that requires substantial planning, time, resources or expenditure. However, in Rucker v. Willis,[65] it was held that the defendants, corps of Engineers, were not required to prepare an environmental impact statement about a permit to build a fishing pier and marina. Further, the project was not major stressing the private nature of the project and the minimal federal involvement.

Two-pronged test to determine the phrase ‘significantly affects the quality of the human environment’ was set out in the case of Hanly v. Kleindienst,[66] as follows:

  1. The extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it; and
  2. The absolute qualitative adverse environmental effects of the action itself, including the cumulative harm that results from the contribution to existing adverse conditions or uses in the affected area.

It therefore follows that what is ‘significant’ or serious ’ for the purposes of breach of the legal protection contemplated under the EIA Act and NURP Act would continue to be determined, based on the peculiar facts and circumstances of each case.

Implementation/Enforcement of EIA Laws in Nigeria: The NCC/NESREA’s Faceoff

Implementation and enforcement of environmental safety standards in Nigeria was formally vested in the Federal Environmental Protection Agency (FEPA).[67] However, the National Environmental Standards and Regulation Enforcement Agency (NESREA) was established as the paramount federal agency charged with the protection of Nigeria’s environment. [68] It is worthy of note that the NESREA Act repealed the Nigerian flagship law on protection of the environment that is, the Federal Environmental Protection Agency Act.[69] Consequently, NESREA has become the primary agency on environmental protection attributable to man-made development in Nigeria.

For the records, NESREA has the sole responsibility for protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology including coordination, and liaison with, relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines inter alia.[70]

However, a critical appreciation of the NESREA Act reveals that the inclusion of ‘oil and gas’ on the list of international treaties on the environment to be enforced by NESREA[71] is contradictory and confusing considering provisions in the Act which expressly remove oil and gas from the purview of NESREA.[72] It is thus submitted that such legislative imprecision should not be encouraged. The phrase ‘oil and gas’should be struck out to bring section 7(c) in conformity with other sections of the Act and to reflect the true intention of the drafters.[73] This paper agrees with the view expressed by Ladan, to the effect that NESREA constitutionally can only enforce domesticated treaties but that the agency could play a vital role in the domestication process of relevant environmental treaties.[74]

The Agency is armed with a wide range of powers, with a view to making its operations more effective. In the sphere of environmental protection, the agency can “prohibit processes and use of equipment or technology that undermine environmental quality”.[75] It can also “conduct field follow-up compliance with set standards and take procedures prescribed by law against any violator”.[76] The agency is empowered to establish mobile courts to expeditiously dispense cases of environmental infringements.[77] However, this has to be done with the ‘relevant judicial authorities’ as well as in consonance with the provisions of Nigerian Constitution. Furthermore, the agency can conduct public investigations[78] and make proposals to the Minister for the review of existing guidelines, regulations and standards on environment.[79] In partnership with the public or private agencies, institutions and organizations, it can promote the expansion of research experiments, surveys and studies.[80] With the approval of the Minister, the Agency can “establish programmes for setting standards and regulations for the prevention, reduction and elimination of pollution and other forms of environmental degradation in the nation’s air, land, oceans, seas and other water bodies and for restoration and enhancement of the nation’s environment and natural resources.”[81] Through publications and other appropriate means, the agency can collate and make available basic scientific data on environmental standards.[82]

Pursuant to the provisions of EIA Act, [83] NESREA is the agency empowered by the EIA Act to enforce environmental standards and regulations in Nigeria, following the defunct Federal Environmental Protection Agency (FEPA),[84] which is empowered to enforce EIA Act insofar as such projects are proposed by government agency at any level, be it federal, state or local.

Conversely, there exists another federal agency called the Nigerian Communications Commission, which was established in 2003,[85] and saddled the regulation of the communications sector generally in Nigeria. It is empowered inter alia to facilitate the investment in and entry into the Nigerian market for provision and supply of communications services, equipment and facilities and to grant and renew communications licences whether the licences themselves provide for renewal in accordance with the provisions of this Act and monitor and enforce compliance with licence terms and conditions by licensees.[86] 

The NCC Act further provides that licensees may require approvals of the state government, local government or other relevant authority for installation, placing, laying or maintenance of any network facilities on, through, under or across any land and it shall be the responsibility of such licensees to obtain such approvals and that a licensee shall, in installing its network facilities, take all reasonable steps to ensure that he causes as little detriment and inconvenience, and does as little damage, as is practicable. Further that, if a licensee engages in an activity in relation to any land, the provider shall take all reasonable steps to restore the land to a condition that is like its condition before the activity began. Also, that all licensees shall, about the installation of their respective network facilities, take all reasonable steps to act in accordance with good engineering practice; protect the safety of persons and property; ensure that the activity interferes as little as practicable with –the use of land; and protect the environment.[87] 

For all intents and purposes and flowing naturally from the above provisions of the NCC Act, it has not in any way placed regulation of environmental issues or the enforcement of EIA laws in the NCC.[88]  Though NCC is recognized as an agency of Federal Government of Nigeria, it is not so captioned under the EIA Act or NURP Act as an agency saddled with implementation and enforcement of environmental standards and safety in Nigeria. 

What is more, NCC Act recognizes the existence and role of NESREA as a collaborative agency in matter of telecommunication installations which harbours environmental dangers to human population, by providing the grant of its licence to prospective investors is subject to the overriding approval of relevant authority which is in this case NESREA.[89]

There are current concerns regarding the exercise of the powers of these two sister agencies in matters of installation and operation of telecommunication masts that radiate injurious electromagnetic field (ETF) rays affecting human environment. While NCC certifies a minimum of five-metre distance from a residential building and other requirements, NESREA on the other stipulates a minimum of 10 metres, as stipulated by its regulation on telecommunications and broadcasting facilities[90] on the ground that the said distance would be too close and could pose intractable environmental dangers to residential buildings.[91] In enforcing the above regulations, NESREA have ordered a number of telecommunication base stations that contravened the laid down criteria to be shut down.[92]

This development has given rise to frosty relationship between NCC and NESREA, resulting in faceoff that has hampered smooth and collaborative running of these agencies in Nigeria As clearly observed from the foregoing analysis of the enabling laws which is clear and not shrouded in legislative controversy, their mandates are quite dissimilar but complementary.[93]

Breathing along the same line of thought, Ogboru is of the view that the rift is unnecessary and in fact needless for the two agencies to engage themselves in such avoidable and mundane battle, given that they both regulate different sectors of the Nigerian economy. [94]He observed that while NCC regulate telecommunications, NESREA is concerned with protection of environment regulation and compliance, adding that the issue of regulation of telecommunication base station remained within the competence of the NCC being a telecoms matter per se,  but that where such endeavours pose environmental issues of pollution and the likes, being an environmental issue, NCC is enjoined to refrain from engaging in needless rifts with NESREA, especially having regard to the provision of its own law which envisages such collaboration with NESREA in addressing the matter.[95]

The learned scholar opined further that NESREA’s act of closure/sealing of a communication in consequence of breach of its regulation ought not to be taken as incursion into the exclusive preserve of the functions of NCC.[96] This paper agrees with the foregoing views expressed by Ogboru, and adds that such institutional friction/animosity in quest of supremacy is unnecessary if we are to achieve the set-out objectives of these relevant government agencies.

Conclusion/Recommendation

Since the environment is the core of man’s existence on the planet, anything that affects it must invariably affect the quality of man’s life.[97] Even though an individual is entitled to make use of the environment for his own sustenance, there can be no corresponding right for the individual to do whatever he likes with the environment as it does not form part of fundamental right to pollute or to use the resources of nature in an unsustainable manner.

There should therefore always be a balance between man’s efforts in exploiting nature for his survival and the need to avoid degrading the environment.[98] Hence, all hands must be on deck in securing our environment.

Although the existence of numerous legislation on EIA in Nigeria is a welcome development, what is more important lies beyond this much touted celebrated flagrancy: effective implementation and compliance of the set out standards on healthy use of resources of nature, particularly as envisaged in the establishment of NESREA with its monetary and other punitive sanctions, is key in the prevention of harmful environmental practices in Nigeria.[99] The importance of EIA as a veritable tool for sustainable development must be deeply appreciated beyond mere semantics.

Insofar as the faceoff between the NCC and NESREA regarding the environmental issues associated with installation of telecoms systems, this paper concludes that such war of supremacy is self-serving and borne out of lack of understanding of the letters and spirit of   laws establishing the respective agencies, as there is no such legislative gap in the enabling statutes that could fan embers of acrimony amongst them.

To this end, it is recommended that Nigerian government should harmonize the activities of these agencies regarding the discharge of their respective roles in relation to environmental impact assessment in the country.[100] Needless to add that our laws as typified in several legislations on the subject should also be reviewed to address issues of overlap of functions, in order to forestall possible outbreak of institutional crises as enumerated earlier.

Footnotes

[1] Nwazi, J., An Appraisal of the Environmental Impact Assessment as a Device for Sustainable Development in Nigeria, Igbinedion University Law Journal, Vol. 6, 2008, p.193; Agbazue V.F., Anih E.K, and Ngang B.U., The Role of NESREA Act 2007 in Ensuring Environmental Awareness and Compliance in Nigeria, ISOR  Journal of Applied Chemistry Volume 10, Issue 9 Ver. III, September 2017, p. 32.

[2]Seigel M., Environmental Issues of the 70s and 80s,The Wottonpost, 2012 available at http://the

  wottonpost.wordpress.com, accessed on 26/3/2018.

[3] Shantora V., Environmental Concerns of the 80s, Journal of the Air Pollution Control Association, 33:6,

  2012, pp.559-561, available at www.tandfonline.com>doi>pdf, accessed on 23/3/2017.

[4] Nwankwoala H. N. L, Causes of Climate and Environmental Changes: The Need for Environmentally Friendly  

  Education Policy in Nigeria, Journal of Education and Practice Vol. 6, No. 30, 2015, pp. 224-234

[5] Edo, Z.O.,The Challenges of Effective Environmental Enforcement and Compliance in the Niger Delta Region

  of Nigeria. Journal of Sustainable Development in Africa, Vol. 14, No. 6, 2012, p.12

[6]Anago, I., Environmental Impact Assessment as a Tool for Sustainable Development: The Nigerian   

  Experience, Paper presented at the FIG XXII International Congress, Washington, D.C. USA, April 19th -26th   

  2002.

[7] Such as National Environmental Standards Regulation Enforcement Agency (NESREA) and Nigerian 

  Communications Commission (NCC) to mention but a few.

[8] (2003) FWLR Pt. 168 at 922.

[9] Adopted in Lugano, June 21, 1993, available at https://www.ecolex.org, accessed on 12/3/2018.

[10]  Article 2(10) thereof. See also Thornton, J. and Berkwith, S., Xwell’s Environmental Law, 2nd edition,       

   (London: Sweet & Maxwell, 1997), p.23.

[11]  National Policy on the Environment of 1999 (revised edition).

[12]   Section 63(1) of Environment Impact Assessment Act Cap E12 LFN 2004, (hereinafter referred to as EIA  

    Act).

[13] Akeredolu, A., NESREA Vis-a-Vis FEPA: An Old Wine in a New Bottle? NIALS Journal of Environmental

    Law, Vol. 1, 2011, p.309.

[14] What is impact? The heart of your EARS report, available at

    http://www.extension.unl.edu/c/document_library/get_file?folderId=3602&name=DLFE-2444.pdf accessed  

    on 17/4/2017.

[15]  Garner, B.A., Blacks’ Law Dictionary, 8th Edition, (St Minns: West Publishing Co., 2004), p.125.

[16] Section 63(1) of the EIA Act.

[17] Okon, E.E., The Legal Framework of Environmental Impact Assessment in Nigeria, Modern Journal of

    Finance and Investment, Vol.5, No.2, 2001, p.213.

[18] Atsegbua, L., et al., Environmental Law in Nigeria, Theory & Practice, (Lagos: Ababa, 2003), p.167.

[19] Ivbijaro, M.F., “Environmental Impact Assessment / Environmental Audit Report in Nigeria: An Overview” 

    in Environmental Law and Sustainable Development in Nigeria, Ajomo, M.A. & Adewole, O. (eds) (Lagos:  

    NIALS, 1998), p.148.

[20] Chukwuma C., Environmental Impact Assessment of Development Projects and Natural Resources -A View

    Point, Journal of Environmental Studies, Vol. 50, Issue 3-4, 1996, pp. 187-200, available at http://www. 

    tandfonline.com, accessed on 21/3/2018.

[21] Federal Environmental Protection Agency-National Guidelines and Standards for Industrial Effluents,

   Gaseous Emissions and Hazards Waste Management in Nigeria, 1999.

[22] International Association for Impact Assessment (IAIA) and Institute of Environmental Assessment (1999).

[23] Akintunde, M. A., and Olajide, A., Environmental Impact Assessment of Nigerian National Petroleum

    Corporation (NNPC) Awka Mega Station. American Journal of Scientific and Industrial Research, 2(4), 

    2011, pp. 511-512 available at http://www.scihub.org/AJSIR, accessed on 14/4/2017.

[24] Chukuma, C., op cit, p.187.

[25] Akintude M.A., and Olajide A., op cit., p.512.

[26] Sadler B., (ed.). Environmental Assessment in a Changing World: Evaluating Practice to Improve 

    Performance, International Study of the Effectiveness  of Environmental Assessment, Final Report, June  

    1996, p. 1 available at https://www.ceaa.gc.ca>content>... accessed on 23/2/2018.

[27] Goodland, R. and Mercier, J.R., Environmental Assessment (EA) in Africa; A World Bank Commitment,

    Proceeding of the Durban World Bank Workshop, June 25, 1995.

[28] Akintunde, M. A. and Olajide A., op cit., p.512.

[29] Goodland, R. and Mercier, J.R, op cit.

[30] Principles 17 of the Rio Declaration on Environment and Development.

[31] Bhatt, R.P. and Khanal, S.N., Environmental Impact Assessment System and Process: A Study on Policy and

   Legal Instruments in Nepal, African Journal of Environmental Science and Technology Vol. 4(9), September

   2010, p.589, available at http://www.academicjournals.org/AJEST accessed on 14/4/2016

[32] Under EIA Act No.86 of 1992, now Cap E12, Laws of the Federation of Nigeria, 2004.

[33] Agenda for the 21st century, held on the 3rd to14th of June, 1992, Rio De Janeiro, Brazil.

[34] Ibid.

[35] Currently cited as Environmental Impact Assessment Act, Cap E12 LFN, 2004.

[36] Currently cited as Urban and Regional Planning Act, Cap N138, LFN 2004.

[37] Nwoko, C.O., Evaluation of Environmental Impact Assessment System in Nigeria. Greener Journal of

    Environmental Management and Public Safety Vol. 2 (1), January 2013, p.23, available at www.gjournals.org 

    accessed on 14/4/2016.

[38] Ogunba, O.A., EIA Systems in Nigeria: Evolution, Current Practise and Shortcomings, Environmental Impact

   Assessment Review, 24, 2004, pp.643–660.

[39] The Constitution of the Federal Republic of Nigeria (1999) (as amended), National Environmental Standards 

    and Regulations Enforcement Agency (Establishment) Act, 2007, Harmful Waste (Special Criminal

    Provisions) Act, Cap H1, LFN, 2004. Hydrocarbon Oil Refineries Act, Cap H5, LFN, 2004, Associated Gas  

   Re-injection Act, Cap 20, LFN, 2004, The Endangered Species Act, E9, LFN, 2004, Sea Fisheries Act, Cap  

  S4, LFN, 2004, Oil Pipelines Act, Cap O7, LFN, 2004, Petroleum Act, Cap P10, LFN, 2004, Petroleum

  Products and Distribution (Management Board) Act, Cap P12, LFN, 2004, Territorial Waters Act, Cap T5, 

  LFN, 2004, Nuclear Safety and Radiation Protection Act, Cap N142, LFN, 2004, Nigerian Mining

  Corporation Act, Cap N120, LFN, 2004, River Basins Development Authority Act, Cap R9, LFN, 2004, Pest 

  Control of Production (special powers) Act, Cap P9, LFN, 2004, Agricultural (Control of Importation) Act,

  Cap A93, LFN, 2004, Animal Diseases (Control) Act, Cap A17, LFN, 2004, Bees (Impact Control and

  Management) Act, Cap B6, LFN, 2004, Civil Aviation Act, Cap C13, LFN, 2004, Factories Act, Cap F1,  

  LFN, 2004, Water Resources Act, Cap W2, LFN, 2004, Hides and Skins Act, Cap H3, LFN, 2004, Federal   

  National Park Act, Cap N65, LFN, 2004, Niger-Delta Development Commission (NDDC) Act, Cap N68, LFN,

  2004 among others.

[40] Section 1 of the EIA Act.

[41] Constituted in 1989.

[42] Nwazi, J., op cit., p.199.

[43] Ivbijaro, M.F., op cit., p.149.

[44] Ibid.

[45] Section 2 of the EIA Act.

[46] Section 4 of the EIA Act.

[47] Note that NESREA is now the Agency responsible for the implementation of the EIA Act. Section 36 of

    NESREA Act repealed FEPA Act.

[48] Sections 7 and 9(2), (3) & (4) of the EIA Act.

[49] Under the Mandatory Project Lists in the Schedule to the EIA Act.

[50] Section 13 of the EIA Act.

[51] Nwazi, J., op cit., p. 201. Mandatory projects as listed under the Schedule to the Act are: Agriculture, Airport,

    Drainage and Irrigation, Land Reclamation, Fisheries, Forestry, Housing, Industry, Infrastructure, Ports, 

    Mining, Petroleum, Power generation and transmission, Quarries, Rail ways, Transportation, Resort and

    Recreational Development, Waste Treatment and Disposal, and Water Supply.

[52] Section 14 of the EIA Act.

[53] Ibid., section 15.

[54] Thornton, J., op cit., p.375.

[55] Section 30 of the NURP Act.

[56] Section 33 of the NURP Act.

[57] Ibid.

[58] Ibid., section 59.

[59] Ibid., section 72.

[60] Ibid., section 33.

[61] Okorodudu-Fubura, M.T., op cit., p.304.

[62] For instance, section 3 (1) of EIA Act provides that ‘in identifying the environmental impact

    assessment process, under this Act, the relevant significant environmental issues shall be identified and

    studied before commencing or embarking on any project or activity convened by the provision of this Act or

    covered by the Agency or likely to have serious environmental impact on the Nigerian environment. (Italics

    for emphasis).

[63] Section 31 of NURP Act.

[64] 341 F. Supp, 356, 366-367 (ENDC 1972).

[65] 484 F. 2D 158 (4th cir 1978). See also Atsegbua, L. et al. op cit., p.171.

[66] 471 F. 2nd 823 2nd cir 1972.

[67] Established by FEPA Act Cap F10 LFN 2004.

[68] See the Long Title and Section 1(2) (a) of NESREA (Establishment) Act No. 25 of 2007. See also Ladan,   

   M.T., Review of NESREA Act 2007 and Regulations 20092011: A New Dawn in Environmental Compliance 

   and Enforcement in Nigeria. Law, Environment and Development Journal, 2012, Pp. 118-140, available at

   http://www.lead-journal.org/content/12116.pdf 

    accessed on 26/4/2017.

[69] Section 36 of NESREA Act, 2007.

[70] Ibid., section 7(a)-(m).

[71] Ibid., section 7(c).

[72] Ibid., section 7 subsections (g), (h) and (j) which excludes cumulatively the regulation of NESREA on matters

    of oil and gas by the use of the phrase ‘other than in the oil and gas sector’ (Italics for emphasis).

[73] Ladan, M. T.  Law, Cases and Policies on Energy, Mineral Resources, Climate Change, Environment, Water,

   Maritime and Human Rights in Nigeria (Zaria: ABU Press, 2009) p.  Another issue raised by S.7(c) as

   canvassed by Akeredolu, A. is that, since the section mandates NESREA to enforce compliance with 

   international environmental agreement, conventions, treaties and protocols, it raises the question whether such

   international obligations can be enforced without formal ratification by the National Assembly as required by

   section.12 of the Constitution of the Federal Republic of Nigeria 1999 (As amended), see Akeredolu, A., op

   cit., p.326.

[74] Ibid.,

[75] Section 8(d) NESREA Act.

[76] Ibid, section 8 (e).

[77] Ibid, section 8 (f).

[78] Ibid, section 8 (g).

[79] Ibid, section 8 (k).

[80] Ibid, section 8 (m).

[81] Ibid, section 8 (o).

[82] Ibid, section 8 (p).

[83] Section 14(d) of the EIA Act.

[84] Section 63 of the EIA Act defines ‘Agency’ responsible for its administration as FEPA. However, as stated

    earlier, Section 36 of NESREA Act, 2007 expressly repealed FEPA Act, the necessary implication is that

    NESREA has replaced FEPA as the “Agency” referred to in Section 63 of the EIA Act.

[85] National Communications Commission Act, 2003.

[86] Ibid., sections 3 and 4.

[87] Ibid., sections 135 and 136. It is our submission that the NCC Act recognizes the existence and power of any

   other Agency

[88] Either the EIA Act or the NURP Act.

[89] Ibid.

[90] Adeyemi,A.,  ‘Government Resolves NCC, NESREA Feud over Telecoms’ Facilities Control’ Guardian      

   (Lagos, 1 June 2012) <www informationng.com/2012/06/govt-resolves-ncc-nesrea-feud-over-telecoms-

   facilities-control.html> accessed 21st August 2017.See also National Environmental (Standards for

   Telecommunications and Broadcasting Facilities) Regulations, 2011, S.I. No. 11 Gazette No. 38, Vol. 98 of  

   29th April, 2011. The said regulation is meant to protect environmental and human health; ensure safety and  

   general welfare; eliminate or minimise public and private losses due to activities of the telecommunications

   and broadcast industry. See also section 8(d) of NESREA Act.

[91] National Environmental (Noise Standards and Control) Regulation, 2009, cited as Federal Republic of

   Nigeria, Abuja, Regulations No. 35 of 2009, Official Gazette, Vol. 96, No. 67 dated 19th October 2009. The

   said regulation is meant to regulate maximum permissible noise levels:- for general environment,

[92] Nigeria: The NESREA/ NCC Feud over Telecoms Masts, Leadership Newspaper, 10 August 2012, available

    at http://m.allafrica.com/stories/ accessed on 26/4/2016.

[93] A quick look at the long titles to both the NESREA Act and the NCC Act would reveal the differences in their

    respective mandates without much difficulty.

[94] Ogboru T., NESREA and NCC Regulation on Telecommunications: Implementing the Precautionary 

    Principle, Journal of Sustainable Development Law and Policy Afe Babalola University Vol. 5, No. 1, 2015,

  1. 70-71, available at https://www.ajol.info>article>view...accessed on 28/3/2018.

[95]Ibid.

[96] This view is rational having regard to NESREA’s National Environmental (Standards for Telecommunications and Broadcasting Facilities) Regulations, 2011, S.I. No. 11 Gazette No. 38, Vol. 98 of

   29th April, 2011.

[97] Atsegbua, L., et al., op cit., p.66.

[98] Nwazi, J., op cit., p.214.

[99] Ladan M.T., op cit., p.137.

[100] Agbazue V.F., Anih E.K, and Ngang B.U., op cit., pp.36-37

 

 

Was Genocide Committed Against the Igbo Nation of South Eastern Nigeria during the Civil War? The Law of Genocide on Trial

By D.F. Atidoga, PhD (ABU), BL, PGDE, Senior Lecturer and Deputy Dean of Law, Kogi State University, Nigeria and Abubakar, Ishaq, PhD (ABU), BL, PGDE, Lecturer at the Faculty of Law, Ahmadu Bello University, Zaria, Nigeria.

Abstract

The Nigerian nation has – over the years – been a victim of grave conflicts. These numerous conflicts span through the pre-colonial period, colonial era and post-colonial era. These different eras were predominantly characterized by conflicts of a peculiar nature and particular to each era. While the pre-colonial era was characterized by wars of conquest amongst indigenous tribes, the colonial era witnessed an insurgence of conflicts of resistance to colonial domination – spurred by nationalism and proto-nationalism. The post-colonial era ushered in a new dimension of conflict, informed by the quest for the grip of political power; bringing to force the pursuit of sectional interests. These interests brewed the 1966 Military Coup which climaxed at the Kano pogrom and ultimately at the Nigerian Civil War, which is the primary concern of this paper. Some scholars, commentators and even some persons of the Igbo extraction consider the civil war crisis as genocide against the Igbo nation of south eastern Nigeria. The paper examines the nature of the Nigerian civil war crises with the search light of the crime of genocide, with a view to determining whether it constitutes genocide against the Igbo people. The paper found amongst other findings, that the nature of the Nigeria civil war hostilities may not constitute genocide in its strict legal meaning, but that pockets of war crimes may have been committed.

Introduction

The heterogeneous nature of Nigerian society and the dynamics of its collectivity in the face of overwhelming mistrust, sectionalism, regionalism, tribalism and nepotism amongst other disuniting forces, has no doubt over the years created a flourishing ground for emergence of multi-dimensional conflicts, ranging from political, ethnical, social and religious crises.[1] These crises may be because of the nature of the emergence of the Nigerian state. It was argued that the Nigerian state emerged from series of predatory activities of the Europeans, which commenced with exploration of resources, then to  slave trade, the Berlin Conference of 1884 and colonialism.[2] In Nigeria, before the advent of colonialism, strong trade and social links had been established between communities; in some instances, the communities were engaged in bitter battles of supremacy such as the battle of conquest by the Jihadist led by Uthman Dan Fodio,[3] Queen Amina’s expansionist wars,[4] the Igala-Jukun[5] battle of supremacy, and the Igala-Benin war[6] It must therefore be stated that some of the factors of conflict in Nigeria today pre-date European incursion, while European incursion introduced new factors of conflict.[7]

The nature of the conflict – in the geographical entity later called Nigeria – at the time of European incursion, included the struggle against cultured diffusion and a fierce resistance to the new ways and new values guided by the white imperialists. Predominantly, these crises were more of a resistance nature, fueled by perceived nationalism and/or proto-colonialism. Prominent amongst these crises of resistance were the Esan resistance in Benin Kingdom,[8] the aggressive resistance to European incursion by King Jaja,[9] Aba women riot,[10] which was a high-level protest on colonial policy, and the proto-nationalistic resistance against colonial domination by Nana of Itsekiri.[11]

At the exit of the white man, upon attainment of self-governance, Nigeria was plunged into pocket of crises, spurred by regional and sectional interest; all in pursuit of grip of power. These crises included census crises[12], electoral crises,[13] 1966 military coup d’état,[14] which culminated into high level disenchantment, disaffection and mistrust amongst the Nigeria Federating Regions.[15] These resulted to a somewhat hide and seek game, that climaxed at the Kano pogrom and ultimately at the Nigerian civil war.

The Nigerian civil war was a war of secession pursuant to the declaration of an Independent State of Biafra by the Igbo people of South Eastern Nigeria, which was fiercely resisted by the Nigeria Federal Government, led by then Lieutenant Colonel Yakubu Gowon.[16] The thirty month civil war was and still remains the most calamitous crises situation in the history of Nigeria with consistent hostilities between the periods of 1967-1970.[17] Some scholars[18] and public commentators[19] described the nature of the Nigerian civil war crises as genocide against the Igbo people of South-Eastern Nigeria.  It is premised on the foregoing that this paper seeks to explore and resolve the question as to “whether the hostilities of the Nigeria civil war constitute the perpetration of genocide against the Igbo people in the context of the elements of the crime”. This is with a view to ending the seemingly endless debate as to whether genocide had been perpetrated by the Nigerian government or not.

Nigerian Civil War (1967-1970)

Background to the Nigerian Civil War

The Nigerian civil war like a bomb shell, rocked the emerging Nigerian state from 1967 to 1970; leaving its bloody stains on the heart of the embryonic Nigerian polity, a dreadful stain that still trails the socio-political existence of Nigeria as a collectivity. The thirty month civil war was preceded by a configuration of pre-independent and post-independent crises.[20] It was rightly observed that the origin of the Nigerian civil war could be in a complexity of factors which include the military coups d’etat of January 15, and July 29, 1966.[21] Other remote causes include general unrest in the country, such as the regional election crisis in Western Nigeria, in 1965; the Tiv riot of 1964; the federal election dispute of 1964; the massacre of the Igbos in Northern Nigeria from May to September 1966;[22] the structural imbalance inherent in the Nigerian state; and most importantly the perceived asymmetrical distribution of power among the various ethnic and geo-political groups.[23]

Between August and September 1966, the unrest in Northern Nigeria reached its peak, claiming the lives of between ten thousand and thirty thousand Easterners mostly of Igbo extraction and about one million of them fleed from the North to the East.[24] As the civil disturbance continued with the military and political leaders unable to reach an agreement, it was generally agreed that a new constitutional formula, which hoped to give effect to the changes that had occurred, was urgently needed.[25] A Constitutional Conference of ad hoc nature was convened in mid September 1966, to find the way out of the lingering crises.[26] The said ad hoc Constitutional Conference failed because of distrust and bitterness. After failed attempts to meet in Nigeria, the two sides met at Aburi in Ghana under the Chairmanship of General Ankrah, the Chairman of Ghana National Liberation Council. At Aburi, disagreement also erupted between the Federal Military Government and Eastern Region Military Government over the proposal to introduce a greater measure of decentralization by increasing the powers of the region vis-à-vis those of the Federal Government. These created a lot of tension as the military leaders from both sides gave conflicting interpretation of the Aburi accord.[27]

On May 26, 1967, Lieutenant Colonel Chukwuemeka Odumegwu Ojukwu summoned an emergency meeting of the Eastern Nigeria Consultative Assembly to review the situation at hand. The following day, Lieutenant Colonel Yakubu Gowon, in a nation-wide broadcast, announced the creation of twelve states, dividing the Eastern region into three states. The Eastern Nigeria Consultative Assembly, already in session in Enugu, responded same night by passing a resolution empowering Lieutenant Colonel Ojukwu to proclaim the region as Independent Republic of Biafra; Colonel Ojukwu on May 30, 1967 did so. Consequently, Colonel Gowon announced that Colonel Ojukwu had been dismissed from the Nigerian Army, and sacked as Military Governor of Eastern region.[28] Hostilities then broke out between Federal Troops and Biafran Forces on July 6, 1967.[29]

The implication of Ojukwu’s declaration is an effective excise of the Eastern region from the Federal Republic of Nigeria. Thus, it was the frantic effort of the Federal Government of Nigeria to stop the secession bid of the Eastern region and the passionate desire of Ojukwu to ensure the survival of Biafra that erupted the civil war.[30] The Nigerian civil war is unique in the context of the nation’s history, because it portrays the most vivid expression of a country turning against itself.[31] The Nigerian civil war can be analyzed within the context of genocide as debates on its genocidal trait and otherwise still lingers and trails Nigerian history, crystallizing into disenchantments in the present.[32]

The Question of Genocide

The crime of genocide can be committed in times of peace and in times of war.[33] However, to understand the occurrence of genocide in the context of civil wars, it is vital to fully appreciate the nature of events in the civil war in question. In civil wars, there exists an armed conflict between two or more organized parties,[34] one of them being the government. What they all have in common is that in the hostilities each party will explore and maximize its advantages and possibilities to defeat its rival party.[35] Consequent upon these dynamics of continuing hostilities in armed conflict, the defenseless civilian population is caught in the web of being utilized by the warring parties to either gain territorial control or reduce loyalty to rival party. These war antics and dynamics naturally flow into human atrocities of varying degrees. Where the intention of the party at advantage is to end the life and existence of a group of the population or to seriously damage its legacy towards the greater aim of winning the civil war, in such situation, the possibilities of genocide is highly probable.[36]

Maria Balen Gonzalez rightly observed that in genocide, “…it is possible to identify two components on the dynamic of violence: The perpetrator of the violence and the group towards which the violence is directed.”[37] This perpetrator can be any organised party in the civil war. It must however be stated that the government has held this position in majority of cases of genocide during civil wars.[38] This is principally because the government enjoys the advantage of access to state structures, powers and apparatus for carrying on violence towards a selected group. As Valentino rightly argued, often, if government feels threatened by a group, genocide might be the tool to reinforce its position in power.[39] However, it must be emphatically stated that, for the atrocities of a perpetrator in civil war to amount to genocide, such atrocities must be carried out with the motive to end the life and existence of a group or to damage and extinct the legacies of such a group as a collectivity.[40] The victim groups are more often minority group identified by its national, ethnical, religious and racial identity.[41]

In the context of Nigerian civil war, it is very imperative to state that the finding of genocide or otherwise can only suffice after a thorough assessment of the nature of the conflict, and the resultant atrocities in relation to whether the Federal government of Nigeria had the requisite special genocidal intent (Dolus Specialis) to bring about the resultant prohibited act – genocide. The conflict must further be considered in relation to some basic elements of the crime of genocide as stipulated by relevant instruments.[42] 

Nature of the War

The hostilities during the Nigerian civil war took place predominantly in the Eastern region, that is, the area that was proclaimed by Ojukwu as Republic of Biafra.[43] Armed conflict commenced between the Federal troops and the Biafran soldiers upon the said proclamation of State of Biafra on 30th May, 1966 almost immediately. In July, 1966 the Federal troops attempted to exert control over the Eastern region after a determined and successful defense which did not yield much fruit. However, the Biafran troops moved across the River Niger into the Mid-West a month later. Aided by Igbo Officers and soldiers in that area, the Biafran troops installed a government under a Mid-Western Igbo officer, Major Albert Okonkwo. Upon this event, the Mid-West then proclaimed its own independence as a separate state from Nigeria and Biafra. This signaled an imminent danger of disintegration of Nigeria into shreds.[44]

However, the advance of Igbos panicked the resistance of the Yoruba dominated Western region, especially after radio Biafra promised that the West will also be liberated. At this point, Chief Obafemi Awolowo had to go to the Federal Government with other Yoruba political leaders to pledge their support for the oneness of the Federal Republic of Nigeria.[45] By this act, the Yoruba and Hausa-Fulani people along with other minorities were apparently held together by Anti-Igbo sentiment and common pursuit of the war.[46]

As stated earlier, the Biafran troops in a surprise maneuver, not contemplated by the Nigerian Federal troops took over the Mid-West region. Ojukwu explailned his plans, thus:

“Our motive was not territorial ambition or the desire of conquest. We went into the Mid-West (later declared the Republic of Benin) purely in an effort to seize the serpent by the head; every other activity in that Republic was subordinated to that single aim. We were going to Lagos to seize the Villain Gowon, and we took necessary military precautions.”[47]

Notwithstanding the euphoric verbal heroic espoused by Ojukwu, John de St. Jorre, a reporter for The Observer, gave a far more subdued picture of Biafran Army readiness and organization.[48] He sarcastically stated:

“The Biafrans “stormed” through the Mid-West not in the usual massive impediment of modern warfare but in a bizarre collection of private cars, “mammy” wagons, cattle and vegetable trucks. The command vehicle was a Peugeot 404 estate car. The whole operation was not carried out by an “army” or even a “brigade”…but by at most 1,000 men, the majority poorly trained and armed, and many wearing civilian cloths because they had not been issued with uniforms.”[49]

After the Biafran invasion, Gowon re-organised his strategy preparatory to launching and offensive attack on Mid-West (“the Republic of Benin”). The Nigerian Federal troops successfully pushed back the Biafrans and arrived at “the Republic of Benin” in September, 1967. The retreating Biafran forces, according to several accounts, allegedly beat up several Mid-Westerners who they believed had served as saboteurs.[50] Nigerian radio reports had claimed that the Biafrans shot many innocent civilians as they fled the advancing Federal forces.[51]

Asaba Pogrom

After the capture of Benin from Biafran forces, the Federal troop advanced towards the River Niger, arriving at Asaba in early October, 1967.[52] There are multiple versions of what transpired when the Federal troops arrived at Asaba. The fears of the people of the town before their arrival were realized. In few days, up to one thousand inhabitants of Asaba died because of the satanic cruelty of the Federal troops; the majority in a single and systematic pogrom of men and boys on October 7, 1967.[53]

In the evening of October 6, 1967 leaders of Asaba ordered town criers to summon everyone to assemble to welcome the Federal troops and offer a pledge of loyalty to “one Nigeria”.[54] The people were asked to wear akwa ocha, their traditional ceremonial white clothing that signifies peace. To appease the Federal troops, the people were matching, singing, drumming and chanting “one Nigeria”. The expectation of the people of Asaba was quickly dashed when the matchers were immediately flanked by Federal troops to prevent escape. Eye witnesses report that the soldiers selected males at random and executed them in full view of participant.[55] According to Peter Okonjo:

 “Women who came with their sons were removing their skirts and gloves to disguise – so that their male children… are no longer men, but women. So when I saw this scenario going on and I felt something is wrong. If this women can disguise their children and my mother is not here, what do I do? And I looked at the whole place there is no where for escape.”[56]

After women had left the crowd, machine guns were revealed and mass shooting began at random. Ify Uraih, who was thirteen years old at that time, was at the disastrous welcoming parade with his father and three older brothers. Ify’s narration is as follows:

“Some people broke loose and tried to run away. My brother was holding me by the hand; he released me and pushed me further into the crowd…they shot my brother in the back, he fell down and I saw blood coming out of his body. And then the rest of us…just fell down on top of each other. And they continued shooting…Host count of time, I don’t know how long it took… After sometime there was silence. I stood up…my body was covered in blood, but I knew that I was safe. My father was lying not far away; his eyes were open but he was dead.”[57]

Between five hundred and eight hundred people seem likely to have died in addition to many who have died the previous day.[58] However, no precise number of casualties has been established in the Asaba massacre of the Nigerian Civil War.[59]In1981, the Asaba Development Council compiled a list of names of 373 confirmed dead, but acknowledged that many more were not included. Eye witness estimates range from 500 to more than 1,000.[60] 

After the October 7, disaster worst killings stopped. However, Federal troops were said to remain in Asaba, waiting to cross the River Niger into Onitsha. Some remained in the houses of families whose men folk they have executed perpetrating individual violence, sexual assaults and rape.[61] Gertude Ogunkeye recounted how soldiers abducted a young woman for a week before they brought her back to her father, the father has this to say; “When she came back, she was a different girl…She couldn’t talk to any body, she was very weepy… You see we come from a culture where talk like rape is a taboo, you know, a girl says she is raped, getting married is an impossibility”.[62]

Just as mothers tried to disguise their sons from execution by dressing them in girls’ apparels on the October 7, 1967 pogrom, so did families try to protect their daughters by disguising them as old women.[63] Victoria Nwanze in her early teens in 1967, recalled: “I carried my younger brother at the back, and my grandmother gave me her dress… so that I would look like an old woman. The same thing with my sister and cousin”.[64] Martina Osaji also reported that her family protected her elder sister, who was then eighteen years old by dressing her in a grandmother like apparels to disguise her as an old woman.[65] According to Bird and Ottanalli, many other persons interviewed on the Asaba pogrom spoke of rape, abduction and forcible marriage.[66] By the second week of October 1967, the people of Asaba had all vanished and taken refuge in near by bush, smaller towns and others fled for safety into the strong hold of Biafra.[67] It must however be stated that, the October 1967 Asaba massacre is virtually absent from published records and contemporary Nigerian news reports made no reference to the killings, only very limited coverage was said to be provided by international press.[68]

Calabar Massacre

The Federal troop without much resistance took over Calabar in early 1968. “In an action reminiscent of Nazi policy of eradicating Jews throughout Europe just twenty years earlier, the Nigerian forces decided to purge the city of its Igbo inhabitants.”[69] One thousand to two thousand Igbos were said to have been killed, most of whom were civilians.[70] It was equally reported that there were numerous other atrocities committed at the Calabar region by Nigerian Federal troops.[71] The Times of London also reported that, “the Nigerian forces opened fire and murdered fourteen nurses and patients in the wards”.[72] This incidence took place at Oji-River.[73] In Uyo and Okigwe numerous lives were said to have been lost to the Nigerian soldiers.[74] According to Achebe, after several weeks of sustained air, land and sea pounding; a period reportedly characterized by military atrocities: rape and looting, Port-Harcourt finally fell to the Nigerian Federal troops on May 12, 1968.[75] Other Igbo cities like Aba, Owerri, Abakelike and Afikpo also fell to the Nigerian forces after recording good number of civilian Igbo casualties.[76]

The Abagana Sector

The Biafran soldiers were certainly not spectators. The proclamation of the Eastern region of Nigeria as the Sovereign State of Biafra which brought about the existence of Biafra – “the land of the rising sun” – necessitated the establishment of a formidable army to vehemently fight the Nigerian “intruders”. The natural consequence of the proclamation of a Sovereign State is a sure emergence of an army which is a definite attribute of a recognised state. Biafra with its passionate quest for international recognition did have one. It had an army irrespective of its glaring inadequacies and logistic depravity. It had an army that courageously fought to save its embryonic life from the Nigerian “vandals”.[77]

In numerous instances during the Nigerian Civil War, the Biafran soldiers had victorious outings, over powering the Nigerian forces. One of such victories was at the Abagana sector of the Biafran military formation.[78] The Federal troop finally overcame the resistance of Biafran solders and broke through Onitsha on March 25, 1968. This was the second attempt after suffering great casualties at the hand of Biafran soldiers when they first attempted to do so. On March 31, 1968 Colonel Murtala Mohammed quickly deployed a convoy of ninety-six vehicles and four amoured cars to facilitate the plan of advancing and crushing the heart of Igbo land. On this plan of the Federal troops, Biafran intelligence was quick to respond, and Major Jonathan Uchendu capitalised on the intelligent report at his disposal to formulate a laudable counter-attack that sealed up the Abagana Road. Major Uchendu ordered his seven hundred men to lay ambush in the forest near Abagana waiting for the advancing large Nigerian troop, which was an amalgam of the first and second division of the Nigerian army. Major Uchendu’s strategy was excellently successful. His troop plundered the troop led by Colonel Murtala Mohammed within one and half hours.[79] The Nigerians suffered about five hundred casualties, while there was a very minimal loss of life on the Biafran side.[80] Nigerians who escaped were found wandering aimlessly in the bush. On this episode, the deceased Nigerian foremost literary icon Chinue Achebe related as follows:

“There were wide spread reports of atrocities perpetrated by angry Igbo villagers who captured this wandering solders. One particularly harrowing report claimed that a mob of villagers cut their capture into pieces. I was an eye witness to one such (sic) angry blood frenzy of retaliation after a particularly tall and lanky solder – clearly a machinery from Chad or Mali wandered into an ambush of young men with matchets. His life less body was found mutilated on the road side in a matter of seconds. “Gifts” of poisoned water filled calabashes were left in strategic places throughout the deserted villages to “welcome” the thirsty federal troops.”[81]

The aggression and stiff resistance put up by Biafran army was believed to be associated with the fresh supply of arms they got from Gabon[82] and France.[83] However, it was observed that throughout the period of war, the Igbo people were consistent in their charge that the Nigerians had a purposeful design to exterminate and extinct the Igbo people from the face of the earth. This genocidal calculation the Igbo’s argued, was premised on a holy jihad proclaimed by mostly Islamic extremists in the Nigerian army.[84] In response to the jihad postulation, Harold Wilson advanced a forceful argument to the effect that the issue of jihad by the Muslims against the Igbo race is watery because, according to him, only 1,000 of the 60,000 – 70,000 federal solders were Muslim Hausas from the North.[85]

A lot more journalistic and scholarly arguments had been advanced in favour of genocide. For instance, Dan Jacobs in his book The Brutality of Nations, uncovered a paragraph from an editorial in the Washington Post of July 2, 1969. It states; “One word describes the policy of the Nigerian military government towards secessionist Biafra: genocide. It is ugly and extreme but it is the only word which fits Nigerian’s decision to stop the international committee of the Red Cross, and other relief agencies from flying food to Biafra.”[86] Two Canadian Diplomats were said to have reported that genocide is in fact taking place against the Igbos in the civil war. One of them was said to state that, “anybody who says there is no evidence of genocide is either in the pay of Britain, or being a deliberate fool”, after his visit to the war torn Eastern region.[87] Lloyd Ganison of the New York Times was also said to have reported the harrowing account of genocidal activity on the side of the Nigerian troop.[88]

Still on the assertion that the Nigerian Civil War constitutes genocide against the Igbo people, an American historian was said to have observed as follows:

“The terrible tragedy of the people of Biafra has now assumed catastrophic dimension. Starvation is now claiming the lives of an estimated 6,000 Igbo tribesmen, most of them children. If adequate food is not delivered to the people in the immediate future hundreds of thousands of human beings will die of hunger.”[89]

Commenting on the civil war situation in Nigeria, American President Richard Nixon in his campaign speech on September 10, 1968, states:

“Until now efforts to relieve Biafran people have been thwarted by the desire of the central government of Nigeria to pursue total and unconditional victory… But genocide is what is taking place right now – and starvation is the grim reaper… The destruction of an entire people is an immoral objective of wars. It can never be justified; it can never be condoned.”[90]

Many more writers, journalists, scholars and commentators hold firmly to the assertion that the nature of the Nigerian Civil War amounts to genocide against the Igbo people of Eastern Nigeria. However, some veterans, commentators and pictorial situations and accounts tends to suggest otherwise.

In a recent study conducted on the Nigerian Civil War, one Dr. Augustine Macaulay Ayeni, a civil war veteran, who fought in 124 Battalion of the First Division of the Nigerian Army, observed as follows:

“During the war every soldier from the lowest recruit to the general was given a Code of Conduct of war. The rules were followed strictly. If a place is captured, the commander will ask the populace to come out and food eaten by solders will be used to feed those people…Those of the civilians sick will be taken to MRS[91] for treatment.”[92]

On the assertion that, the nature of engagement in the Nigerian Civil War constitutes genocide of the Igbo nation, Dr. Ayeni has this to say:

“Well, everybody has right to his opinion, but basically, from my practical experience and the meaning of genocide, I will not agree with such an assertion, because I saw one on one how soldiers in fact behaved during the war. Between Nigeria soldiers and even the civilians. There are some instances where Biafran solders and Nigeria solders interact, smoking and drinking together, sometimes… More so, as most of them were members of Nigerian army before…I will not agree with such a conclusion that it was genocide.”[93]

Commenting further on the Code of Conduct, which embodies the rules of engagement in combat; Dr. Ayeni, emphasized that the Code of Conduct which prohibits certain conducts in war was followed strictly. He stated that, any act of violation of the Code of Conduct is a deviant behaviour, which is met with strict punishment. He further stated that, he could remember instances where Nigerian soldiers who shot Biafran soldiers that surrendered were charged, tried, condemned and shot by firing squad.[94] On this issue Dr. Ayeni concluded thus; “if Nigerian army actually followed such steps, how can some body write and say it was genocide.”[95] He further stated that, when Nigeria soldiers are coming to an area, there is always an announcement to the people of that area, to remain inside lie down under their bed or a protective wall to avoid being harmed by wandering bullets.[96] Dr. Ayeni conclusively stated that the motive of the civil war is unification of the country, which he said brought about the much celebrated slogan; “keeping Nigeria one is a task that must be done.”[97]

Another civil war veteran also interviewed in the said study is Idris Umar (MWO).[98] He joined the military in 1967. He was of the Second Division of the Nigeria Army.  He emphasized the strict adherence to the Code of Conduct by Nigerian soldiers during the civil war. He stated that the Code of Conduct enjoins soldiers not to kill until their own life is in danger. He further corroborated Dr. Ayeni’s statement when, he narrated that as a Company Sergeant – Major, he usually ask the civilians and captured Biafran solders to line up with his solders to take food.[99] MWO Umar, during the interview, consistently reiterated the fact that, the civil war was a fight between brothers, with the motive of bringing back home a straying brother.[100] In his words, he states: “We don’t want our brothers to go astray, that is why we fought back to see that we bring them back. They are trying to go astray, that is why we fought to bring them back.”[101]

Captain Ojotu (Retired.) also fought the civil war. He corroborated most of the statements by Dr. Ayeni and MWO Umar (Rtd.). He observed that the Nigerian civil war was fought with the sole aim of bringing the Igbos back and nothing more.[102] He equally admitted the existence of a Code of Conduct which enjoins all solders on the Nigerian side not to kill indiscriminately in the cause of war; that the Code of Conduct often serve as a reminder to the soldiers that the Igbos are not real enemies in its strict meaning.[103]

It was contended that even proponents of Biafra for the most part, acknowledged that, it is not the official policy of Nigerian government to commit genocide against the Igbos.[104] As stated earlier, they contended that some over-zealous local military commanders intended and indeed tried to wipe out as many Igbos as possible;[105] stating that some Muslim commanders regard the war as a holy war (Jihad) against the Igbo people. An international military observer group, on the other hand, reported that there was no evidence of intent on the part of Nigerian troops to wipe out the Igbo people.[106] At the time of the civil war, it was contended that, 30,000 Igbo people still lived in Lagos, and over 500,000 still stayed in the Mid-West, with some still holding senior posts in Federal Government.[107] Some British officials were said to have seen abandoned property committees and reconstruction and rehabilitation committees in many states, and that those committees were administering Igbo peoples’ houses and shops, that were abandoned in the hope that the Igbos will return.[108] The question that naturally flows from the foregoing is that, can such an act be found in a genocide heart that pursues a state policy of annihilation?

As stated earlier, the Biafrans were ready for what they consider as a war of liberation. They were not oppressed and helpless people at the mercy of the Federal troops. They fought fiercely; which caused the Federal troops unprecedented loss in human lives.[109] Ojukwu’s speech at the early stage of the war, firmly buttresses this assertion. Ojukwu states:

“In spite of initial handicaps, our brave and gallant forces on land, air and sea, have not only held their own but are giving the enemy exactly what they deserve. The initiative has now passed permanently into our hands. The daily toll on enemy lives has been heavy and sometime staggering. That the enemy has not called off aggression in the face of their heavy losses in human lives is another evidence of their utter disregard for those lives…We have destroyed the enemy in Bonny and liberated that ancient and historic island. The remnants of the enemy in the Enugu sector are being systematically destroyed. The same is true of Nkalagu sector. In the Ogoja sector our advances and successes have been steady and consistent. In the Calabar sector, the enemy is being starved to death…”.[110]

In a rather cool and firm manner, the initial speech of Gowon at the early stages of the civil war was devoid of egocentrism and extreme pride of gallantry, as Ojukwu’s speech. He only congratulated the solders and reiterated the need for them to consistently abide by the code of conduct and their oath as soldiers, clearly restating the objective of the war among other issues. He says:

“I congratulate you, members of the armed forces and the police, for the magnificent discipline which you have shown so far. You must continue to conduct yourselves strictly according to your code of conduct and oath as soldiers. The great cause for which we are fighting demands this of all of us. The objective of the current operations to crush the rebellion of Ojukwu and those whom he has blackmailed and misled…Our detractors have tried to confuse issues. Some of them have suggested that we are fighting a religious war – a war of “Federal Moslems” against “Christian rebels”. This is non-sense. The entire world should know by now that more than sixty percent of the officers and men of the Nigerian Armed Forces are Christians and not Moslems…Let the malicious propaganda amongst our detractors cease. Let the rebels stop pushing innocent Igbo youths and others in their thousands to a senseless untimely death. I and my Government guarantee the Ibos (sic) a future of absolute equality with all the other ethnic groups in this country…”[111]

From the afore-cited speeches of Ojukwu and Gowon at the initial stage of the civil war, it is instructive to note that Ojukwu’s statement was a forceful assertion and glorification of the gallantry and exploit of the Biafran soldiers against the Federal troops which he ceaselessly referred to as “enemy”, while the statement of Gowon restated the determination of the Federal Government to keep a united Nigeria, with a promise to keep the cherished place of the Igbos in Nigerian politics. Unlike Ojukwu, Gowon used the word “detractors” in referring to the Biafran soldiers and not enemies. It is humbly submitted that, the choice of the word “detractors” by Gowon instead of “enemies” may just be a pointer to the fact of the Nigerian government disposition on the war, which it sees as not fighting a real enemy but a straying brother. This mentality of the Federal Government might be the reason why all captured Igbos were found alive at Federal war camps at the end of the war while the perception of Nigerians by Biafran soldiers might have informed the destruction of all except three of the hundreds of Nigerian soldiers captured by Biafran.[112]

The foregoing, gives an overview of the nature of the crisis and engagements of the Nigerian civil war. The appreciation of this crisis in the light of the crime of genocide can only suffice after a consideration of the law of genocide.

The Law of Genocide

The legal prohibition of some forms of genocide such as wars of annihilation, developed ages before their codification in Genocide Convention of 1948 and the subsequent Rome Statute of International Criminal Court.[113] These aged long prohibitions were clothed in treaties and customary rules of international law.[114] Even though, as it were, the term genocide was unknown, certain form of acts, which could be described as genocide in present days, were violations of customary international law, which prohibits such heinous acts.[115]

However, the crime of genocide which has ravaged humanity for as long as human history was finally codified in an International Instrument called the Convention for the Prevention and Punishment of the Crime of Genocide (CPPCG) 1948;[116] which became operational in 1951. The provision of this Convention was subsequently re-echoed in the same wordings in other instruments such as the Rome Statute of International Criminal Court (ICC);[117] Statute of International Criminal Tribunal for the former Yugoslavia (ICTY)[118] and Statute of International Criminal Tribunal for Rwanda (ICTR).[119] These are the extant laws regulating genocide in international law. It must however be stated that, the preemptory nature of the crime as a customary rule of international law may ignite the prosecution of such a crime even if a state is not signatory to the extant instruments.[120]

The law of genocide therefore provides:

“Genocide means any of the following acts committed with intent to destroy, in whole or in part a national, ethnical, racial or religious group as such:

Killing members of the group;

Causing harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical

 Destruction in whole or in part;

Imposing measures intended to prevent birth within the group; and

Forcibly transferring children of the group to another group.”[121]

Resolving the Question of Genocide in the Nigerian Civil War

In resolving this highly debatable question which has over the years adored pages of literature from a strict legal perspective; we shall formulate two fundamental issues for determination, which we shall set out to determine based on our examination and assessment of the nature of the crises in the Nigerian Civil War.

Issue 1

Whether by the nature and character of military engagement between the parties, genocide would be said to have been perpetrated against the Igbo people.

Issue 2

Whether the evidence of the nature and circumstances of the civil war crises satisfies the requisite actus reus and mens rea of genocide.

On Issue 1

Zwaan, rightly observed that nearly all authors in the field of genocide studies are unanimous on the fact that genocide must be carefully distinguished from war and civil war.[122] War in modern sense usually entails a violent conflict between two or more sovereign states, primarily fought between their armed forces which may bring about many military casualties and many civilian casualties.[123] Military casualties and civilian victims of war are not considered as victims of genocidal crimes. The same is also true of civil war.[124] Z’waan contended that civil war may also lead to considerable number of casualties amongst the fighting forces of the parties involved and may even bring about many civilian deaths, either directly or indirectly or through atrocities related to military action, but again, the victims are usually not seen as victims of genocide.[125] Furthermore, it was posited that what distinguished genocidal situation in principle from situation of war and civil war is that during genocides one of the parties, that is the perpetrator group is armed and organised to use force which the other party, that is the victim group, is not armed or organised to use force. In genocidal situations, the means of violence and means of organisation are extremely unevenly distributed, and overwhelmingly concentrated on the side of the perpetrators.[126] Genocide is therefore not war nor civil war, it is a form of one-sided killing; where the victims are essentially defenseless and helpless against the powers of the persecutors, even when they do not pose any threat, they are targeted for persecution, forcible uprooting, deportation and potential and actual destruction.[127] However, even the Genocide Convention in Article I states that genocide could be committed in time of war or peace, the type of war envisaged is that of extreme defenselessness and where the means of violence are extremely unevenly distributed.[128]

This researcher agrees in totality with the foregoing postulations, which Zwaan rightly stated as the unanimous position of most scholars of genocide studies.[129] From the above stand point, a lot of questions come to mind, viz:

  • Were the Igbo people (Biafrans) essentially defenseless and helpless against the Nigerian Federal troops?
  • Were the Igbo people (Biafrans) unorganized and unarmed?
  • Was the means of violence extremely unevenly distributed and overwhelmingly concentrated on the side of the Nigeria Federal troops?
  • Is the Nigerian civil war situation an entirely one sided killing of the Igbos?

In answering these questions, it is instructive to note that Biafra had an army that fought fiercely, which according to Ojukwu in his eloquent speech at the early stages of the civil war commended the army for fighting on the sea, air and land which he stated has caused the enemies very high and sometime staggering death toll, at a lot of sectors of the Biafran military formation[130]. Further noteworthy is the systematic and highly technical ambush led by Major Jonathan Uchendu at Abagana sector, which saw to almost a total annihilation of a battalion of the Nigerian federal troop.[131]

It should also be remembered that the Biafran soldiers captured the Mid-Western region and made an offensive crackdown towards Ore with the passionate quest to “liberate” Lagos and capture “Jack” Gowon.[132] It was equally on record that some countries recognized the state of Biafra and supplied of weapons started coming into Biafra from such countries, with France as the flagship.[133] This was believed to have fortified Biafra and strengthened its resistance. 

Based on the above, it is safe to state that the Biafrans had an organised army that fought gallantly during the civil war, which led to the death of numerous Nigerian soldiers. Therefore, the killings during the civil war can not be said to be one sided as the death on the part of the parties if considered in relation to the population will be enormous on the part of the Federal troop. Ojukwu himself had echoed this reality in his speech at the early stages of the war as earlier observed.[134]

On Issue 2

The law of genocide examined earlier stipulates series of acts (a) – (e) as constituting the physical element of the crime of genocide, otherwise referred to as the actus reus of the crime. These acts that constitutes the physical elements if done to a group protected by the law of genocide with the requisite mental element or mens rea, may amount to genocide. The groups sought to be protected are national, ethnical, racial and religious group. The mental element of the crime of genocide is the special intent (Dolus specialis) to destroy any of the stipulated group in whole or in part. While the physical element as stated earlier are those series of act (a) – (e) viz:

Killing members of the group;

Causing serious bodily and mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

Imposing measures intended to prevent birth within the group; and

Forcibly transferring children of the group to another.[135]

The pertinent question and the basic issue sought to be determined at this point is whether the physical element of genocide enumerated above and the requisite mental element can find a place in the crisis of the Nigerian civil war to establish a claim of genocide against the Igbo people of South-eastern region of Nigeria.

Protected Group

It is without any doubt that the Igbo people as a collectivity could rightly fall within the groups protected by the Genocide Convention and other instruments on genocide. This is because the Igbo people could rightly be described as an ethnic group. Beyond ethnic group, they could even rightly be described in the context of Biafra as a national group, which is still a group that enjoys protection by the extant law of genocide[136]. Though the declaration of the state of Biafra might be seen by the Nigerian Government as illegal, a contravention of its Constitution and a crime against the state (treasonable felony), it must be stated that the doctrine of recognition of state in international law stipulates that the recognition of a state is an individual and independent act of the recognizing state.[137] Therefore, being recognised by some countries and having satisfied the basic requirement of statehood in international law,[138] the Republic of Biafra within the thirty months of its existence could be said to be a national group.[139] It is therefore very glaring that the Igbo people of Eastern Nigeria fall within the group(s) envisaged by Article II of the Genocide Convention of 1948 and other already mentioned relevant provisions of other international instruments on genocide.[140]

Physical Element (actus reus)

As earlier stated, the physical elements of the crime of genocide are the different acts specifically stated in Genocide Convention[141] and other relevant instruments on genocide.[142] These acts (a) – (e) is what constitutes the actus reus of the crime of genocide. To amount to genocide, it is not the requirement that the series of acts (a) – (e) conjunctively occur. The occurrence of one of the acts disjunctively, with the requisite mental element may amount to genocide.

In relation to Nigeria civil war crises, it can conclusively be said that killing members of the Igbo ethnic group took place. This is certainly not contentious in civil wars; even though it has been established that the killings were on both sides of the warring parties, since the Federal troop too recorded high toll of death. It will equally be true of the Nigerian civil war to say that serious bodily or mental harm has been caused to members of the Igbo ethnic group during the crises situation of the civil war. What may be debatable is the series of acts (a) – (e), is (c) Deliberately inflicting on members of the Igbo group conditions of life calculated to bring about their physical destruction in whole or in part; (d) Imposing measures intended to prevent birth within the Igbo group; and(e) Forcibly transferring children of the Igbo group to another.[143] These later acts are said to be highly debatable because there is no firm nor conclusive evidence of their existence against the Igbo people during the civil war. However, their non-existence or otherwise is not fatal to establishing the existence of the physical element of genocide, since the fact of killing members of the Igbo group alone could disjunctively establish the existence of the actus reus of genocide if it crystallizes from a blameworthy mind with the required intent. 

Flowing from the foregoing analysis, it is very clear that acts constituting the actus reus or physical element of genocide existed against the Igbo people in the Nigerian civil war crises. The critical determinant question is whether these physical acts that brought about prohibited results were product of special intent pursuant to a genocidal policy of Nigerian Federal Government.

Mental Element (mens rea)

The mental element of the crime of genocide envisaged by the Genocide Convention of 1948 and other related international instruments is the “intent” to destroy in whole or in part, a national, ethnical, racial or religious group.[144] In the absence of the required intent, whatever degree of atrocity constitutes an act, and however similar it might be to the act described in the convention and other relevant laws, the act will still not be genocide.[145] Consequently, all the acts stated as constituting the actus reus of genocide cannot ignite criminal responsibility for genocide, except such acts were accompanied with the requisite genocidal intent.[146]

The intent requirement is different from the usual intent or general intent requirement for crimes known as dolus. In genocide, special intent called dolus specialis is required. This type of intent is said to have the component of “knowledge” and “intent”.[147] Intent being of the mind is very difficult to ascertain, that is why the Akayesu Trial Chamber observed that, “intent is a mental factor which is difficult, even impossible to determine”,[148] and stating further that, short of confession of the accused, intent can only be inferred from number of presumption and circumstances.[149] It is equally important to establish the existence of a planned policy in pursuit of genocide, which may be indicative of genocidal intent. However, a Trial Chamber of Rwandan Tribunal rightly observed that, even though a specific plan to destroy does not constitute an element of genocide, it will seem that it is not possible to carryout genocide without a planned policy or organization.[150] Therefore the existence of such a plan policy will be a strong indicator of the presence of the special intent requirement necessary for the crime of genocide.[151]

In relation to Nigerian civil war, the crucial question is whether the Nigerian Federal Government led by Yakubu Gowon had special intent to pursue a genocidal policy against the Igbo people. In resolving this question, it is very important to review some vital indices of the crises already examined in this chapter while considering the nature of the war.

Dr Augustine Ayeni and Master Warrant Officer (MWO) Umar (Rtd) in a study conducted by NNTPC stated that all soldiers were given a code of conduct by the military authority which enjoins soldiers to abide by the code of conduct in their military operations during the civil war.[152] Dr. Ayeni emphatically stated that the code of conduct was followed strictly. He said the code of conduct prohibits all form of inhuman conduct in combat. On this, MWO Umar (Rtd.) said the code of conduct categorically stated that they should not kill until they are at the danger of being killed.[153] Still on the code of conduct, Dr. Ayeni observed that, the violation of the code of conduct, which prohibits inhumane treatment of civilians and prisoners of war, is treated as a punishable deviant behaviour. He re-called an incident where a Nigerian soldier shot and killed a harmless pregnant Igbo woman and the soldier was charged, court martial, found guilty and equally shot to death.[154]

General Gowon’s speech at the early stages of the civil war was not like the speech of Ojukwu which hailed the gallantry and exploit of the Biafran soldiers in destroying the enemies on the air, on the sea and on the land. Gowon in his speech consciously congratulated the Nigerian soldiers and the police and urge them to continue conducting themselves strictly in accordance to the code of conduct and their calling. The speech emphasized the objectives of the civil war as:

Preservation of the territorial integrity of Nigeria;

Ensuring the equality of all ethnic groups in Nigeria;

To strengthen the new administrative structure of Nigeria against the tendencies of domination;

To create internal condition of stability and freedom of movement of persons and goods necessary for the most rapid economic and social development of Nigeria; and

To win the respect of the outside world for ourselves and for the African and its ability to order its own affairs.[155]

Gowon in his speech also stated the conditions for lasting peace and cessation of military operations were; “First, the rebels must renounce secession… Second, the rebel regime must accept the present administrative structure of a Federal Union of Nigeria comprising of twelve states… Third, a body of men must come forward from the East Central state willing to work for national reconciliation, peace and reconstruction…”[156]

It is important to note that Gowon – in the speech under review – promised the Igbo people a future of absolute equality with all the other ethnic groups in Nigeria.[157] Equally worthy of note and emphasis is the fact that about one million Igbo people were living in Lagos and Mid-West during the civil war, and there was no evidence of their being targeted for annihilation.[158] It is equally instructive for the determination of the question of genocide in the Nigerian civil war to recall the fact that, at the end of the civil war all captured Igbo rebels in Federal troop war camps were found alive and released while at the Biafran camp hundreds of Federal soldiers caught were killed except three who have some Igbo affinity.[159] Gowon’s declaration of no victor no Vanquish,[160] and the subsequent policy of Reconciliation, Rehabilitation and Reconstruction; and the assertion by British observers that some states had committees watching over the properties of Igbo people and managing the properties in expectation of their return, speaks volumes about the intention of Nigerian Federal Government.

Conclusion

In the face of all these indices of the crises, code of conduct, speeches and policy pronouncements; will the Federal Government of Nigeria be said to have pursued genocidal policy against the Igbo people of South Eastern Nigeria during the Nigerian civil war? It is apt to conclude that the Nigerian Federal Government did not pursue a genocidal policy against the Igbo people; neither did it possess the requisite mental element for the crime of genocide. Consequently, it is humbly posited that the Nigerian civil war crises situation between 1967 and 1970 may not suffice as genocide in the strict legal sense, but pockets of war crimes and crimes against humanity might have been committed.

Footnotes

[1] Some of the crises includes; Kano Riot 1966, 1964 Federal Election Crisis, 1965 Western Region     

Electoral Crises, Jos Crisis 1999 to date, Census Crisis 1963 - 1965

[2] Okoye, F. (2000) (ed.) Victims: Impact of Religious and Ethnic Conflicts on Women and Children in Northern Nigeria, Human Right Monitor, Kaduna, p. 2.

[3] Aremu, J.O (2011) “The Fulani Jihadist and its Implication for National Integration and Development in

  Nigeria” African Research Review 5(5) serial 22, pp.1-12.

[4] Queen Amina of Zaria., “African Feminist Ancestors”, Africa Feminist Forum.   

   www.africanfeministforum.com/queen-amina-of-zaria-nigeria. (Accessed 25/03/2018. 12:22GMT.)

[5] Trip Down Memory Lane (2014) “Igala People: Ancient Nigerian Inhabitants of Niger-Benue   

   Confluence in Kogi State”. http://kwekwudee-tripdownmemorylane.blogspot.com/2014/03/igala-people-ancient-nigeria.html?=1(Accessed on 25/03/2018 14:11GMT) 

[6] World Languages and Cultural Documentation Project (2013) “Ejubejuailo – ATA’S Pectoral Mask”   

   Igalapedia. http://igalapedia.com/ejubejuailo-the-atas-pectoral/mask/

[7] Okoye, op. cit., n. 2, pp. 2-3

[8] Osagie, J.I., (2014)” Colonial Conquest and Resistance: The case of Esan People of Benin Province of 

  Nigeria”, Canadian Social  Science, vol. 10, no. 4

[9] Rotimi, K and Ogen, O.,(2008) “Jaja and Nana in the Niger Delta Region of Nigeria: Proto-Nationalists

  or Emerging Capitalists” Journal of  Pan African Studies, vol. 2, no. 7., These writers recognized the

  fact that King Jaja of Opobo and Governor Nana of Itsekiri as pioneer nationalists in the struggle against

   imperialism. However, in another breath , the writers described Jaja and Nana as Nigeria’s first modern

   capitalists                                 

[10]November – December, 1929., This was a riot led by women in the province of Calabar and Owerri-

   Nigeria, it was a protest against high imposition of taxation by Colonial Government.

[11] Rotimi and Ogen, op. cit., n. 4.

[12] 1963 – 64, the 1962 census crisis was actually not the first census to become smeared in suspicion and

   controversy. Some other effort to level of distrust and revolt, this is because of mutual suspicion and

   accusation of regional bias. The 1952-1953 census was avoided by many Nigerians as it was suspected

   to be a plot to increase taxation. Nigeria become engulfed in high political controversy that majority of

   Nigerians are in the Northern Region, a basis that was used for allocation of legislators at the centre.

   See Diamond, L., at http://link.springs.com/chapter/10.007%2F978-1-349-08080-9-5 last visited

   07/01/2007 at 20:55 (GMT)

[13] 1964 Federal Election crisis and 1965 Western Region Electoral Crisis were the most prominent

[14] This coup was believed to be executed by Igbo elements in the military against the Northern Political

    Leader and top military officers who were killed. This was followed by a revenger counter coup by

    Northern elements in the Army.

[15] Nigerian at this time became suspicious of each other, thus identity politics and regional mindedness

    held sway, therefore weakening the collective aspiration of the embryonic state.

[16] Folade, infra., n.23, p. 122.

[17] Over 100,000 people killed – see: Bartrop, P. R(2012) A Biographical Encyclopedia of Contemporary

    Genocide, Santa Barbara:ABC – CLIO, p. 107. And over 3,000,000  people displaced – see:

    Mwakikagili (2001) Ethnic Politics in Kenya and Nigeria, Huntington Publishers, p. 176

[18] Schlesinger, A.M (1983) The Dynamics of World Power. A Documentary History of U.S Foreign

    Policy, 1945 – 1973, Chelsea House, New York, p.41

[19] Speech of President Richard Nixon in his campaign on September 10, 1968, where he described what

    was happening in the Nigerian Civil War as Genocide perpetrated by starvation, concluding that the

    destruction of an entire people is an immoral objective of war which cannot be justified and condoned.

    cited in Schlesinger, Ibid

[20] Thomas, A.N. (2010) “Beyond the Platitude of Rehabilitation, Reconstruction and Reconciliation in Nigeria: Revolutionary Pressure in Niger Delta” J. Sustain Develop. Africa. 12(1), pp. 56-57.

[21] Ibid.

[22] Cervenka, Z. (1972) A History of the Nigerian Civil War 1967-1970, Onibonje Press, Ibadan, cited in Folade, A.J. (2011) “Nigerian Civil War, 1967-1970: A Revolution?” African Journal of Political Science and International Relations, Vol. 5(3) p. 120.

[23] Folade, ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Folade, p.121

[31] Ibid.

[32]  On the genocidal debate of the Nigerian civil war crisis situation- see: Douglas, A.(2014)’Ours is a

    War of Survival: Biafra, Nigeria and Arguments about Genocide, 1967 – 1970” Journal of Genocide

    Research(16)2 – 4, p. 205. See also: Lesse, H & Dirk, M.(2014)”The Nigeria Biafra War: Postcolonial

    Conflict and the Question of Genocide” Journal of Genocide Research(16)2 – 3, p.169

[33] Art. 1, Rome Statute of International Criminal Court (ICC).

[34] For instance during the Liberian Civil War, there were three organized parties viz: The Government Faction led by Samuel Doe; The Charles Taylor fanction and the Prince Yome Johnson’s faction.

[35] Gonzalez, M.B. (2012) “Genocide: Assessing its determinant in Civil Wars”. A draft paper written to support the poster presentation of the workshop: Advancing the Scientific Study of Conflict and Co-operation: Alternative Perspective from UK and Japan at 2nd meeting Colchester UK, 20-22 March, 2012 p. 5.

[36] Ibid.

[37] Ibid.

[38] Valentine, B., and Huth, I. (2004) “Draining the Sea: Mass Killing and Guerrilla Warfare”, cited in Gonzalez, ibid.

[39] Valentine, B. (2004) Mass Killing: The Final Solution, Cornel University Press, London, cited in Gonzalez, ibid.

[40] Art. II Genocide Convention, 1948

[41] Ibid.

[42] See for example: Art. II Genocide Convention of 1948; Art. 4, Statute of International Criminal Tribunal for former Yugoslavia; Art. 2, Statute of International Criminal Tribunal for Rwanda and Art. 6 Rome Statute of International Criminal Court (ICC).

[43] This means that, the civil war was fought on the Geographical enclave of Eastern Nigeria. The area that

    colonel Ojukwu declared as Republic of Biafra om 30 May, 1967

[44] See generally: O’Connell, J., “The Scope of Tragedy” African Report, February 1968, pp. 10-15.

[45] See: The untold story of the Biafran war (From American secret documentary part 2) 14 April, 2013.

    www.nigeriavillagesquare.com>Articles

[46] Memorandum from American Jewish Congress 15 East 84th St. New York, N.Y. 10028 T.R/9-

   4500/December 27.

[47] Ojukwu, C.O. (1969) Biafra: Selected Speeches and Journals of Events, Harper & Row, New York.

[48] Achebe, C. (2012) There was a country: A personal History of Biafra, Penguin, London, p. 128.

[49] De St. Jones, The Nigerian Civil War, cited in Achebe, ibid.

[50] Achebe, op.cit., n. 48, p.206

[51] See generally: Achebe, Ibid., pp. 132-133.

[52] Ibid., pp. 209 - 210

[53] Bird, S.E., and Ottaneli, F. (2011) “The History and Legacy of the Asaba, Nigeria Massacres” African Studies Review, Vol. 54, No. 3, p. 2.

[54]  Bird and Ottanalli, Ibid.,p.4.

[55] Testimonies of John Kanayo, Hudson Odittah and Anyibuofu Onya-Onianwah, Ohaneze Petition, 1969, cited in Bird and Ottanelli, ibid., p. 10.

[56] Personal interview of Peter Okonyo, December 14, 2009. In Bird and Ottanalli, ibid. p. 10.

[57] Personal interview of Ify Uraih, October 9, 2009. In Bird and Ottanalli, ibid. pp. 10-11.

[58] Ibid.

[59] Ibid.

[60] Bird and Ottanalli, ibid., p. 11.

[61] Personal interview of Medua Uraih, December 13, 2009. In Bird and Ottanalli, ibid., p. 12.

[62] Personal interview of Gertrude Ogunkeye, December 11, 2009. In Bird and Ottanalli, ibid., p. 12.

[63] Personal interview of Victoria Nwanze, December 16, 2009. In Bird and Ottanalli, Ibid.

[64] Personal interview of Victoria Nwanze, December 16, 2009. In Bird and Ottanalli, ibid.

[65] Personal interview of Martina Osaji, October 4, 2011. In Bird and Ottanalli, ibid.

[66] Bird and Ottanalli, op. cit., n. 53, p. 25.

[67] Ibid., p. 12.

[68] Ibid., p. 13.

[69] Craig, D.T. (Rev.), writing in Presbyterian Record of December, 1967 (Scotland) cited in Achebe, op. cit., n. 48, p. 137.

[70] Friendly, A. Jnr., “Pressure Rising in Nigeria to end the Civil War as Military Standoff Continues” New York Times January 14, 1968. Cited in Achebe, ibid.

[71] Ibid.

[72] The Times of London, August 2, 1968.

[73] Ibid.

[74] Ibid.

[75] Achebe, op. cit., n.48 p. 137.

[76] Ibid., pp. 137-140.

[77] Art. 1 Montevideo Convention on the Rights and Duties of State, made the existence of an army a

    requirement for statehood.

[78] See: Ojukwu’s heroic expouse in his speech at the early stage of the war; where he applauded the

    Biafran soldiers for destroying the enemies at Bonny, Enugu, Nkalagu, Abagana and Ogoja sectors of

    the Biafran military formation – see generally Faruk, U., Infra.,n.110, pp. 86 – 87.

[79] Rilwan, “ There was a country: Ogbunigwe, Abagana ambush, Achebe and Ifejuna”. The Nation    

   Nigeria. Thenationonlineng.net

[80] Ibid., p. 173.

[81] Ibid., p. 174.

[82] The New York Times, November 27, 1968; It was reported that the new arms reaching Biafra from what many believe are French sources have so stiffened Biafran persistence that there is little expectation of an early Federal victory – See generally Memorandum from American Jewish Congress, op. cit., n. 26.

[83] Ibid.

[84] Achebe, op. cit., n. 48, p. 219.

[85] Memorandum from American Jewish Congress, op. cit.,n.46

[86] Jacobs, D., The Brutality of Nations, cited in Achebe, op. cit., p. 230.

[87] Memorandum from American Jewish Congress, op. cit., n.46

[88] Ibid.

[89] Schlesinger, A.M. (1983) Dynamics of World Power: A Documentary History of U.S. Foreign Policy, 1945-1973, Chelsea House, New York, p. 41.

[90] Ibid.

[91] M.R.S. means Military Reception Station – It is a military clinic facility.

[92] Personal interview of Dr. Augustine Macaulay Ayeni, in a study on the Nigerian Civil War, conducted by Network for National Tolerance and Peaceful Co-existence (NNTPC) on 4th day of March, 2013.

[93] Ibid.

[94] Ibid.

[95] Ibid.

[96] Ibid.

[97] Ibid.

[98] M.W.O. means Master Warrant Officer.

[99] Personal interview of MWO Idris Umar (Retired) by the 1st author in a recent study conducted by Network for National Tolerance and Peaceful Co-existence (NNTPC) 4th day of March, 2013.

[100] Ibid.

[101] Ibid.

[102] Personal interview of Captain Ojotu (Retired.) by the 1st author conducted for NNTPC 5th March,

     2013.

[103] Ibid.

[104] Memorandum from American Jewish Congress, op. cit., n.46

[105] Ibid.

[106] New York Times, October 23, 1968.

[107] Memorandum from American Jewish Congress, op. cit.,n.46

[108] Ibid.

[109] Appiah, K. A and Gates, H.L(2005) Africana 2nd edn., Oxford, Oxford University Press, p.453. see

     also: Nwadike, J.(2010) Soldiers Survival from the Jaws of Death, p. 57

[110] Faruk, U. (2011) The Victors and Vanquished of the Nigerian Civil War 1967-1970: Triumph of Truth

     and Valour over Greed and Ambition, Ahmadu Bello University Press, Limited, Zaria, pp. 186-187.

[111] Ibid., pp. 188-189.

[112] A report by General Adeyinka Adebayo after the war, revealed the gory details of inhuman treatment

    of captured Nigerian troops (especially Northerners) in the hand of their Igbo captors. The report

    revealed that out of the captured hundreds of Northern troops and other non-Northern soldiers, only

    THREE (3) were found alive in all the detention camps ran by Igbos. The three were (1) Commissioner of Police Mr. Joseph Adeola an indigene of the Mid West, (2) Mr. Ibekwe – also Police Commissioner an Ika Igbo also from the Mid West, and (3) Another Mid Westerner. This is contrary to what is obtained in the Federal war camps after the war, where all captured Igbo war rebels were found alive and intact – See: Faruk, Ibid., p. 99

[113] Mahoney, M.R (2003) “ The Zulu Kingdom as a Genocidal and Post – Genocidal Society 1810 to

     Present Day” Journal of Genocide Research (5)5p.263

[114] Anderson, R.J. (2005) “Redressing Colonial Genocide: The Hero’s Cause of Action against Germany,

     California Law Review, Vol. 93, p. 1158. 

[115] Bluntchli, J.C., Das Marderne Volkorrecht Der Civilisiritin Staten (1878) 299-300 cited in Anderson,

     Ibid., p. 1169.

[116] Adopted by Resolution 260(III) A of the U.N. General Assembly on 9th December, 1948, which

     became operational on 12th January, 1951.

[117] Art. 6, Rome Statute of ICC.

[118] Art. 4(2) Statute of ICTY.

[119] Art. 2(2) Statute of International Criminal Tribunal for Rwanda.

[120] Umozurike, U.O., “Human Rights and Democracy in the 21st Century – The African Challenges” in

     Ladan, M.T. (ed.) (1999) Law, Human Rights and the Administration of Justice in Nigeria (Zaria:

     A.B.U Press Limited, Zaria, p. 43. It was observed that, a state may not take part in treaty, but it may

     find that certain matters covered by the treaty are already part of customary rules of international law.

    A state that has not ratified or acceded to the Genocide Convention of 1948 will find no succor in

     committing genocide, because it is bound by the principle of the Convention which has become part of

     customary international law.

[121]  Art. II, Genocide Convention, 1948

[122]  Zwaan, infra., n. 125, para.11

[123]  Ibid., para.12

[124]  Zwaan, T. (2003) “On the Etiology and Genesis of Genocide and Mass Crimes Targeting Specific   

     Groups”, Centre for Holocaust and Genocide Studies University of Amsterdam/Roofal Netherland

     Academy of Arts and Science, Amsterdam, pp. 13-14, para. 14.

[125] Ibid., p. 14, para. 14.

[126] Ibid.

[127] Ibid.

[128] Ibid., p. 15

[129] Ibid., p. 19

[130]  Faruk, op.cit., n.110, p. 114

[131] Achebe, op.cit., n. 48, p.196

[132] Achebe, op. cit., n. 48, p. 132, Ojukwu himself confirmed this when he said: “…I appoint Colonel Banjo to lead Biafran forces west across the Niger to Lagos… See: Ojukwu, E.O. (1989) Because I am involved, Spectrum Books Limited, Ibadan, p. x.

[133] Ibid.

[134] Faruk, op.cit., n. 110, p. 186 - 187

[135] Art. II (a) – (e) Genocide Convention, see also Art. 6, Rome Statute of International Criminal Court

    (ICC), Art, 2(2) Statute of International Criminal Tribunal for Rwanda(ICTR), Art. 4(2) Statute of

     International Criminal Tribunal for Fo mer Yugoslavia

[136] Art. II, Genocide Convention (Applied)

[137] Ladan, M.T. (2008) Material and Cases in Public International Law, Ahmadu Bello University Press,

     Zaria, p. 32.

[138] For the Requirement of Statehood under International Law, see Generally: Ladan, ibid. see precisely, Art. 1, Montevideo Convention on the Rights and Duties of States

[139] Haven satisfied the basic requirement of statehood, and also fallen within the scope of protected

     persons within the contemplation of the extant law of genocide.

[140] Op.cit., n.135

[141] Art. II, para. (a) – (e).

[142] Art. 6 Rome Statute of ICC; Art. 4(2) Statute of ICTY and Art. 2(2) Statute of ICTR.

[143] Further application of Art.II. of The Genocide Convention.

[144] See Art. II, Genocide Convention. This is impari materia with the provisions of Art. 6, Rome Statute

     of International Criminal Court(ICC), Art. 4(2) Statute of the ad hoc International Criminal Tribunal

     for Former Yugoslavia and Art. 2(2) Statute of ad hoc International Criminal Tribunal for Rwanda.

[145] Alagande, A.M. (2008) “Prosecutor vs. Krstic Transversing the contours of the mens rea of genocide”, Vol. 1, No. 2, A.B.U.J.P.I.L p. 93. See also: Prosecutor vs. Akayesu (case No. ICTR – 96-4-T), Judgment of 2nd September, 1998, para. 519.

[146] The intent requirement is a special form of intent (dolus specialis). This ensues where the perpetrator  

     committed the acts listed (a) – (e) in Art. II of Genocide Convention; with the underlying desire to

     destroy in whole or in part a targeted group.

[147] Art. 30 Rome Statute of ICC.

[148] Prosecutor vs. Akayesu, op. cit., n. 145, para. 523.

[149] Ibid.

[150] Ibid.

[151] Ibid.

[152]Personal interview, conducted by 1st author for Network for National Tolerance and Peaceful Co-existence (NNTPC), op. cit.

[153] Personal interview conducted by 1st author for Network for National Tolerance and Peaceful Co-existence (NNTPC), op. cit.

[154] Personal interview, Network for National Tolerance and Peaceful Co-existence (NNTPC), op. cit.

[155] Faruk, op. cit., n. 110, pp. 188-190.

[156] Ibid.

[157] Ibid.

[158] Memorandum from American Jewish Congress, op. cit.,46

[159] Faruk, op. cit. p. v.

[160] Ibid.

 

 

African Mythology and the Violation of Life and Dignity of Albino Minorities in Nigeria

By Aloy Ojilere, LL.B (Hons.), BL, LL.M, PhD. He is an attorney, and academic in the Faculty of Law, Imo State University, Owerri, Nigeria where he teaches Human Rights, Gender Studies and Jurisprudence. His research interest is in the judicialization, globalization and constitutionalization of fundamental rights in Nigeria, India and South Africa. His recent publications include: Aloy Ojilere, & Gan Ching Chuan, (2015). Learning from the Indian Judiciary: New Directions for Securing Nigerian Women’s Right to Dignity. Asian Women, 31(1), 81-106; Aloy Ojilere & Gan C. C. (2015). Globalization and Judicialization of Socio-economic Rights in India and South Africa: Catalysts for New Directions in Nigeria. Comparative Constitutional Law & Administrative Law Quarterly (CACLQ), 2(4), 4-27, National Law University, Jodhpur, Rajasthan, India; Aloy Ojilere (2016). Obergefell v. Hodges and the Judicialization of Same-Sex Marriage in America: Legalizing the Impossible. International Journal for Intersectional Feminist Studies (IJIFS), 2(1), 33-51. Project Monma, University of Canterbury, New Zealand. The author may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.; This email address is being protected from spambots. You need JavaScript enabled to view it.. 

Abstract

The mythology, socio-cultural beliefs and superstition of some sub-Saharan African countries prejudice minorities and vulnerable persons, including albinos. In his Myths, discrimination, and the call for special rights for persons with albinism in sub-Saharan Africa, (Amnesty International editorial review on Special Programme on Africa, 2011), Thuku, Muthee emphasised the truth that “the murders, amputations and trafficking in body parts of persons with albinism in parts of East and southern Africa is an affront to the dignity and sanctity of the human body as guaranteed under international human rights law.” However, using Nigeria as focus, this article posits, that aside East and Southern Africa, and contrary to prohibitions in municipal, regional and international law, the discrimination, physical violence, psychological hurt and even murder of albinos also occur in West Africa. It shows how domestic and global interventions can be reasonably applied to remedy this menace. It specifically recommends the interplay of status-specific legislation, civic, religious and human rights education, amongst others, as necessary tools for sustainable protection of life and dignity of albinos in Nigeria and parts of West Africa.  

Introduction

East and southern Africa have rightly been cited as popular destinations for extreme forms of culture-rooted segregation and abuse of albinos and sometimes, their relatives.[1] However, albinos in West Africa also face diverse forms of abuse, human rights violations and psychological hurt imbued in African mythology.[2] Using Nigeria as a case study, this paper underlines negative African mythology-rooted attitude to albinism and albinos such as physical violence, denial of socio-political benefits, psychological hurt and in extreme cases, murder. It posits that such discrimination and abuses violate the rights to life and dignity of albinos. It finally makes suggestions for addressing these archaic anomalies, particularly in furtherance of the UN Sustainable Development Goal (SDG) No. 16, that is, the promotion of peace, justice and strong institutions through inclusiveness in society, accountability and access to justice for all.[3]

For the avoidance of doubt, this paper adopts the definition of Discrimination as:

“Any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, and which has the effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.”[4]

Albinos and Albinism

Albinos are persons with defects in human pigmentation, the commonest of which is the inherited oculocutaneous albinism (OCA).[5] These defects which occur from birth[6] usually affect their skin,[7] eyes and hair texture,[8] and sometimes necessitates blurred or impaired vision[9]  due to greater disadvantage to adverse health effects of ultraviolet radiation (UVR).[10]  Albinism has thus, been rightly defined as a condition inherited from birth as a result of the lack of melanin pigment which usually changes the colour of the skin, eyes and hair.[11]

Albinism Among Black Africans

Albinism is acclaimed to be a natural and universal human tendency[12] which cuts across world populations in varied proportions.[13] However, it is speculated, albeit unconfirmed by data, that the frequency of this condition is higher in black-skinned people than white-skinned people.[14] Some scholars also posit that African albinos, including Nigerian albinos[15] are prone to skin cancer[16] and vulnerable to a shortened life span.[17] Negative tags such as these, possibly explain why albinos are often not just considered naturally and spiritually different but also treated ‘differently’ in parts of Nigeria, West Africa and most of sub-Saharan Africa.

Nonetheless, that Africans are more prone to albinism than whites remain speculative because according to Fayoyin and Ihebuzor,[18] even outside Africa, organisations exist which are dedicated to promoting albinism awareness, appropriate care and proper medical assistance including sun protection facilities for albinos.[19]

Attitude to Albinos and Albinism in African Socio-Cultural Mythology

The African Mythology represents the African attitude to the unseen divine.[20] It reflects the people’s ancestral socio-cultural beliefs especially in relation to themselves inter se and intra their ‘unseen’ gods. This underscores widespread African belief in their ancestors as formidable spiritual forces for determining social structures.[21]

Although albinism is a condition inherited from birth as a result of the lack of melanin pigment which usually changes the colour of the skin, eyes and hair, in the mythology of most African communities,[22] it is usually greeted with resentment, stigma and prejudice[23] which sometimes extend to the parents of the albinos. [24]

African mythology considered albinos as being naturally and spiritually ‘different’ from the rest of humankind. They are usually perceived in diverse terms, most of which are derogatory, demeaning and negative. While some consider albinism as a divine “curse”, others view albinos as unique and extraordinary spirit-beings or divine spirits who possess special healing powers.[25]

For instance, in a survey on the cause of albinism carried out in Zimbabwe, using 138 school children with albinism (averagely aged 14.4 years old) as respondents,[26] found that 70 (50.7%) of them had no knowledge of why they lacked skin coloration and were different from their classmates. 15 (10.9%) said it was due to biological factors, 19 (13.8%) believed it was an act of God, while 13 (9.4%) stated other incorrect causes, such as punishment for a family member mocking an albino, witchery, and “top layer of skin missing”.[27] Other misconceptions regarding the cause of albinism include the belief that the devil replaced the African child with an albino or that the mother was impregnated by a white man.[28] Other scholars also found that even educated albino women never get employed for jobs in Zimbabwe for fear that albinism is contagious and “employers always said, more or less, during the interview that an albino secretary would hurt the company’s reputation.”[29]

In countries like Tanzania, Burundi, Kenya and South Africa, albinos are usually kidnapped and even killed for ritual purposes.[30] In the Great Lakes district of East Africa particularly, persistent violence against albinos, though common but under-reported,[31] is often induced by strong negative superstition linked to witchcraft.[32] Thus, body parts and vital organs of albinos are sometimes harvested and used for preparing special spiritual charms[33] and magic medicines.[34] Some African cultures even deride persons with albinism as having their own pungent unique “smell” which is so offensive that if one sits next to an albino, one will “smell so bad that others will vomit”.[35] In some isolated cases, however, people with albinism have received social support from dedicated NGOs.[36] Nonetheless, the intrusions practiced on albinos as culturally designated objects have not diminished.[37]

An advocacy report Through Albino Eyes published by the International Federation of Red Cross/Red Crescent in Tanzania provided a qualitative perspective on the plight of albinos in East Africa.[38] It stated that at least 10,000 albinos were unable to study, trade or cultivate their land for fear of hunters hired by big money traders and witch doctors to harvest albino body parts for witchcraft.[39] The contention is therefore true that “the murders, amputations and trafficking in body parts of persons with albinism in parts of East and southern Africa is an affront to the dignity and sanctity of the human body as guaranteed under international human rights law.”[40]

In parts of West Africa, including Nigeria, albinos also suffer varying forms (albeit in less degrees of violence) of discrimination and violation of rights. For instance, in the mythology of the Yoruba tribe of South West Nigeria, albinos are described by the derogatory terminology of Afin or eni-orisa, that is, “one who belongs to the deity.”[41] In certain cases, they are denied and deprived of essential amenities such as education, employment and other basic life provisions which are instead reserved exclusively for the free born.[42] A study of l000 African albinos in Nigeria showed that negative societal attitude due to insufficient understanding forced albinos to undertake menial outdoor work.[43]

Ancient mythology of the Ibos of South East Nigeria before the coming of Christian missionaries and the introduction of Christianity, also considered albinism, like the birth of twins, as sacrilegious and abominable.[44] In those early times albinos were killed at birth and twins were abandoned in the forest to die.[45] Their mothers were sometimes sacrificed to the ‘gods’ as communal apology and for cleansing the land of the abomination[46] because Africans at that time saw no reason why African parents endowed with natural black skin could give birth to a “yellow” or “white” child, or how a pregnancy to produce more than one child.

However, with the theological encounter of Christianity with ancient mythology of the Ibos of South East Nigeria, the birth of twins became accepted as a glorious blessing from Almighty God. Albinos too were no longer considered or treated ‘differently’ with regards to interpersonal relationships, allocation or enjoyment of social, cultural and religious privileges and amenities as well as political rights to dignity and life.[47] The worst treatment albinos receive today among the Ibos of South Eastern Nigeria, is being called ‘unfortunate Europeans’ especially by their peers in school, because of their perceived “excess” fair complexions and in some cases, blurred vision due to extreme sensitivity to sunlight,[48] just the same way the Hausas of Northern Nigeria call them Bature Ntuda, meaning “fake white man”.[49] 

Thus far, it is certain that the stigma and atrocities affecting the albino population in sub-Saharan Africa may rather be attributed to ignorance and lack of familiarity and sufficient education about albinism.[50] 

Violation of Life and Dignity of Albinos in Nigeria and Parts of West Africa

The stigmatization, racial discrimination, dehumanization and general affront to life and dignity of albinos which is rooted in African cultural mythology and prevalent in East Africa,[51] and Southern Africa  also occur in Nigeria[52] as well as parts of West Africa[53] including, Burkina Faso, Guinea,[54] Sierra Leone,  Ghana[55] and Ivory Coast,[56] albeit in diverse proportions.

In Nigeria, the most common cases of stigmatization, violence and psychological hurt against albinos occur among the Yoruba of South West Nigeria where local mythology promote the belief that albinos belong to deities and may equally be used for rituals.[57] Among the Ibos of South East Nigeria, the stigmatization of albinos is not popular except that in some social settings, albinos are scornfully called “unfortunate Europeans” or “fake white men”.[58] Malians similarly describe persons with albinism by the term gomblé or gombolé, which literally means “red monkey”.[59]

Interestingly, in Southern Africa, referring to a person by the term 'albino' is not considered derogatory, but in the West, the term 'person with albinism' is preferred to the term 'albino'.[60] This is because ‘albino’ puts the condition before the person while 'person with albinism' puts the person before the condition.[61]

In some cases, unfortunately, the segregation of albino children prevents them from attending school in parts of Africa.[62] For instance, at the first International Albinism Awareness Day held in Accra, by The Ghana Association of Persons with Albinism (GAPA) in June 2015, some of the placards raised by members read: 'Persons with albinism are human beings'; 'Send children with albinism to school'; 'Say no to societal prejudice’; and 'Albinism is not a curse'.[63]

Suffice to say that in West, East and southern Africa, albinos suffer varying degrees of humiliation and abuse which constitute gross violation to their rights to life and dignity. These violations include, but not limited to stigmatisation,[64] discrimination,[65] isolation, psychological harm,[66]  physical abuse and broad violation of human rights.[67] In some extreme cases, albino children are killed at birth or abandoned to die.[68]

It is however, noteworthy that unlike in East and southern Africa, the kidnapping and killing of albinos for organ harvest or rituals are not prevalent, but rather an emerging form of organised crime of human trafficking in Nigeria[69] and possibly, other parts of West Africa.

Albino Rights in International Human Rights Law

There is no international instrument for the specific protection of the right to life, dignity or non-discrimination of albinos. This is the bane of albino protection in international human rights law. However, contemporary international human rights law seeks to promote, respect, protect and guarantee the rights to life and dignity of all persons and minorities, obviously including albinos.[70] These protections fall within the contemplation of Goal No.16 of the UN Sustainable Development Goals (SDGs), that is, peace, justice and strong institutions which seek to “promote peaceful and inclusive societies for sustainable development” and provide access to justice for all and and build effective, accountable and inclusive institutions at all levels.[71] And as rightly posited, social justice is the core development goal of sustainable development.[72]

Some of the human rights instruments which enshrine the equality, respect and protection of the rights of all persons and minorities but without specific mention of albinos include the Universal Declaration on Human Rights 1948, the Convention on the Rights of the Child 1989, International Convention on the Elimination of all Forms of Racial Discrimination, [73] the Africa Charter on Human and Peoples’ Rights 1986,[74] the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992,[75] the International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966.

Part of the Preamble to the International Convention on the Elimination of all Forms of Racial Discrimination succinctly captures the unacceptability of racial discrimination (invariably including discrimination against persons with albinism) within the comity of nations thus:

“Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,

Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,

Convinced that the existence of racial barriers is repugnant to the ideals of any human society,

Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,

Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination.”[76]

Chapter 1, Article 1.3 of the UN Charter express the purposes and principles of the United Nations to include the quest “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”[77]

More specifically, its Article 1.2 provides that one of the purposes and principles of the United Nations is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.[78]

Articles 2.1 of the International Covenant on Civil and Political Rights (ICCPR) provides inter alia,  for equal protection of the law "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."[79] Its Article 26 equally “prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[80]  In its Preamble, the said ICCPR also recognizes the inherent dignity, equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace worldwide and that “these rights derive from the inherent dignity of the human person.”[81]

Albinos are also covered by the various protection provided under the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Preamble to the said ICESCR recognise, among others, that cultural and socio- economic rights are inseparable from the “inherent dignity of the human person” and that the enjoyment of the right and freedom against fear and want is only be achievable if conditions exists for enjoying of economic, socio-cultural, political and civil rights.”[82]

Under the Universal Declaration of Human Rights (UDHR), especially Articles 1 and 5 thereof, “all human beings are born free and equal in dignity and rights’ and ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[83]

Unfortunately, albino abuse and discrimination continue to strive irrespective of the blanket provisions and status-neutral language of these international instruments. It is thus, worthwhile that albinos, alongside other minorities, vulnerable, abused or segregated races,[84] ought to be considered as a “race” deserving of status-specific legislative protection within the contemplation of international human rights law.

Albino Rights in Nigerian Domestic Law

No domestic legislation or other international legal instrument applicable in Nigeria offer specific protection of the rights and dignity of albinos or persons with albinism. However, every form of abuse and discrimination against albinos, particularly stigmatisation, the killing, maiming and trafficking in body parts of persons with albinism is an affront to human sanctity and dignity guaranteed in general domestic and international human rights law.[85]

For instance, section 33 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees the right to life and accordingly “no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”[86]

Its section 34 (1) (a) guarantees the right and respect for the dignity of person, and that prohibits the infliction of torture or inhuman or degrading treatment on any person.[87]

In its section 41 (1) the said constitution guarantees the right of every citizen of Nigeria to move freely within Nigeria and to reside in any of its part according to his pleasing.[88]

The inviolability of human beings and the guarantee of life and dignity of all persons (which obviously include albinos) are also secured by Article 4 of the African Charter on Human and Peoples’ Rights, 1986,[89] thus: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.” [90]

Its Article 2 is directly imperative to the protection of albinos against non-discrimination. The said Article 2 states thus:

“Every individual shall be entitled to the enjoyment of the right and freedom recognized and guaranteed in the present charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national or social origin, fortune, birth or other status.”[91]

By Section 42 (1) (a) of the 1999 Nigerian Constitution, 

“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 or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject.”[92]

This paper argues that the tripartite nature of the Nigerian legal system whereby civil law, customary law and religious law apply simultaneously qualify customary law (which is often considered as the basis of socio-cultural mythology) as part of “any law in force” within the contemplation of section 42(1) (a) above. Consequently, albinos should be treated as a ‘community’ and protected hereunder. Unfortunately, this fact makes it quite difficult to harmonise or eliminate most discriminatory socio-cultural mythologies and religious practices which violate the rights to life and dignity of albinos and vulnerable groups.

Furthermore, section 42 (2) of the 1999 Nigerian Constitution (as amended) prohibits every deprivation or disability on any citizen of Nigeria “merely by reason of the circumstances of his birth.”[93] And without doubt, albinism has been medically and scientifically shown to be a natural circumstance of birth which cuts across race, creed or religion.[94] Persons with albinism are also deemed protected hereunder, albeit, not specifically mentioned.

It is therefore unlawful in the Nigerian jurisprudence to deny albinos the enjoyment of education and other social benefits, or to kidnap them, kill them or harvest their body parts for rituals, magical powers or any purpose whatsoever. It is equally unlawful to discriminate against them or intimidate them into living in fear or prevent them from residing freely in any part of Nigeria.

Consequently, every act or omission, albeit rooted in African socio-cultural or religious mythology which inflict or promote injury, hate, indignity, intimidation, discrimination or death against albinos and persons with albinism in Nigeria amount to are condemnable and actionable constitutional breaches.

Recommendations for Sustainable Protection of Albinos in Nigeria

The quest for sustainable guarantee of life and dignity of albinos and persons living with albinism in Nigeria and other parts of West Africa require the dynamic interplay of religious, political, socio-cultural and legal stakeholders, as well as media (including social media), NGOs, civil society and grassroots advocacy/activism, to say the least. 

Although no relevant fundamental rights provision of the 1999 Nigerian Constitution or any other subsisting legislation, or any regional or international instrument applicable in Nigeria, make any specific mention of albinos with regards to none discrimination or protection of life and dignity, no reasonable argument can be offered to suggest that albinos are or may be excluded from enjoying the rights and protections guaranteed thereunder. This paper, however, suggests that the relevant fundamental rights provisions in the Nigerian Constitution and other relevant legislation on equality, life, dignity and non-discrimination applicable in the country be amended so that albinos are specifically mentioned, for according to Olagunju, albinos have a right to life and should be treated equally like non-pigmented persons everywhere.[95]

Such amendment will substantially resolve the existing constitutional lacuna in Nigeria which also exists in Tanzania where, in spite of protections listed in Articles 12-16 of the Bill of Rights in the 1977 Constitution of Tanzania, “little has been done to make sure that such provisions protect the rights of Albino people in Tanzania.” [96] 

The amendment will also bring albino issues, specifically, to the fore of domestic and international discuss, just as in the case of the child-specific 1989 UN Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child which eventually led to the enactment of the Child Rights Act, 2003 in Nigeria. [97]

In the same way, agitations for special and particular human rights protection for women led to the introduction of some women-specific international instruments in spite of existing gender-neutral human rights instruments.[98] Some of the most popular women-specific international instruments include the Beijing Declaration and Platform for Action, 1995,[99]  the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),[100] the UN Vienna Declaration and programme of Action, 1993,[101] African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003[102] and especially the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo Protocol).[103]

This paper therefore recommends that the following status-specific legal instruments be introduced to facilitate sustainable protection of life and dignity of albinos: UN Convention on the Elimination of All Forms of Discrimination Against Persons With Albinism (CEDAPWA), UN Convention on the Rights of Albinos (CRA), African Charter on Human and Peoples’ Rights on the Rights of Albinos in Africa, as well as Albino Rights Act in Nigeria. Similar suggestions made by feminists and women rights advocates culminated in the enactment of a number of gender-specific domestic legislation and international instruments which form part of Nigeria’s current human rights jurisprudence.[104]

This paper further suggests that the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992 be amended by protocol to specifically include albinos as a racial/ethnic minority within the contemplation of the Declaration.[105] However, prior to the implementation of the above suggested recommendation for status-specific international instruments for the protection of albinos, the Nigerian government and courts should exert the political will and judicial activism for applying the already existing status-neutral international human rights instruments towards the protection of albinos. Such activism must overlook the dualist approach to treaty enforcement whereby international law is considered a separate form of law which is inferior to municipal law, and must first be domesticated into a local legislation in accordance with Section 12 of the 1999 Nigerian Constitution before they become applicable and compelling in the Nigerian courts.[106]

Relevant Governments should also take bold procedural and legal steps to address this problem by decisively investigating, arresting and prosecuting all perpetrators and/or collaborators of such attacks, no matter how highly placed, through the judicial process. Such initiative has been put in place in Malawi. [107]

Additionally, courts and judicial tribunals in Nigeria and elsewhere in West Africa should also give courageous and generous interpretation of constitutional or legislative provisions where discrimination, kidnap, killing or other violation of dignity or life of persons with albinism is in issue, irrespective of any possible argument or constitutional lacuna to the contrary.

It may also be worthwhile for Nigerian governments to set up robust constitutional mechanisms for supervising and coordinating the implementation of relevant legislation for human rights protection, even though in Tanzania where such agency exists, albino abuse remain popular due to laxity and corruption of such government institutions.[108]

Core religious, community and traditional rulers who are the major custodians of the conscience, morals, traditions and native customs of the people should participate in awareness campaigns for the social acceptance and tolerance of albinos in their various communities. This will necessitate proper understanding of albinism, right false myths and orientation surrounding albinism, socio-cultural inclusion of persons with albinism, as well as the steady elimination of violence and discriminations against albinos, especially on the basis of African mythology and superstition.

The effectiveness of this drive will, however, involve the proactive participation of other stakeholders such as governments, media (including social media), civil society organisations, school teachers and pupils, NGOs, lawyers, trade unions, prominent activists, medical practitioners, the police, the courts, town unions, traditional healers, local magicians, farmers and hunters. Above all, government must ensure that in the present circumstance, pending implementation of these suggested recommendations, albino abusers, especially the kidnappers, hunters and their sponsors are swiftly prosecuted to the full extent of justice.

Without such broad interplay of stakeholder commitments, it will be difficult to create positive attitudinal change of realistic non-discrimination and guarantee of rights to life and dignity of albinos and persons living with albinism in Nigeria and other parts of West Africa. As Olowu rightly posited, the struggle for human rights will be won or lost at the national level.[109] Therefore, protecting the rights and dignity of minorities and disabled persons, particularly albinos, is a desperate challenge for sub-Saharan African countries where neglect and failure to prioritize disability rights is common, albeit, the adoption of the African Women’s Protocol in 2003 was a progressive step with respect to women’s rights.[110]   The African human rights system was also derided as the least developed within the comity of regional systems,[111] albeit this allegation has been challenged,[112] and rightly said to be capable of denying Africa’s other contribution to the growth of international human rights law.[113]

Imperatively too, since the violation of albino rights is known to be prominent among developing African countries, the international diplomatic community, especially the developed western nations, may as well tackle this menace by the threat or actual imposition of economic and other sanctions on such erring countries. This method will be impactful because most sub-Saharan African countries are developing nations who conventionally look up to the developed western world as well as international donor organisations for social, financial, military, infrastructural and other strategic developmental support.

Conclusion

Albinism is a natural circumstance of birth which often causes skin and hair discoloration, UVR sensitivity and sometimes vision impairment.[114] The mythology of most sub-Saharan African countries including Nigeria and parts of West Africa, view albinos with superstition and suspicion which necessitates discrimination and violation of rights to life and dignity of these albinos (and even their parents), contrary to applicable domestic and international human rights law.[115] This underscores the scholarly conclusion that the murder and mutilation of people with albinism in Africa is an unprecedented crisis of human rights which impairs the welfare of the albino population across all areas of life.[116]

The discrimination and violation of albino rights to life and dignity based on socio-cultural mythology have, however, been seen to be more severe in East and southern Africa than in West Africa.[117] In any case, they also contradict the core essence of the UN Sustainable Development Goal (SDG) No. 16, that is, peace, justice, equality and inclusiveness.[118]

The quest for addressing this discrimination and violation require social re-orientation and enlightenment on albinism, enactment of status-specific local legislation and international instruments, as well as judicial activism, coupled with active interplay of core stakeholders within government, civil society, and the immediate communities where these violative myths are respected and practiced.

Footnotes

[1] Aquaron, R., Djatou, M., & Kamdem, L. (2009). Sociocultural aspects of albinism in Sub-Saharan Africa: Mutilations and ritual murders committed in east Africa (Burundi and Tanzania). Medecine tropicale: revue du Corps de sante colonial, 69(5), 449-453; Thuku, M. (2011). Myths, discrimination, and the call for special rights for persons with albinism in sub-Saharan Africa. Amnesty International editorial review on Special Programme on Africa https://albinismawareness.or.tz/wp-content/uploads/2017/04/Calls-for-special-Right-to-People-with-Albinism-Report.pdf (31/8/2017).

[2] Cruz-Inigo, A. E., Ladizinski, B., & Sethi, A. (2011). Albinism in Africa: stigma, slaughter and awareness campaigns. Dermatologic clinics, 29(1), 79-87.

[3] Peace, Justice and strong institutions: United Nations Sustainable Development Goals (17 Goals to Transform Our World). http://www.un.org/sustainabledevelopment/peace-justice/(17/2/2018).

[4] See Unite For Reproductive Rights “ICCPR General Comment No. 18: Non-discrimination”, which recognizes and provides more guidance on the interpretation of discrimination in Article 26 of the International Covenant on Civil and Political Rights, 1966. https://uniteforreprorights.org/resources/iccpr-general-comment-no-18-non-discrimination/(17/2/2018). See also Weiwei, L. (2004). Equality and Non-Discrimination Under International Human Rights Law. Norwegian Centre for Human Rights, Research Notes, 3.

[5] King, R. A., Creel, D., Arvenka, J., Okoro, A. N., & Witkop, C. J. (1980). Albinism in Nigeria with delineation of new recessive oculocutaneous type. Clinical genetics, 17(4), 259-270.

[6] Okulicz, J., Shah, R., Schwartz, R., & Janniger, C. (2003). Oculocutaneous albinism. Journal of the European Academy of Dermatology and Venereology, 17(3), 251-256.

[7] Kiprono, S. K., Chaula, B. M., & Beltraminelli, H. (2014). Histological review of skin cancers in African Albinos: a 10-year retrospective review. BMC cancer, 14(1), 157.

[8] Kinnear, P., Jay, B., & Witkop, C. (1985). Albinism. Survey of ophthalmology, 30(2), 75-101; Witkop, C. J. (1989). Albinism. Clinics in dermatology, 7(2), 80-91; Jablonski, N. G., & Chaplin, G. (2014). The evolution of skin pigmentation and hair texture in people of African ancestry. Dermatologic clinics, 32(2), 113-121.

[9] Creel, D., O'Donnell, F. E., & Witkop, C. J. (1978). Visual system anomalies in human ocular albinos. Science, 201(4359), 931-933.

[10] Wright, C. Y., Norval, M., & Hertle, R. W. (2015). Oculocutaneous Albinism in Sub‐Saharan Africa: adverse sun‐associated health effects and photoprotection. Photochemistry and photobiology, 91(1), 27-32.

[11] Murray, B. H. (2015). Albinism in Africa: A Medical and Social Emergency. International Health, 7, 223-225; Benyah, F. (2017). Equally able, differently looking: discrimination and physical violence against persons with albinism in Ghana. Journal for the Study of Religion, 30(1), 161-188.

[12] George, A. (1988). Skin Diseases in Tropical Africa. International journal of dermatology, 27(3), 187-189.

[13] Healey, N., McLoone, E., Saunders, K. J., Jackson, A. J., & McClelland, J. F. (2014). Are worldwide albinism prevalence figures an accurate reflection? An incidental finding from a Northern Ireland study. British Journal of Ophthalmology, 98(7), 990-990.

[14] Barnicot, N. (1953). Albinism in South-Western Nigeria. Annals of Human Genetics, 18(1), 38-73.

[15] Okoro, A. (1975). Albinism in Nigeria:a clinical and social study. British Journal of Dermatology, 92(5), 485-492.

[16] Kiprono, S. K., Chaula, B. M., & Beltraminelli, H. (2014). Histological review of skin cancers in African Albinos: a 10-year retrospective review. BMC cancer, 14(1), 157.

[17] King, R. A., Creel, D., Arvenka, J., Okoro, A. N., & Witkop, C. J. (1980). Albinism in Nigeria with delineation of new recessive oculocutaneous type. Clinical genetics, 17(4), 259-270.

[18] Fayoyin, A., & Ihebuzor, N. (2014). Advocacy for Minorities in Africa: Issues and lessons in Advancing the Rights of Albinos in Tanzania and Osus in Nigeria. Asia Pacific Journal of Research Vol: I Issue XVII.

[19] Some of such organisations include: BaiChina (Kids from China with Albinism): http://groups.yahoo.com/group/baichina/; Albinism Fellowship United Kingdom: http://www.albinism.org.uk/; Albinism Fellowship of Australia: http://www.albinismaustralia.org/; Albinism Trust New Zealand: http://www.albinism.org.nz/home.html; Chicago Connection for Minorities with Albinism (CCM): http://groups.yahoo.com/group/HOAH_CCMA/; Norwegian Association for Albinism (NFFA): http://www.albinisme.no/;  The Hermansky-Pudlak Syndrome (HPS) Network: http://www.hpsnetwork.org/ (23/11/2017).

[20] Jemiriye, T. F. (2014). African Concept of god. Perspectives in Religious Studies: Volume I, 1, 57; Sanusi, B. O. (2013). Faith, Religion and Communication: The Communication Pattern in Traditional African Religion. International Journal of Innovative Research and Development, 2(11).

[21] Uchendu, V. C. (1976). Ancestorcide! Are African Ancestors Dead? Ancestors, 283.

[22] Murray, B. H. (2015). Albinism in Africa: A Medical and Social Emergency. International Health, 7, 223-225; Benyah, F. (2017). Equally able, differently looking: discrimination and physical violence against persons with albinism in Ghana. Journal for the Study of Religion, 30(1), 161-188.

[23] Ikuomola, A. D. (2015). Socio-Cultural Conception of Albinism and Sexuality Challenges among Persons with Albinism (PWA) in South-West, Nigeria. AFRREV IJAH: An International Journal of Arts and Humanities, 4(2), 189-208; Cruz-Inigo, A. E., Ladizinski, B., & Sethi, A. (2011). Albinism in Africa: stigma, slaughter and awareness campaigns. Dermatologic clinics, 29(1), 79-87; Braathen, S. H., & Ingstad, B. (2006). Albinism in Malawi: knowledge and beliefs from an African setting. Disability & Society, 21(6), 599-611; Baker, C., Lund, P., Nyathi, R., & Taylor, J. (2010). The myths surrounding people with albinism in South Africa and Zimbabwe. Journal of African Cultural Studies, 22(2), 169-181.

[24] Aquaron, R., Djatou, M., & Kamdem, L. (2009). Sociocultural aspects of albinism in Sub-Saharan Africa: Mutilations and ritual murders committed in east Africa (Burundi and Tanzania). Medecine tropicale: revue du Corps de sante colonial, 69(5), 449-453.

[25] Kittles, R. (1995). Nature, origin, and variation of human pigmentation. Journal of Black Studies, 26(1), 36-61.

[26] Lund, P. M. (2001). Health and Education of Children with Albinism in Zimbabwe Health Education Research.(16), 1-7.

[27] Lund, P. M. (2001). Health and Education of Children with Albinism in Zimbabwe, ibid.

[28] Simona, B. E. (2004). Albinos in Black Africa. International journal of dermatology (43), 618–621.

[29] Kuster, R. (2000). White Skin, Black Souls. New African, 382, 40-41; Cruz-Inigo, A. E., Ladizinski, B., & Sethi, A. (2011). Albinism in Africa: stigma, slaughter and awareness campaigns. Dermatologic clinics, 29(1), 79-87.

[30] Aquaron, R., Djatou, M., & Kamdem, L. (2009). Sociocultural aspects of albinism in Sub-Saharan Africa: Mutilations and ritual murders committed in east Africa (Burundi and Tanzania). Medecine tropicale: revue du Corps de sante colonial, 69(5), 449-453; Ikuomola, A. D. (2015). Socio-Cultural Conception of Albinism and Sexuality Challenges among Persons with Albinism (PWA) in South-West, Nigeria. AFRREV IJAH: An International Journal of Arts and Humanities, 4(2), 189-208.

[31] Burke, J. (2013). Media framing of violence against Tanzanians with albinism in the Great Lakes region: A matter of culture, crime, poverty and human rights. Australasian Review of African Studies, The, 34(2), 57.

[32] Oakford, S. (2014). Fuelled by superstition, people are violently attacking lbinos in Tanzania. Vice News, 27.

[33] Bryceson, D. F., Jønsson, J. B., & Sherrington, R. (2010). Miners' magic: artisanal mining, the albino fetish and murder in Tanzania. The Journal of Modern African Studies, 48(3), 353-382.

[34] Tanner, R. (2010). Ideology and the killing of albinos in Tanzania: A study in cultural relativities. Anthropologist, 12(4), 229-236.

[35] Ntinda, R. N. (2010). Customary practices and children with albinism in Namibia: A constitutional challenge? : http://www.kas.de/upload/auslandshomepages/namibia/Children_Rights/Children_n.pdf (31/8/2017).

[36] Hong, E. S., Zeeb, H., & Repacholi, M. H. (2006). Albinism in Africa as a public health issue. BMC Public Health, 6(1), 212.

[37] Carnegie, C. V. (1996). The dundus and the nation. Cultural Anthropology, 11(4), 470-509.

[38] Cross, R. (2009). "Through Albino Eyes: the plight of albino people in Africa’s Great Lakes Region and a Red Cross response." Geneva: International Federation of Red Cross and Red Crescent Societies; Cruz-Inigo, A. E., Ladizinski, B., & Sethi, A. (2011). Albinism in Africa: stigma, slaughter and awareness campaigns. Dermatologic clinics, 29(1), 79-87.

[39] Fayoyin, A., & Ihebuzor, N. (2014). Advocacy for Minorities in Africa: Issues and lessons in Advancing the Rights of Albinos in Tanzania and Osus in Nigeria. Asia Pacific Journal of Research Vol: I Issue XVII.

[40] Thuku, M. (2011). Myths, discrimination, and the call for special rights for persons with albinism in sub-Saharan Africa. Amnesty International editorial review on Special Programme on Africa https://albinismawareness.or.tz/wp-content/uploads/2017/04/Calls-for-special-Right-to-People-with-Albinism-Report.pdf (31/8/2017).

[41] Olagunju, O. S. (2012). Towards a Biblical Response to Myth and Discrimination against the Human Right of Albinos in Yorubaland. Journal of Studies in Social Sciences, 1(1), 46-58.

[42] Olagunju, O. S. (2012). Towards a Biblical Response to Myth and Discrimination against the Human Right of Albinos in Yorubaland. Journal of Studies in Social Sciences, 1(1), 46-58.

[43] Okulicz, J., Shah, R., Schwartz, R., & Janniger, C. (2003). Oculocutaneous albinism. Journal of the European Academy of Dermatology and Venereology, 17(3), 251-256.

[44] Bastian, M. L. (2001). "The demon superstition": Abominable twins and mission culture in Onitsha history. Ethnology, 13-27.

[45] Jell-Bahlsen, S. (2014). The dialectics of Igbo and Christian Religion in contemporary Nigeria. Interface between Igbo theology and christianity, 51-65.

[46] Nwankwo, E. A., & Agboeze, M. U. (2016). Safety Issues at Selected Shrines/Sacred Groves in Eastern Nigeria. International Journal of Asia Social Science, 6(1), 80-92.

[47] Ibenwa, C. N. (2014). Influences of Christian Religion on African Traditional Religion and Value System. world, 4(9).

[48] Fitzpatrick, T. B., Pathak, M. A., Magnus, I. A., & Curwen, W. L. (1963). Abnormal reactions of man to light. Annual review of medicine, 14(1), 195-214.

[49] Olagunju, O. S. (2012). Towards a Biblical Response to Myth and Discrimination against the Human Right of Albinos in Yorubaland. Journal of Studies in Social Sciences, 1(1).

[50] Cruz-Inigo, A. E., Ladizinski, B., & Sethi, A. (2011). Albinism in Africa: stigma, slaughter and awareness campaigns. Dermatologic clinics, 29(1), 79-87.

[51] Aquaron, R., Djatou, M., & Kamdem, L. (2009). Sociocultural aspects of albinism in Sub-Saharan Africa: Mutilations and ritual murders committed in east Africa (Burundi and Tanzania). Medecine tropicale: revue du Corps de sante colonial, 69(5), 449-453; Ikuomola, A. D. (2015). Socio-Cultural Conception of Albinism and Sexuality Challenges among Persons with Albinism (PWA) in South-West, Nigeria. AFRREV IJAH: An International Journal of Arts and Humanities, 4(2), 189-208.

[52] King, R. A., Creel, D., Arvenka, J., Okoro, A. N., & Witkop, C. J. (1980). Albinism in Nigeria with delineation of new recessive oculocutaneous type. Clinical genetics, 17(4), 259-270; Cruz-Inigo, A. E., Ladizinski, B., & Sethi, A. (2011). Albinism in Africa: stigma, slaughter and awareness campaigns. Dermatologic clinics, 29(1), 79-87.

[53] Stevens, G., Ramsay, M., & Jenkins, T. (1997). Oculocutaneous albinism (OCA2) in sub-Saharan Africa: distribution of the common 2.7-kb P gene deletion mutation. Human genetics, 99(4), 523-527.

[54] Bertolotti, A., Lasseaux, E., Plaisant, C., Trimouille, A., Morice‐Picard, F., Rooryck, C., . . . Arveiler, B. (2016). Identification of a homozygous mutation of SLC24A5 (OCA6) in two patients with oculocutaneous albinism from French Guiana. Pigment cell & melanoma research, 29(1), 104-106.

[55] Wiafe-akenten, B. C. (2016). Disharmony in diversity: Traditional beliefs, attitudes and stigmatization of persons living with albinism in Ghana. International Journal of Psychology, 51, 438.

[56] Yoboue, P., Sangare, A., Kaloga, M., Kouadio, A., & Djedje, M. (2005). Epidemiologic and etiologic features of pigmentation disorders observed during consultation at the Dermatology Center of Abidjan, Ivory Coast. International journal of dermatology, 44(s1), 33-34.

[57] Oyewole, S. (2016). Kidnapping for Rituals: Article of Faith and Insecurity in Nigeria. Journal of Pan African Studies, 9(9), 35-53.

[58] Olagunju, O. S. (2012). Towards a Biblical Response to Myth and Discrimination against the Human Right of Albinos in Yorubaland. Journal of Studies in Social Sciences, 1(1).

[59] Imperato, G. H. and P. J. Imperato (2006). "Beliefs and practices concerning twins, hermaphrodites, and albinos among the Bamana and Maninka of Mali." Journal of community health 31(3): 198-224.

[60] Baker, C., Lund, P., Nyathi, R., & Taylor, J. (2010). The myths surrounding people with albinism in South Africa and Zimbabwe. Journal of African Cultural Studies, 22(2), 169-181.

[61] Ibid.

[62] Baker, C. (2008). Writing over the illness: the symbolic representation of albinism. Social studies of health, illness and disease: perspectives from the social sciences, eds. PL Twohig and V. Kalitzkus, 115-128.

[63] Benyah, F. (2017). Equally able, differently looking: discrimination and physical violence against persons with albinism in Ghana. Journal for the Study of Religion, 30(1), 161-188.

[64] Salewi, D. H. (2011). The killing of persons with albinism in Tanzania: A social-legal inquiry. (LLM (Human Rights and Democratisation in Africa) ), University of Pretoria, Centre For Human Rights, University of Pretoria.  

[65] Kromberg, J., & Jenkins, T. (1997). Cultural influences on the perception of genetic disorders in the black population of Southern Africa Culture, kinship and genes (pp. 147-157): Springer.

[66] Ezeilo, B. N. (1989). Psychological aspects of albinism: an exploratory study with Nigerian (Igbo) albino subjects. Social Science & Medicine, 29(9), 1129-1131.

[67] Wiete, W. (2012). Life of albinos in East Africa threatened: A most bizarre and dramatic consequence of having a skin colour disease. https://scholar.google.com/scholar?cluster=5259819394749941146&hl=en&as_sdt=2005&sciodt=0,5 (12/11/2017); Ikuomola, A. D. (2015). ‘We thought we will be safe here’: Narratives of Tanzanian Albinos in Kenya and South-Africa. African Research Review, 9(4), 37-54; Ikuomola, A. D. (2015). Socio-Cultural Conception of Albinism and Sexuality Challenges among Persons with Albinism (PWA) in South-West, Nigeria. AFRREV IJAH: An International Journal of Arts and Humanities, 4(2), 189-208.

[68] Baker, C., Lund, P., Nyathi, R., & Taylor, J. (2010). The myths surrounding people with albinism in South Africa and Zimbabwe. Journal of African Cultural Studies, 22(2), 169-181.

[69] Rahman, M. A. (2011). Human trafficking in the era of globalization: The case of trafficking in the global market economy. Transcience Journal, 2(1), 54-71.

[70] Kane, I. (2008). Protecting the rights of minorities in Africa: A guide for human rights activists and civil society organizations: Minority Rights Group International.

[71] Goal 16 of the UN Sustainable Development Goals (SDGs). https://unstats.un.org/sdgs/report/2016/goal-16/ (17/2/2018).

[72] Langhelle, O. (2000). "Sustainable development and social justice: expanding the Rawlsian framework of global justice." Environmental Values 9(3): 295-323.

[73] Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965. Entry into force 4 January 1969, in accordance with Article 19. UN Office of the High Commissioner for Human Rights: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx (accessed 21/11/2017).

[74] Article 18(3) of the African charter recognizes and enjoins State Parties to “ensure the elimination of every discrimination against women and also ensure the protection of women and the child as stipulated in international declarations and conventions.”

[75] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and. Linguistic Minorities. Adopted by General Assembly resolution 47/135 of 18 December 1992. www.ohchr.org/Documents/Publications/GuideMinoritiesDeclarationen.pdf (19/2/2018).

[76] The International Convention on the Elimination of All Forms of Racial Discrimination was Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965. It came
into force 4 January 1969, in accordance with Article 19. Article 1 of the Convention defines the term "racial discrimination" to mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. www.supremecourt.ge/files/upload-file/pdf/act6.pdf (18/2/2018).

[77] The Charter of the United Nations was signed on 26 June 1945, in San Francisco, at the conclusion of the United Nations Conference on International Organization, and came into force on 24 October 1945. www.un.org/en/charter-united-nations/ ; http://www.un.org/en/sections/un-charter/un-charter-full-text/ (19/2/2018).

[78] Ibid.

[79] The International Covenant on Civil and Political Rights was adopted by the General Assembly of the United Nations on 19 December 1966. Its Optional Protocol was Adopted by the General Assembly of the United Nations on 19 December 1966 https://treaties.un.org/doc/publication/unts/.../volume-999-i-14668-english.pdf (18/2/2018).

[80] Ibid.

[81] Ibid.

[82] The International Covenant on Economic, Social and Cultural Rights was adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 and it entered into force on 3 January 1976, in accordance with article 27.www.who.int/hhr/Economic_social_cultural.pdf (18/2/2018).

[83] The United Nations Universal Declaration of Human Rights (UDHR), 1948 is a milestone document in the history of human rights as it sets out, for the first time, a global template for universal protection of fundamental human rights. It was adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December. 1948, at the Palais de Chaillot in Paris, France. www.un.org/en/universal-declaration-human-rights/ (18/2/2018).

[84] Banton, M. (2015). United Nations. International Convention on the Elimination of All Forms of Racial Discrimination / Beyond discrimination: racial inequality in a postracist era. Ethnic and Racial Studies, 38(13), 2396-2398. doi:10.1080/01419870.2015.1031151 (21/11/2017).

[85] Thuku, M. (2011). Myths, discrimination, and the call for special rights for persons with albinism in sub-Saharan Africa. Amnesty International editorial review on Special Programme on Africa https://albinismawareness.or.tz/wp-content/uploads/2017/04/Calls-for-special-Right-to-People-with-Albinism-Report.pdf (31/8/2017).

[86] Constitution of the Federal Republic of Nigeria, 1999 (as amended). www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm (19/2/2018).

[87] Ibid.

[88] Ibid.

[89] This is also known as the Banjul Charter. It has been domesticated in Nigeria as Africa Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria, 1990.

[90] Ibid.

[91] Ibid.

[92] The Constitution of the Federal Republic of Nigeria, 1999 (as amended). www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm (19/2/2018).

[93] Ibid.

[94] George, A. (1988). Skin Diseases in Tropical Africa. International journal of dermatology, 27(3), 187-189; Healey, N., McLoone, E., Saunders, K. J., Jackson, A. J., & McClelland, J. F. (2014). Are worldwide albinism prevalence figures an accurate reflection? An incidental finding from a Northern Ireland study. British Journal of Ophthalmology, 98(7), 990-990. 

[95] Olagunju, O. S. (2012). Towards a Biblical Response to Myth and Discrimination against the Human Right of Albinos in Yorubaland. Journal of Studies in Social Sciences, 1(1).

[96] Salewi, D. H. (2011). The killing of persons with albinism in Tanzania: A social-legal inquiry. (LLM (Human Rights and Democratisation in Africa)), University of Pretoria, Centre for Human Rights, University of Pretoria.  

[97] The Child Rights Bill was passed into law by the National assembly in July 2003 and was signed into law in September 2003 by the then President Olusegun Obasanjo.

[98] Olomojobi, Y. (2013). Human Rights on Gender, Sex and the Law in Nigeria. Princeton & Associates Publishing Co. Ltd, Ikeja, Lagos, Nigeria.  

[99] Fourth World Conference on Women, 15 September 1995. A/CONF. 177/20 (1995) and A/CONF. 177/20/Add. 1 (1995). See University of Minnesota Human Rights Library, http://hrlibrary.umn.edu/instree/bejingmnu.htm (20/2/2018). By the Declaration, the rape of women and girls in armed conflict became a war crime, a crime against humanity, and could, under certain circumstances, be considered genocide.

[100] The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf (20/2/2018).

[101] Adopted by the agreement of State Parties present at the World Conference on Human Rights in Vienna, Austria, on June 25, 1993. Section 18 of the Declaration emphasises that women’s rights are human rights. It states inter alia, that: “The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights.”

[102] This is the women-specific version of the Banjul Charter, which is, the African Charter on Human and Peoples’ Rights, 1986.

[103] Protocol to The African Charter on Human and Peoples' Rights on The Rights of Women in Africa http://www.achpr.org/files/instruments/women-protocol/achpr_instr_proto_women_eng.pdf (20/2/2018). The Protocol was adopted by the African Union on July 11, 2003 at its second summit in Maputo, Mozambique. The Protocol which entered into force on November 25, 2005 enjoin states to ensure equal rights of women and men. The necessity for this Protocol is contained in the introductory note to the Draft thereof which states inter alia that “To date, no African instrument relating to human rights proclaimed or stated in a precise way what the fundamental rights of women in Africa are. This is thus a vacuum in the African Charter [in relation to protecting women’s rights]” The Protocol guarantees comprehensive rights to women including the right to social and political equality with men, the right to partake in the political process, as well as improved autonomy in their reproductive rights and choices. 

[104] Olomojobi, Y. (2013). Human Rights on Gender, Sex and the Law in Nigeria, op. cit.  

[105] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and. Linguistic Minorities. Adopted by General Assembly resolution 47/135 of 18 December 1992. www.ohchr.org/Documents/Publications/GuideMinoritiesDeclarationen.pdf (19/2/2018).

[106] The said Section 12 (1) provides that: “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.”

[107] Remarkably, the Government of Malawi has initiated a realistic roadmap in this direction. Through its Ministry of Justice and Constitutional Affairs, it compiled and issued a “Handbook for investigators, prosecutors and magistrates concerning offences against persons with albinism” on December 2, 2016. In the preface to the handbook, the country’s Solicitor General and Secretary for Justice, Dr. Janet Banda, wrote, inter alia: “In recent years, Malawi and surrounding countries have seen a sharp increase in attacks on persons with albinism. People with albinism are literally being hunted down and killed in order to have their body parts used for ritualistic purposes. Most of these attacks have resulted in the death of many people with albinism. These attacks in Malawi have become so pervasive and severe that the UN Independent Expert on the Rights of Persons with albinism, Ms. Ikponwosa Ero, has warned that if nothing urgent and decisive is done to halt the attacks, persons with albinism in Malawi risk becoming extinct in a few years.

Like many other stakeholders, therefore, the UN Independent Expert has called upon the Government of Malawi to take strong and sufficient measures to stop the attacks and guarantee the liberty and security of persons with albinism in the country.

The Government of Malawi is mindful of its constitutional and international law obligations towards people with albinism to take practical measures to ensure the protection of their liberty, personal security and dignity. One of the measures that the Government is taking to address the problem is to investigate, arrest and prosecute perpetrators of such attacks through the judicial process. This Handbook has been compiled with the purpose of analysing, simplifying and compiling together all offences in the laws of Malawi that might be useful in responding to attacks against persons with albinism through the court process.

The handbook brings together relevant provisions from the Penal Code, the Anatomy Act, the Child Care, Protection and Justice Act, the Trafficking in Persons Act, and the Witchcraft Act, and provides guidance on the correct use of these offences by investigators, Prosecutors and Magistrates. The handbook highlights already decided court cases (precedents) in Malawi and elsewhere, as well as the recent Practice Direction issued by the Chief Justice of 3rd May 2016 on handling cases involving attacks on persons with albinism. The handbook seeks to strengthen the legal response to crimes against person with albinism.”

[108] Salewi, D. H. (2011). The killing of persons with albinism in Tanzania: A social-legal inquiry. (LLM (Human Rights and Democratisation in Africa), University of Pretoria, Centre For Human Rights, University of Pretoria.  

[109] Olowu, D. (2009). An Integrative Rights-Based Approach to Human Development in Africa: Pretoria: Pretoria University Law Press.

[110] Van Reenen, T. P., & Combrinck, H. (2011). The UN Convention on the rights of persons with disabilities in Africa: Progress after 5 Years. SUR-Int'l J. on Hum Rts., 14, 133.

[111] Steiner, H. J., Alston, P., & Goodman, R. (2008). International human rights in context: law, politics, morals: text and materials: Oxford University Press, USA.

[112] Olowu, D. (2009). An Integrative Rights-Based Approach to Human Development in Africa: Pretoria: Pretoria University Law Press.

[113] Van Reenen, T. P., & Combrinck, H. (2011). The UN Convention on the rights of persons with disabilities in Africa: Progress after 5 Years. SUR-Int'l J. on Hum Rts., 14, 133; Viljoen, F. (1998). Supra-national human rights instruments for the protection of children in Africa: The Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The Comparative & International Law Journal of Southern Africa, Pretoria, 33, 199.

[114] Williams, S. E. (2018). Albinism and the Eye. In Albinism in Africa (pp. 135-149); Cruz-Inigo, A. E., Ladizinski, B., & Sethi, A. (2011). Albinism in Africa: stigma, slaughter and awareness campaigns. Dermatologic clinics, 29(1), 79-87.

[115] Clarke, S., & Beale, J. (2018). Albinism and Social Marginalization. In Albinism in Africa (pp. 257-270).

[116] Ibid.

[117] Lund, P. M., & Roberts, M. (2018). Prevalence and Population Genetics of Albinism: Surveys in Zimbabwe, Namibia, and Tanzania. In Albinism in Africa (pp. 81-98).

[118] Beckman, P. J., Abera, N., Sabella, T., Podzimek, K., & Joseph, L. (2016). From Rights to Realities: Confronting the Challenge of Educating Persons with Disabilities in Developing Countries. Global Education Review, 3(3), 4-27.

 

 

An African’s Lament

By Foluke Ifejola Adebisi (PhD), who teaches law at the Law School, University of Bristol. Foluke is an academic, a public speaker, a creative writer, a musician, a spoken word poet and a blogger. Her blog Foluke’s African Skies is dedicated to Africa and her diasporas, it is an examination of Africa through critical discourse, humour, poetry, and personal reflection.

 

Is there nothing left?

What became of the mighty kingdoms of Jukun and Kanem-Bornu?

The Empires of Benin, Mali, Mossi, Oyo, Kitara, Wolof, Songhai?

 

What became of the people whose stories brought travellers from far off lands to these shores?

Travellers who gazed in wonder at the magnificent splendour of the majesty and the masquerade?

Who remembers the exploits of kings and queens whose legends imbued them with indisputable divinity?

 

Who could withstand Idris Alooma?

Who would not admire Queen Amina of Kano?

Who would not make obeisance before Ovonramwen Nogbaisi?

Would you not shake before Shaka Zulu?

Or kneel before Queen Nzinga?

Would you not be dazzled by Sunni Ali?

Or celebrate Sundiata?

Would you not have kissed the feet of Kabaka Mwanga?

Or feared annihilation by the N’Nonmiton?

What became of the riches of Benin?

The wealth of Mansa Musa?

The splendour of the Asante?

The gold of Buganda?

The gold of Yeke?

The gold of Lunda?

 

Is there nothing left?

Have we sold our souls for a pittance?

Our land for a penny?

Our future for rubble?

Our freedom for blood, devastation, and war?

 

What will we leave to our children but tales of dust and despair?

What is left of the darkness of the night?

 

But we are what is left.

Empires may rise and empires may fall,

But the African spirit is strong, the African heart remains.

We may have eaten a dinner of death and disgust, bitterness and gall.

But we shall rise once more, we shall rebuild again.

Because we are what is left of the night.

And the dark night will flee before us.

The fire burning in our bellies is a resolute spirit, unwavering, unbending, constant, eternal.

Because we are Africa.

We are the lightning and the rain,

The flood and the forests,

We are the midnight whisper and the noonday wail.

We are darkness and magic, we are silence and thunder.

We are the storm.

We are Africa.

We are Africa!

© 2017 Gambia Law Review. All Rights Reserved.

...