Reform

This is the third part of GLR Volume 1 | Issue 1, whereby reform is considered across two broad sub-themes: Government and Finance. For print versions of articles, please email This email address is being protected from spambots. You need JavaScript enabled to view it..

I) Government

 

Africa, the International Criminal Court and the Future of Prosecuting International Crimes in Africa: Re-examining a Frosty Relationship

By Henry Alisigwe and Chimere Arinze Obodo. Henry Alisigwe (Ph.D) is a Senior Lecturer at the Faculty of Law, Imo State University Owerri, Nigeria and currently a visiting Scholar at the University of The Gambia. His research interests include Public International Law, International Humanitarian Law, Human Rights, Law of The Sea and Law of International Institutions. His Email contact is This email address is being protected from spambots. You need JavaScript enabled to view it.. Chimere Arinze Obodo (LL.M Aberdeen) is a Lecturer at the Faculty of Law Imo State University Owerri, Nigeria and currently a Doctoral Researcher at Robert Gordon University, Aberdeen, Scotland. His research interests are in the following areas to wit: Public International Law, Human Rights, Social Justice, Access to Justice and Democracy. His Email address is This email address is being protected from spambots. You need JavaScript enabled to view it..

Abstract

The African Union’s (AU) contemplated collective withdrawal of member states from the International Criminal Court (ICC) on February 1, 2017 gave rise to a widespread optimism that such would engender in more concrete terms the requisite number of ratifications needed to bring into life the Africa Court of Justice and Human and Peoples’ Rights whose protocol has been awaiting the requisite number of ratifications. The Resolution and continuing tardiness in ratifying the protocol on the African Court, while reinforcing doubts about Africa’s ability to prosecute for international crimes committed by her leadership is also a sad commentary on the ICC for its prosecutorial bias against the continent and her leadership. This is more so when ICC’s adventures in other continents are examined. However, it remains moot – given Africa’s poor leadership index – whether the ICC should be commended for giving attention to gross human rights violations or taking advantage of Africa’s weak institutional/governance structure and global position. It is the thesis of this paper that there is an obligation albeit erga ommes of all actors to facilitate the universal reach of the ICC even as the alleged biases are addressed without prejudice to an African quest to develop an efficient regional criminal justice delivery institution.

Introduction

Behind the discourse concerning the ICC’s effectiveness is an emerging accusation of bias against Africans.[1] The hint by three African countries to withdraw from the ICC is undoubtedly damaging.[2] To further amplify this notion, the African Union on February 1st, 2017 adopted a Resolution demanding that member states withdraw from the ICC based on the purported view that the ICC had unfairly targeted African leaders and undermined the sovereignty of African states.[3] It is not in doubt that states are within their legal rights to renounce the ICC because the Rome Statute of the International Criminal Court (parent treaty of the ICC, hereafter called the ‘Rome Statute’) permits states, through a written notification addressed to the Secretary-General of the United Nations to withdraw from the ICC.[4] However, any notice of withdrawal from a state party takes effect one year after the receipt of such formal notice of withdrawal by the United Nations Secretary-General.[5] This one-year hiatus allows the ICC jurisdiction to investigate and commence trials where necessary.[6] Of course, this ensures that a hoax withdrawal does not foreclose the ICC’s immediate jurisdiction where there is an established or alleged violation of international crime. Yet, the innovative significance of this provision cannot quell the damage to ICC’s reputation that may arise if the Africa Union withdrawal resolution is eventually implemented by member states.[7]

To assess the response of African leaders on the effectiveness of ICC, Kenyatta[8] in 2015 African Union Summit argued that his ICC trial affected his ability to fight against insurgency and an abuse of his immunity as a Head of State.[9] Meanwhile, Museveni of Uganda in his July 2016 inauguration speech labelled the ICC “a bunch of useless people”, and further counselled other African states to exit the ICC completely.[10] Furthermore, whereas nine out the ten countries under investigation are in Africa, the Democratic Republic of Congo (DRC), Central African Republic (CAR), and Uganda were self-referrals, and Sudan and Libya were referred by the UNSC, while Kenya, Cote d’Ivoire,[11] and Mali were referred by the Office of the Prosecutor.[12] Thus, regional and state judicial systems in Africa are decried as heresy in the prosecution of international crimes because they tend to embody normative or enforcement challenges that obstruct effective justice and accountability.[13]

The African regional system is faced with jurisdictional and procedural challenges of interpreting and enforcing international human rights laws.[14] The position on ICC prosecution of crimes against humanity and international crime has been amongst the areas which African leaders have made prominent. Instead of African leaders establishing an effective regional judicial system, they have rather constituted a clog in the effectiveness of the ICC against impunity and atrocities of some regimes within the region. To that effect, this study argues that a collective withdrawal from the ICC by African Union member states will heighten the impunities perpetrated within the continent. Accordingly, it opines that such resolution, in the absence of an alternative effective judicial system in Africa will aggravate the sufferings of victims of such international crimes and crimes against humanity. This will lead to an elimination of the only hope for redress to victims given the obvious weaknesses of enforcement institutions within the continent.[15] 

Foundation and Framework of the International Criminal Court

The desire for the establishment of a permanent international court has been visible since the end of World War II.[16] Events following World War II evolved in the prosecution of some of Nazi and Japanese war criminals, and heralded a flicker of hope for an international judicial system.[17] Thus, the Rome Statute is the product of extensive efforts to commit states towards an international judicial system,[18] resulting from the successful outings of the Nuremberg and Tokyo tribunals respectively, as well as the ad hoc tribunals for the trial of Rwandan and Yugoslavian genocides.[19] Consequently, the Rome Statute created the ICC[20] as an international independent judicial institution for the trial of heinous international crimes,[21] such as crimes against humanity, genocide, and war crimes.[22] As a result of the first review of the Rome Statute, crimes of aggression have been added to international crimes under the ICC’s jurisdiction.[23] However, 30 states must ratify this amendment for this inclusion to come into effect. In addition to this, state parties will only make a positive decision to activate the jurisdiction after 1 January 2017.[24]

The Rome Statute is a landmark treaty in the prosecution of international crimes as it represents a departure from the ad hoc and special tribunal systems adopted prior to its emergence. The ICC jurisdiction excludes crimes committed before the coming into force of the Rome Statute.[25] Written in a neutral language, the Rome Statute has 128 articles contained in 13 uneven parts. Part 1 consists of articles 1-6, which contains the establishment of the ICC, the relationship of the ICC with the UN, and the seat of the ICC. Part 2 focuses on the jurisdiction, admissibility and applicable law. The general principles of criminal law are contained in part 3 in articles 22-33, which elaborates individual criminal responsibility, a statute of limitation as well as grounds for excluding criminal responsibility. Part 4 provides for the composition and administration of the ICC whereas articles 53-61 focuses on investigation and prosecution under part 5. Trial under the ICC is the focus of part 6 whilst article 76 addresses the issue of sentencing. Part 7 provides for penalties with articles 81-85 under part 8 focusing on appeals and revision of ICC decisions. International cooperation and judicial assistance are explained in part 9 in articles 86-102, which advocates member states obligation to assist the ICC in arrest, surrender, and investigation. Part 10 provides for enforcement of ICC decisions, with article 103 establishing the role of states in the enforcement of sentences of imprisonment. Assembly of state parties is contained in a single article part 11, whereas part 12 focuses on the financial obligations, regulation, and audit of the ICC. Finally, part 13 contains final clauses which comprises provisions for amendment, reservations, settlement of disputes, withdrawal, entry into force, and signature, ratification, acceptance, approval or accession. Abass describes the Rome Statute as a new set of international criminal law and a new judicial institution for the trial of international criminal offences.[26]

The ICC serves as a court of last resort in the fight to end impunity and grievous crimes, globally. Article 12 provides some expanded conditions on the jurisdiction of the ICC. Its jurisdiction covers crimes committed by State Parties[27] and non-State Parties where such state willingly accepts the court’s jurisdiction[28] or where a situation is referred to the prosecutor by the UNSC under article 13 (b). Emphatically, the persecutor has the power to initiate an investigation of crime within the jurisdiction of the ICC.[29] It is arguable that this power has not frequently been explored outside situations in the African continent. Mutua concluded that the ICC in the exercise of its duties assumes a universal jurisdiction over most egregious offences.[30] Article 1 of the Rome Statute establishes the complementary role of the ICC to national criminal jurisdictions. Clapham described this complementary role as a recognition of national courts, in which priority must be given before submitting to the jurisdiction of the ICC.[31] The complementary article is intended to preserve the Court’s power over irresponsible states that refuse to prosecute those who commit heinous crimes.[32] The provisions act as an alternative to seemingly weak national judicial institutions across the globe.

The Rome Statute reiterates the consideration for the conduct of unbiased trial of crimes under Article 5 for state parties or on any other state through a special agreement. Simply put, the ICC effectively carries out this responsibility through four major organs: the Presidency, judicial arm, the Office of the Prosecutor, and the Registry.[33] Furthermore, while the ICC is not structurally part of the United Nations (UN) system, it retains a cooperative relationship with the UN for the attainment of international peace and security through an agreement that allows the United Nations Security Council (UNSC) to refer and defer situations to the Court.[34] Under article 42, the prosecutorial branch has the sole responsibility of receiving, investigating and examining referrals and information on crimes and the onward prosecution of suspected individuals. Accordingly, successful prosecutions by the ICC are largely dependent upon on the nature of its relationship with state parties. For example, under part 9 of the Rome Statute, state parties undertake to cooperate fully with the ICC in the investigation and prosecution of crimes within the ICC jurisdiction. Hence, state parties are mandated to ensure national law procedures are available for all manner of cooperation specified under part 9 of the Rome Statute,[35] and such include the surrender of persons to the ICC, arrest of persons, questioning of persons under investigation, identification and whereabouts of persons or items, service of documents, execution of searches and seizures, amongst others.

It is, however, not surprising that the approach of Rome Statute bodies is also an obstacle to its overall objective as some state parties have expressed their desire to invoke article 127 provision that allows withdrawal from the Rome Statute. For example, Russia, Burundi, Zambia, Gambia and South Africa have at one time or another expressed dissatisfaction with the ICC and indicated interest in withdrawal from the Rome Statute claiming bias or conflict with national interest and sovereignty.[36]

ICC and the African Experience

Although one-third of the ICC’s membership is from the African block, many of these states were also central in negotiating the Rome treaty.[37] In fact, 33 of 54 states in Africa form part of the overall 123 signatory countries to the Rome Statute.[38] Compared to their non-African counterparts, African leaders have gained more attention from the ICC, hence rendering them uncomfortable with its modus operandi. For example, the arrest warrant issued against serving Sudanese president in accordance with article 27 provision has been perceived as disregarding and disrespecting the President’s immunity. It is arguable that this decision has caused significant worry to African presidents whose leadership styles give rise to a possible indictment, arrest, and trial by the ICC.[39] Some other African Presidents are on the ICC investigation list,[40] and for this reason, African leaders could build a strong case that the ICC is targeting only Africans.

Africa has an unpleasant history of human rights abuse with many post-colonial states, having witnessed different kinds of armed civil and political conflicts.[41] Accordingly, a good number of African states have been engulfed in civil and political conflicts amidst weak incentives for justice and accountability under their national judicial institutions.[42] Despite this, the support Africa has shown to the ICC through case referrals has had some positive significance against the plethora of weak legal systems existing in many African states[43] – an impact centred on the legal obligation of states to the provisions of the Rome Statute. For example, Senegal was the first country to ratify the Rome Statute.[44] This gesture could be considered as a quest for justice against serious crimes at a time in history by some African states.

Mbaku noted that Africa was quick to embrace the Rome Statute due to its concern at preventing stronger political and economic nations from invading them.[45] Disadvantaged by prevalent civil and political instability, some African states lack capacity to deal with the numerous security and political challenges and eventual breakdown of law and order and efficient enforcement system. Against this background, African states sometimes enter into bilateral and multilateral agreements with developed and industrialised nations, international organisations and multinational corporations for their economic, civil and political development.[46] Some international bodies exhibit inequalities in their political and structural organisation. For instance, the non-inclusion of any African states among the permanent members in the UNSC denies the continent the right to veto decisions on the use of force against states in the region.[47] Even when some permanent member states of the UNSC are not state parties to the Rome Statute,[48] they can influence organisations and their outcomes through their power of veto,[49] thus giving UNSC permanent member states the opportunity to act within and outside the legal ambit of the Rome Statute. 

The imbalance in the UNSC has affected the ICC because under the Rome Statute, the UNSC has the power to refer cases to the prosecutor.[50] For example, UNSC referred Libya and Sudan to the ICC, leading to the ousting of President Ghadaffi in 2011. The fact that other situations such as Syria and Israel have not been referred to the ICC present a strong argument to support the claim of bias against Africa.[51] 

There are good reasons to have an unbiased and efficient ICC especially for the fact that victims of atrocities anywhere in the globe want justice. As said earlier, Africa has experienced a significant number of atrocities under the jurisdiction of the ICC ranging from genocide to mass murder, extermination, enslavement, torture, rape, crime of apartheid, enforced disappearance of persons, inhuman acts causing great suffering, or serious body injury or to mental or physical health, war crimes, and to crimes of aggression.[52] Ordinarily, this would make Africa a natural focus for the ICC and a reason why the complaint of bias from the ICC as propelled by the African political elites who are intertwined with some of these atrocities has continued to thrive. For the victims of these atrocities in Africa, justice served by anyone is what matters most.

However, Africa has a genuine case, and this deals more with its observation that the eight convicted defendants at the ICC are Africans from situations in Kenya, Uganda, Libya, Mali, Sudan, CAR, DCR, and Cote d’Ivoire.[53] The need for the ICC to act in a just manner cannot be described as an aspiration of Africa alone, especially in instances where powerful states act with utmost impunity and are not held accountable – for example, the role of the United States of America and the United Kingdom in the invasion of Iraq and war crimes committed thereupon. In another recent development, soon after the UN General Assembly started an investigation on atrocities committed by Russia in the occupation of Crimea, Russia immediately pulled out of the Rome Statute.[54] Failure of the ICC to expansively address situations committed by powerful states and in other continents such as Afghanistan, the Israel/Hamas/Palestine conflict, and the ongoing Syrian war has amplified the establishment of bias against Africa. For one thing, this development leaves a wrong impression about the ICC and will consequently affect ICC’s functions, more especially, given that its effectiveness lies in the interplay and cooperation with the state parties.[55]

At the same time, it is important to remember that in four situations before the ICC – Uganda, Mali, CAR, and the DRC, the states on their volition referred the cases to the ICC under article 14 whereas, in situations pertaining to Kenya and Cote d’Ivorie, the ICC on its impulse through the prosecutor initiated the cases. Mbaku described instances of referrals by some African states as a costume to avoid challenged leadership from certain leaders of armed groups.[56] For instance, President Museveni of Uganda who previously referred the Lord’s Resistance Army case to the ICC is today one of the leading voices in the crusade for African exit from the ICC. Therefore, what this entails is that state referrals cannot be interpreted as full acceptance of the international criminal justice system of the ICC by African political elites.

Although the movement for mass exit of African states out of the ICC is rife within the political elites, it is unequivocal that facts establishing the innocence of accused persons have never been raised or evidential existence of alternative efficient justice within the region. Besides, some African leaders overtly ensure that domestic apparatus for accountability are weakened and ineffective amidst absence of a regional judicial system for prosecution of international crimes.[57] For this reason, the ICC has maintained that although the prosecution of Africans are higher than those of other continents, what the ICC has always targeted is impunity and not Africans. The understanding of this gesture could be that violations of Rome Statute provisions are taken more seriously when situations concern Africa. In fact, the complexity of such ideological differences reaches its extremes if one argues that victims of impunities outside Africa are irrelevant and inconsequential compared to victims within the African region.

It is noteworthy that African states where widespread armed conflicts are ongoing or in early post-conflict years will understandably have weak judicial institutions to provide justice. Whereas this may be the case in countries such as Libya, South Sudan, and the CAR, it is however clear that many African states have enacted national legislation implementing the provisions of the ICC.[58] Accordingly, such domestic enactments demonstrate the extent to which African states are willing to bring justice to victims and further hold perpetrators accountable for the most serious crimes of international concern.[59] However, the extent to which countries have implemented these domestic laws is not the subject of this literature.

Africa, International Criminal Court and the Way Forward 

Since the issuance of the first arrest warrant against Al-Bashir of Sudan in 2009 by the ICC, the relationship between the African Union has continued to worsen. Even with the legality of this warrant under article 27, the AU denounced this move for these two reasons: an impediment to AU’s peace efforts in Sudan, and an affront against the international customary rule on immunity of sitting heads of states.[60] State parties to both the AU and the Rome Statute have continued to react differently to the strained relationship between the AU and ICC. For instance, whilst Nigeria and Senegal are openly opposed to the AU resolution to withdraw from the ICC; South Africa, following immense pressure from organised civil society agreed to arrest Al-Bashir if he visited the country for President Zuma’s inauguration. Further, in 2011, President Mutharika of Malawi hosted Al-Bashir when he attended Common Market for Eastern and Southern African States summit relying on AU’s resolution against ICC’s arrest warrant and the fact the Sudan was not a party to the Rome Statute.[61] Subsequently, the ICC in accordance with articles 86, 87(7) and 89 of the Rome Statute, admitted that Malawi failed in its obligation by not cooperating with the ICC by arresting and surrendering Al-Bashir to the ICC, thus ordered the Registrar to transmit the decision to the UNSC through the Secretary-General of the UN and, to the Assembly of State Parties to the Rome Statute for further action.[62]

Although the question of immunities is central to the AU more so, after the second arrest warrant against Al-Bashir in 2010 and subsequent investigation and trial of President Kenyatta of Kenya and his deputy, William Ruto, article 27 of the Rome Statute is a clear case of an exception to customary international law on immunities to heads of state and some of their senior officials.[63] This perception needs to be sustained and supported by states and stakeholders if the ICC can efficiently continue as a safety net where domestic institutions fail to provide justice to victims of atrocities.[64] Besides, African state parties to the Rome Statute have waived the rights to immunities of their political elites and leaders by their membership to the ICC. This is more so given that the core objectives of the Constitutive Act of the African Union include encouraging international cooperation; promotion of peace, security and stability on the continent; and, protection and promotion of human rights.[65] Critiques of the African Constitutive Act objectives have centred on implementation by both regional and domestic institutions, which have generated debate on the multifaceted challenges encountered in the efficient implementation of article 3 provisions of the AU Constitutive Act.[66] However, the case against Sudanese President has proved that non-membership of the Rome Statute cannot bar a country from ICC prosecution because any UN member state can be referred by a UNSC resolution.

Obligations of the state parties to completely adhere to Rome Statute provisions can be arduous and complex in a world characterised by differing legal systems, and a lack of political will to adhere to their commitment.[67] Even as the AU resolution appears to have failed for now, it is unclear whether the AU has a legal justification to order its member states to withdraw from their obligations under international treaties which AU member states independently and voluntarily entered into. This is increased in the absence of an alternative African mechanism to deal with challenges and problems posed by the enforcement against international crimes. Rather, state parties should be encouraged to take positive and corrective action by domesticating the Rome Statute to guarantee justice to victims of atrocities and reduce acts of impunity by political elites and non-state actors. Such action must be taken to give effect to ICC compliance with article 1 provision of the Rome Statute on complementing national criminal jurisdictions. Hence, the fundamental feature of the ICC is that it assumes jurisdiction over cases where domestic courts are unable or unwilling to genuinely prosecute perpetrators of most serious crimes in their domestic courts.

Article 1 of the Rome Statute gives state parties a choice to prosecute their own, or they will be tried at the ICC at The Hague in the Netherlands.[68] Both domestic and regional judicial institutions have a vital role where they are available. Thus, the AU and its member states even if they have a good case against the ICC should show more empathy for the promotion of justice against impunity. An effective regional criminal court will end Africa’s displeasure against the ICC.

African Court of Justice and Human and Peoples Rights

The friction between the AU and the ICC has culminated in the amendment and retaliatory conferring on the African Court of Justice and Human Rights (ACJHR) with international criminal jurisdiction.[69] The ACJHR as suggested by the then AU Chairperson, President Obasanjo of Nigeria, is a proposed merger of the existing African Court on Human and Peoples’ Rights and the Court of Justice of the African Union. The Protocol on the Statute of the African Court of Justice and Human Rights (parent statute of the ACJHR) was adopted in 2008 and has so far been ratified by six out of fifteen states needed for it to come into force.[70]

However, an amendment to the merged parent statute of the ACJHR by AU Commission which is meant to midwife the African Court of Justice and Human and Peoples Rights[71] when adopted will confer upon the ACJHPR jurisdiction over international crimes such as genocide, crime against humanity, war crimes, piracy, and terrorism.

This radical change in the African regional judicial landscape commenced in 2010, following AU introduction of a new legal instrument, the Protocol of Amendments to the Protocol on the Statute of African Court of Justice and Human Rights (Amending Merged Court Protocol).[72] As the process of amendment continues, a draft amended protocol was adopted by the African government legal experts, Ministers of Justice and Attorney Generals in May 2012. Although the potential effect of having a regional judicial institution with criminal jurisdiction is appreciated, it is indeed a matter of great concern. However, while it is correct to state that the efforts to establish regional courts in Africa predates the strained relationship between AU and the ICC, this merger according to President Obasanjo was due to the concern at the growing number of AU institutions, which many AU member state could not afford. [73]

Advantaged by the prevalent understanding of African political elites against the ICC, the AU Assembly may be bent on adopting the amendments to the Statute of the ACJHR. However, the underlying need for the ACJHPR to assume jurisdiction for international crimes was further boosted by article 25(5) of the African Charter on Democracy, Elections, and Governance,[74] with the requirement that AU formulates a novel international crime for an unconstitutional change of government. There are no doubts that some African leaders will support this proposal to specifically undermine the ICC, irrespective of whether the ACJHPR will be efficient in carrying out its criminal jurisdiction mandate.

Given Africa’s record of human rights atrocities and the slow or weak regional and national judicial systems, it has been argued that to develop a regional court with criminal jurisdiction will be an unnecessary duplication of the ICC that can at best give soft landing shield to tyrannical African leaders from justice.[75] Whilst there is nothing wrong with the issue of duplication, it cannot be established if such a move would supplant or completely undermine the ICC except if AU member states withdraw from the Rome Statute as proposed by the AU resolution. Thus, vesting the ACJHPR with international criminal jurisdiction is a worthy development to end impunity committed within the region if such court is efficiently and independently run without interference. Rather than condemn the proposed criminal jurisdiction of the ACJHPR as a confrontation with the international community or an unnecessary duplication, AU should be more concerned with the capacity to fulfil the ambitious tripartite mandate of the ACJHPR which extends to human rights, general affairs, and international crimes. Some related concerns should cover funding and staffing of the ACJHPR because a vast amount of money is required to run international criminal trials and the administrative task through adequate staffing. The impartiality and independence of the ACJHPR must always be guaranteed if taken as effective. Lastly, a relationship between the ACJHPR and the ICC must be considered given the large number of African state parties to the ICC, regarding primacy by AU member states. That notwithstanding, whether the ACJHPR will see the light of the day is not completely plausible given the present reluctance of many African countries to ratify the protocol on the establishment of the African Court of Justice and Human and Peoples’ Rights.

Conclusion

This study has looked at the interplay between the AU and ICC. In the context of the debate that the ICC process is selective and bias towards Africa, the article has attempted to explore whether Africa can find an African solution to cover its strained relationship with the ICC in relation to providing justice to victims of international crimes committed within its region. Undoubtedly, the increasing number of prosecution of Africans will continue to raise the debate by African political elites against the ICC. This debate will continue to evolve in response to ICC efforts to prosecute Africans suspected of international crimes within the jurisdiction of the Rome Statute, which is indicated by numerous human rights violations prevalent in many African states. On the other hand, an alternative court by the AU for the trial of international crimes could lead to the denial and suppression of justice to victims of international crimes if efficient and adequate measures are not considered to guarantee an impartial, independent, effective and well-funded ACJHPR. AU member states must therefore take steps to eliminate deficiencies in the administration of justice.

This article has also highlighted the challenges that must be overcome if AU decides to continue with imposing criminal jurisdiction to the ACJHPR. However, it is difficult to either accept or deny that the ICC has an African problem; rather it argues for the ICC to be equitable and unbiased in carrying out its treaty mandates. To a significant extent, until the relationship between the ICC and AU becomes clearer, whether AU’s resolution for collective withdrawal from the ICC would force the ICC to soft-pedal cannot be ascertained now. However, one thing is sure: the foundation and reputation of the ICC cannot be the same.

It is trite that the outcome of the AU’s resolution on the ICC is hinged on the lofty international idea of reducing prosecutorial impunity and bias against Africans, and promoting a culture of accountability and justice among all nations. There is a need for AU to realise that it can turn around Africa’s negotiating power with its numbers in international affairs. The resolution on the ICC is a test case. However, this article concludes that AU resolution on the ICC must purposely work towards eliminating safe havens for tyrannical African leaders and non-state actors seeking to evade justice.

Footnotes

[1] Alebachew Enyew, ‘The Relationship between International Criminal Court and Africa: From Cooperation to Confrontation? (2015) Bahir Dar University Journal of Law, Vol. 3, No. 1; Ademola Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’ (2013) European Journal of International Law, Vol. 24, No. 3, 933; Obiora Okafor and Uchechukwu Ngwaba, ‘The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections’ (2015) International Journal of Transitional Justice, Vol. 9, No. 1, 90; Anna Triponel and Stephen Peason, ‘African States and the International Criminal Court, A Silent Revolution in International Criminal Law (2010) Journal of Law and Social Challenges, Vol. 12, available at >https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1850358&rec=1&srcabs=1270369.&alg=1&pos=8< accessed 15 March 2017.

[2] The following countries have in the past hinted its readiness to exit the ICC- South Africa, Burundi and Gambia. Whereas Thirty-Four African countries are parties to the ICC Rome Statute, the most damaging and surprising is South Africa whose role at the drafting stage ensured Apartheid was recognised as a crime against humanity. See ‘The Politics of Departure: Africa and the International Criminal Court’, available at >http://reliefweb.int/report/world/politics-departure-africa-and-international-criminal-court< accessed 07 November 2016.

[3] BBC News, February 1, 2017, ‘African Union backs Mass Withdrawal from the ICC’ available at >http://www.bbc.com/news/world-africa-38826073< accessed 26th March 2017.

[4] See article 127 of the Rome Statute.

[5] See article 127 of the Rome Statute.

[6] See generally article 127 (2) of the Rome Statute.

[7] It is worth mentioning that Nigeria and Senegal were opposed to AU resolution to withdraw from the ICC. See generally, BBC News, February 1, 2017, ‘African Union backs Mass Withdrawal from the ICC’ available at >http://www.bbc.com/news/world-africa-38826073< accessed 26th March 2017.

[8] The President of Kenya and the first serving President to appear before the ICC.

[9]Aljazeera news, ‘ICC Debate: Africa Vs ‘Infamous Caucasian Court’?’, available at >http://www.aljazeera.com/news/2016/10/icc-debate-africa-infamous-caucasian-court-161028142708060.html< accessed 08 November 2016.

[10] See ibid. 

[11] Cote d’Ivoire was not a signatory to the ICC when it was referred to the ICC but it nevertheless, accepted ICC’s jurisdiction over it. 

[12] Nine out the ten countries under investigation are in Africa, and the court has 10 preliminary investigations elsewhere in the world including Colombia, Ukraine, Palestine, and Iraq. See ‘Situations under investigation’, available at >https://www.icc-cpi.int/pages/situations.aspx< accessed 7 November 2016.

[13] Frans Viljoen, ‘A Human Right Court for Africa and African’ (2005) 30 Brook Journal of International Law 1; NsonguruaUdombana, ‘Towards the African Court on Human and Peoples Rights: Better Late than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45.

[14]Oji Umozurike, ‘The African Charter on Human and Peoples’ Rights: Suggestions for More Effectiveness’ (2007) 13 Annual Survey of International and Comparative Law; Morris Mbondenyi and Nixon Sifuna, ‘A Review of Procedural and Jurisdictional Challenges in Enforcing International Human Rights Law under the African Charter Regime’ (2006) Berkeley Legal Press, available at >http://law.bepress.com/expresso/eps/1869/< accessed 26 March 2017; Richard Gittleman, ‘The African Charter on Human and Peoples' Rights: A Legal Analysis’ (1988) Virginia Journal of International Law, vol. 22 No. 4, 667; MakauMutau, ‘The African Human Rights System: A Critical Evaluation’ (2001) United Nations Development Programme, 12; Frans Viljoen, ‘A Human Right Court for Africa and African’ (2005) 30 Brook Journal of International Law 1; Nsongurua Udombana, ‘Towards the African Court on Human and Peoples Rights: Better Late than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45.

[15] This argument is supported following the level of ratification of the Protocol to the Establishment of the African Court on Human and Peoples’ Rights, more especially, the Articles relating to access and jurisdiction.

[16] Alebachew Enyew, ‘The Relationship between International Criminal Court and Africa: From Cooperation to Confrontation? Op.cit (note 1 supra); Melissa Marler, ‘The International Criminal Court: Assessing the Jurisdictional Loopholes in the Rome Statute’ (1999) 49 Duke Law Journal, 825.

[17] Sidhu Singh, ‘The Future of International Criminal Law: The International Criminal Court’ (2000) Touro International Law Review, Vol. 1.

[18] The Rome Statute was adopted in 1998 as the first permanent international tribunal to prosecute heinous crimes and by meeting Article 126 requirement, the Rome Statute came into force on July 1, 2002.

[19] Anna Triponel and Stephen Peason, ‘African States and the International Criminal Court, A Silent Revolution in International Criminal Law (2010) Journal of Law and Social Challenges, Vol. 12, available at >https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1850358&rec=1&srcabs=1270369.&alg=1&pos=8< accessed 15 March 2017.

[20] The Rome Statute was adopted in 1998 as the first permanent international tribunal to prosecute heinous crimes and by meeting Article 126 requirement, the Rome Statute came into force on July 1, 2002.

[21] See generally, Sixth session of the Conference of the Parties to the United Nations Convention against Transnational Organized Crime, 2012. Serious international crime is defined in article 2 (b) of the Organized Crime Convention as meaning ‘conduct constituting an offence punishable by maximum of deprivation of liberty of at least four years or a more serious penalty’.

[22] See article 5-8 of the Rome Statute. 

[23] The first Review Conference of the Rome Statute was held in Kampala, Uganda in 2010. See generally, ‘Report on the First Review Conference on the Rome Statute’ available at >http://www.iccnow.org/documents/RC_Report_finalweb.pdf< accesses 07 April 2017;‘Review Conference of the Rome Statute’ available at >http://archive.iccnow.org/?mod=review< accessed 11 April 2017.

[24] Ibid.

[25] See article 11(1) of the Rome Statute.

[26] Ademola Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’ (2013) European Journal of International Law, Vol 24, No. 3, 933.

[27] See article 12 (1) of the Rome Statute.

[28] See article 12 (3) of the Rome Statute.

[29] See article 13 of the Rome Statute.

[30] Makau Mutua, ‘The International Criminal Court in Africa: Challenges and Opportunities’ (2010) Norwegian Peacebuilding Centre NOREF Working Paper; Buffalo Legal Studies Research Paper No. 2011-003, available at >http://dx.doi.org/10.2139/ssrn.1684147< accessed 18 February 2017.

[31] Andrew Clapham, ‘Issues of Complexity, Complicity and Complementarity: From the Nuremberg Trials to Dawn of the New International Criminal Court’, in P. Sands (eds), From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge University Press, England, 2003) 63.

[32] Mohammed El Zeidy, The Principle of Complementarity in the International Criminal Law: Origin, Development and Practice (Martinus Nijhoff Publishers, Leiden 2008) 158; see also Article 17 (2) and Article 17 (3) of the Rome Statute.

[33] See article 34 of the Rome Statute.

[34] See article 2, 4, 13(b) of the Rome Statute; see also article 39-51 of the UN Charter; Ilias Bantekas and Susan Nash, International Criminal Law, (2nd Edition, Cavendish Publishing, 2003) 376.

[35] Article 88 of the Rome Statute.

[36] Bartram Brown, ‘The International Criminal Court in Africa: Impartiality, Politics Complementarity and Brexit’ (2017) Temple International and Comparative Law Journal, 145; The Guardian News, ‘Burundi Becomes the First nation to Leave International Criminal Court’, available at >https://www.theguardian.com/law/2017/oct/28/burundi-becomes-first-nation-to-leave-international-criminal-court< accessed 14 March 2018.

[37] Africa has 34 signatories to the Rome Statute. The guardian, ‘African Union members back Kenyan plan to leave ICC’, available at >https://www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-leave-international-criminal-court< accessed 08 November 2016.

[38] State Parties to the Rome Statutes, available at >https://asp.icc-cpi.int/en_menus/asp/states%20parties/african%20states/Pages/african%20states.aspx< accessed 14 March 2018. Burundi officially withdrew from International Criminal Court with effect on Friday, 27 October 2017.

[39] Immunity of serving presidents was raised by South African authorities for not arresting and handing over Sudanese President, Al Bashir, and their subsequent declaration to withdraw from the Rome Statute. 

[40] Though Kenyan President, Kenyatta was the first serving Head of State to appear before the ICC, his charges have been dropped while his Deputy is still investigated. Sudan’s AL Bashir is still wanted at the ICC with two arrest warrants issued against him by the Court whereas Burundi president is under investigation.

[41] Many countries such as Nigeria, Liberia, Sierra-Leone, Uganda, Burundi, Congo, CAR, Kenya, Sudan, South Sudan, have in one time witnessed armed, civil and political conflicts. Many are still rated as failed states in the Fragile States Index, see >http://fsi.fundforpeace.org/rankings-2015< accessed 21 June 2017. 

[42] Ongoing crisis in Burundi, South Sudan, Central African Republic, Cameroon, Somalia, and many others.

[43] Obiora Okafor and Uchechukwu Ngwaba, ‘The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections’ (2015) International Journal of Transitional Justice, Vol. 9, No. 1, 90.

[44] Senegal ratified the Rome Statute on February 2, 1999.

[45]John Mbaku, ‘International Justice: The international Criminal Court and Africa (2014) The Bookings Institution? Africa Growth Initiative 9.

[46] Adams Oloo, ‘The Place of Africa in the International Community: Prospects and Obstacles’ (2016) Open Access Library Journal, Vol. 3, No. 1, available at >http://www.scirp.org/journal/PaperInformation.aspx?PaperID=69185< accessed 11 March 2017.

[47] Permanent members are China USA, UK, France and Russia; while the body has created for 10 non-permanent membership positions, these countries do not have veto power and only serve a non-concurrent 2-year term.

[48] The United States is a notable absence, and the recent withdrawal of Russia. With the power of veto, any UNSC permanent member state can stop any investigation by the ICC as evidenced in the Syria conflict when China and Russia voted against referral.

[49] R S Swagerty, ‘Power, Interest and Representation in Global Governance’, Paper presentation at the 2012 Annual Meeting of the Midwest Political Science Association, Chicago, April 12-15.

[50] See articles 2, 4 and 13 of the Rome Statute.

[51] John Duggard, ‘Palestine and the International Criminal Court: Institution Failure of Bias?’ (2013) 11 (3) Journal of International Criminal Justice, 563.

[52] See articles 6-8 of the Rome Statute. Countries that have experienced some of these atrocities include Rwanda, CAR, Burundi, Kenya, Somalia, Liberia, Cote d’Ivorie, amongst others.

[53] For more details, see International Criminal Court, available at >https://www.icc-cpi.int/cases#Default< accessed 16 November 2017. 

[54] Aljazeera news, ‘Russia pulls out from International Criminal Court’ available at >http://www.aljazeera.com/news/2016/11/russia-pulls-international-criminal-court-161116132007359.html< accessed 18 November 2016.

[55] See article 86 and 87 of the Rome Statute; it is worthy to note that any strained relationship between the Court and State Parties will affect investigation, arrest, the surrendering of suspects and prosecution functions of the Court.

[56] John Mbaku, ‘International Justice: The international Criminal Court and Africa op.cit (note 43 supra)

[57] See the situation in Burundi and CAR. However, human rights enforcement under the African Court of Human and Peoples Rights face both contextual and multifaceted challenges with impediments including but not limited to access to court, lack of independence of judiciary, maladministration, executive lawlessness and lack of political will to enforce judgments.

[58] Example of such countries include South Africa, Uganda, Kenya, Central African Republic, and Senegal.

[59]Anna Triponel and Stephen Peason, ‘African States and the International Criminal Court, A Silent Revolution in International Criminal Law’ (2010) Journal of Law and Social Challenges, Vol. 12, available at >https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1850358&rec=1&srcabs=1270369.&alg=1&pos=8< accessed 15 March 2017.

[60] Max Plessis, Tiyanjana Maluwa, and Annie O’Reilly, ‘Africa and the International Criminal Court’ (2013) available at >https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/0713pp_iccafrica.pdf< accessed 16 November 2017.

[61] However, President Banda of Malawi in 2012 agreed to arrest Al-Bashir if he attended AU summit in the country.

[62] Decision against Malawi pursuant to articles 86, 87 and 89 of the Rome Statute available at >https://www.icc-cpi.int/CourtRecords/CR2011_21722.PDF< accessed 16 November 2017.

[63] Philomena Apiko and Faten Aggad, ‘The International Criminal Court, Africa and the African Union’ Discussion Paper number 21 for European centre for Development Policy Management (November 2016), available at > http://ecdpm.org/wp-content/uploads/DP201-ICC-Africa-AU-Apiko-Aggad-November-2016.pdf< accessed 14 March 2018.

[64]Makau Mutua, ‘The International Criminal Court in Africa: Challenges and Opportunities’ (2010) Norwegian Peacebuilding Centre NOREF Working Paper; Buffalo Legal Studies Research Paper No. 2011-003, available at >http://dx.doi.org/10.2139/ssrn.1684147< accessed 18February 2017.

[65] See article 3 of the Constitutive Act of the AU.

[66]Kindiki Kithure, ‘The normative and institutional framework of the African Union relating to the protection of human rights and the maintenance of international peace and security: A critical appraisal’ (2003) 3 African Human Rights Law Journal, 99; Carolyn Martorena, ‘The New African Union: Will it Promote Enforcement of the Decisions of the African Court of Human and Peoples’ Rights?’ (2008/2009) George Washington International Law Review, 583; Nsongurua Udombana, ‘Can a Leopard can its spots? The African Union Treaty and Human Rights’ (2002) 17 American University of International Law Review, 1177; Gabriel Amvane, ‘Intervention Pursuant to Article 4 (h) of the Constitutive Act of the African Union Without United Nations Security Council Authorisation’ (2015) 15 African Human Rights Law Journal 283; Magnus Killander and Bright Nkrumah, ‘Human Rights Development in the African Union During 2012 and 2013’ (2014) 14 African Human Rights Law Journal 275.

[67] Allan Ngari ‘Africa’s ICC Concerns are Ignored at Everyone’s Peril ‘available at >https://www.issafrica.org/about-us/press-releases/africas-icc-concerns-are-ignored-at-everyones-peril< accessed 18 November 2016.

[68] Article 3 provides that the seat of the ICC shall be at The Hague, in the Netherlands, even though the Court may sit elsewhere whenever it considers it desirable.

[69] It succeeded the African Court of Justice and Human rights (ACJHR) See also, Ademola Abass, ‘The Proposed    International Criminal Jurisdiction for the African Court: Some Problematic Aspects’ (2013) Netherlands International Law Review, 28.

[70] The following states have ratified the ACJHR- Mali, Liberia, Burkina Faso, Benin, Congo, and Libya.

[71] Hereinafter called ACJHPR

[72]  For a full text of the merger protocol and statute of the African Court of Justice and Human and Peoples’ Rights. See www.issafrica.org/anicj/upload/protocol_on_the_statute_of_the_ACJHPR.pdf. Accessed on 10/3/2018

[73] Michael Ogwezzy, Challenges and Prospects of the African Court of Justice and Human Rights’ (2014) 6 Jimma University Journal of Law, 1.

[74] Adopted 30 January 2007 by the AU Assembly.

[75] Fred Agwu, ‘The African Court of Justice and Human Rights: The Future of International Criminal Justice in Africa’ (2014) 6 Africa Review, 1.

 

 

A Critical Survey into The Gambia’s Tripartite Regimes, 1965 to date

By Jimmy Hendry Nzally, a staff member at the University of The Gambia (UTG) who has served in the University Relations Office since 2014. Jimmy Hendry Nzally is a first-year PhD researcher at Vrije Universiteit Brussel (VUB). His research is focusing on: ‘Religion, Gender, Media and Politics Under Yahya A.J.J. Jammeh’s Autocratic Rule, 1994 to 2017.’ Previous education includes a Bachelor’s in Development Studies from UTG and double Masters in African History and Linguistics and Literary Studies. Hence, he combines local knowledge with international training, as demonstrated in this article.

Abstract

This paper seeks to typically examine the three regimes of Dawda Kairaba Jawara, Yahya A.J.J Jammeh and recently elected President Adama Barrow. A tripartite reflection that aims at deconstructing The Gambia’s political developments cannot be possible without re-looking at the past elections. The December 2nd, 2016 presidential elections in The Gambia attracted unprecedented headlines around the world. Scholars are taking keen interest in the political mayhem of this tiny “Atlantic Sunny” country found in West Africa, in mainland Africa. They include interdisciplinary researchers in politics, gender studies, and migration, among other areas. One of the obvious reason is the symbolism that marks the defeat of an autocratic ruler through elections for a ‘New Gambia’. Understanding its historical trend and whether the new dispensation depicts continuity is hugely my interest. In so doing, my analyses are carved out of the new political dispensation in The Gambia, which brought about an abrupt end to autocratic rule in The Gambia after 52 painful years of nationhood. Whether the December 2016 change will be a restoration of democracy/civilian rule in The Gambia will remain a question for future debates/discourse. This article aims at steering such a debate by offering some critical reflections into The Gambia’s past regimes and current government as a new academic phenome for political study. I will attempt to offer critical reflections by exploring a histography of this tiny-strip by taking a closer look at the emergence of nationalism, independence struggle, and post and current affairs. This is done by digging into secondary, online and journalistic materials in the Gambian context. Such an approach might help provide an in-depth understanding of the politics and political developments in The Gambia.

A Brief Evolutionary Analysis: Political Background into The Gambia Independence Struggle

Understanding the politics and political developments in The Gambia is paramount to this study. Starting from the independence struggle down to the post-independence narratives goes to underscore its historiographical outlook. Found in West Africa, The Gambia is one of the smallest countries in mainland Africa, with a population of “less than 2 million people.” [1] Neighbouring Senegal that surrounds The Gambia on three sides (north, east, and south) except on the Atlantic Ocean, is of both geographical and colonial significance within the Senegambia (The Gambia and Senegal, mainly) region. In other words, these countries were divided by colonial experience between the French and British powers based on its geographical proximity. The Gambia and neighbouring Senegal’s “separate existence is rooted in the activities of British slave traders who, in 1618, established a fort at the mouth of the River Gambia, from which they gradually spread their commercial and, later, colonial rule upstream to establish the British protectorate of The Gambia.” [2] What binds these two countries together are the colonial legacies of separate colonial powers, trade, culture and geography.

The Gambia’s tiny geographical shape is because of colonialism under the British occupation. The area was first occupied by the Portuguese from 1455-1581; thereby relinquishing their occupation rights to the colonial British whose presence dated from 1587. [3] These periods marked the unavoidable remembrance of the bitter history of slavery and enslavement of black people (for example, the erection of James Island as a slave port), independence struggle (the father of Gambia nationalism, Edward Francis Small), the eventual gaining of independence (First Prime Minister and President, Dawda Kairaba Jawara) and until the present moment of a post-independence country. Under the British domination and absolute control was a system of administration called Indirect Rule System. [4] It basically allowed local rulers to control their areas, regions and subjects under British supervision. “In 1894 Britain proclaimed a protectorate over the entire area and divided the land into districts under commissioners who exercise authority over native rulers.”[5]

Such demarcation under the British authority was vested upon the hands of the local chiefs. In this regard, the western-educated people felt side-lined by the British to exploit the locals. This became a recipe for political disgruntlement by the elitists and has brought about the emergence of a political autonomy movements. The obvious questions are: What triggered political liberty movements in The Gambia? With whom? How did that lead to The Gambia’s independence? What form was independence achieved? To tackle these questions requires a thorough historical account of one of The Gambia’s most iconic pre-independence fighters: A household name among Gambians and in most discourse about The Gambia’s political history. Political emancipation started in the form of colonial antagonism and/or social mobilisation with the late Edward Francis Small.[6] In a broader context, the political revolutions around the world (in Africa) of the eighteenth and nineteenth centuries emphasised the “‘rights of man,’” [7] as the legitimate foundation for moral authority and physical independence. For political freedom fighters like Small, the need for emancipation seems “the obvious way for human freedom.” [8] This is what would shape his nationalism activities for the liberation of the people from colonial bondage. Small was a renowned activist, pan-Africanist, journalist and an enthusiastic trade unionist.

Edward Francis Small activities started as early as 1917 in Ballanghar, Kaur (MacCarthy Island Province) in the Central River Region for clashing with a local European trader (James Walker) and that lead to his detention and eventual dismissal in 1918. [9] While on a probationary mission as a young missionary-trainee, the European trader basically at the time entered into trade agreements [10] with the locals which was seen as exploitative and unfair treatment of Africans. Such horrific experience with the white colonialists triggered nationalism activities in the liberation struggle. Small – as the conscience against external white colonialist oppression and exploitation – ended up mobilising efforts as a founding member of The Gambia Native Delegation Union (GNDU) and consequently represented his native country, The Gambia, at the founding of the Nation Congress for British West Africa (NCDWA) in 1920. [11] This body was a mobilising force for the liberation of the African people. During that meeting, the NCBWA leaders pressed on with the agenda that educated Africans must unite in their efforts “across frontiers” [12]  towards the white colonialists. They saw the need for emancipation and a total control over their territories necessary. 

Therefore, nationalism and anticolonial agitation was front and centre of Small’s work, especially after his return from the NCBWA meeting that led to numerous movements and protests for the emancipation of the people of The Gambia. The Bathurst Trade Union in 1928 and the following year, organised the ever-general strike in the land. Other movements were the Rate Payers Association (RPA) in which the famous slogan was first used “No Taxation Without Representation” and the Cooperative Union for fight for the rights of famers, [13] to propagate the people’s message by way of revealing the odds of colonial powers. The versatile, energetic and ambitious Small made his mark in journalism too. On May 1922, he began his newspaper publication called The Gambia Outlook and Senegambia Reporter: “this was the first Gambian newspaper to be published since 1890s.” [14] As noted by one Gambia’s renown political writer and analyst, Abdoulaye Saine, in his book Culture and Traditions in the Gambia: “Small became the first African to be elected to the legislative council in 1947, with Chief, Tamba, Jammeh of Illiasa and R J.C Faye of Bathurst in the same year.” [15]. This gave him and his colleagues the opportunity to influence change as Gambians representatives in the house as legislators. However, Small’s efforts did lead to colonial retreat and the eventual need to fasten the process for political liberation of The Gambia, especially in the 1950s-60s onwards because nationalism was winning.

With the gradual decline of colonial rule and power over their colonial subjects, the need for the country’s independence was becoming hugely contested. This is because The Gambia was very small and more so, lacked the economic powers or resources to be independent. As recounted by Alhagi Singhateh, an elected member of Parliament in 1962, who was present in the independence talks, who mentioned in an interview that one of the main concerns: “was the fact that [The Gambia] lacked resources and there were not enough educated Gambians to take up positions[,] so they had to continue working with British officials until they had competent people to take over.” [16] Notwithstanding, The Gambia became independent, despite British and the United Nations’ recommendations to merge the area with Senegal [17] in exchange for Ivory Coast by the French.

In 1930, the British authorised the first representative institutions, the Bathurst Urban District Council and the Board of Health, and in 1959 convened the first of series of constitutional conferences that would eventually lead to independence for the country. Also in 1959, Dawda Kairaba Jawara, a Mandinka veterinary surgeon, formed the People’s Progressive Party. A constitutional conference produced a constitution in 1960, which after another conference in 1961 was amended in 1962. Yet another conference in 1964, produced a new constitution under which the colony became the independent country of The Gambia in 1965. Five years later, in 1970 it proclaimed itself a republic.[18]

While other African nations were fighting oppressively against white domination, The Gambia gained her independence through a peaceful dialogue. “Elsewhere in Africa, the winds for change sweeping the continent encountered entrenched colonial opposition. Until the eve of independence in the Belgian Congo, paternalistic colonial authorities banned political parties and provided few opportunities for higher education” [19]. In Portuguese colonies “[f]ree of democratic pressure, the dictatorial regime in Lisbon brutally suppressed independence movements in its African colonies, leading to protracted liberation struggles in Guinea-Bissau, Angola and Mozambique.” [20] The most brutal independence struggle took place in the French territory of Algeria. The French ignored the calls for independence from the native: “[…] leaders of the Algerian nationalism created a secret National Liberation Front in 1954, and forthwith launched their war of independence. It was a fierce and brutal war in which more than one million Algerians died and much of their country destroyed” [21] In Kenya “widespread anti-colonial violence occurred for four years against white settlers and British administration and its supporters.” [22] In the Democratic Republic of Congo at the time under the Belgium rulership of Leopold II. There were numerous attempts to use ethnic suppression to alter the movement for independence known as the Movement National Congolais (MNC) under the stewardship of Patrice Lumumba. As the leader and mastermind of the movement: “Lumumba was imprisoned by Belgium for his efforts. However, the independence fever was sweeping across Africa. Lumumba was released and invited to Belgium in 1960 to negotiate the terms of independence. The Congo obtained its independence from Belgium and Lumumba was elected Prime Minister in May 1960.”[23] 

The Gambia gained her independence in 1965, after the famous Marlborough House talks in London in 1962.[24] “Initially disputed over with the French, this territory subsequently was contested by African political movements seeking a transfer of power to an elected Gambian parliament. This was archived in 1965.”[25] The famous independence talks were observed to have included all relevant stakeholders. In summary, the delegation talks included members of the governing party, opposition leaders, and members of the civil society, workers’ representatives and the Commonwealth Secretary: “... six from the Colonial Office; three from the Foreign Office; two from the Home Office; and 14 from the Gambian government, including Sir John Paul, the Governor. Among the Gambia delegation on the government side were Prime Minister Dawda Jawara, Sheriff Sisay, S.M Dibba, J.C Faye, and others. The opposition delegation included P.S Njie, M.C Cham, I.M Garba Jahumpa, I.A.S Burang-John, and Kebba Foon.” [26]  It is therefore fair to argue the independence of The Gambia was negotiated in a very unprecedented-peaceful process.  This is totally different from other countries highlighted in the preceding paragraph.

In summary, this section gives a historical context into the independence of The Gambia. Fundamentally, how the activities of one man in the person of Edward Francis Small dared challenge colonialism through actions in journalism and as a trade unionist. Such a proliferation of nationalism impacted the struggle for political liberation. Therefore, the baton for independence struggle and liberation was passed on to the preceding leaders like Dawda Kairaba Jawara and company, despite scepticism and doubt as to whether a tiny republic like The Gambia could become independent.

Post-Independence Gambian Politics: A Closer Examination of Dawda Kairaba Jawara and Yahya A.J.J. Jammeh

In this section, I seek to correlate The Gambia’s two political regimes of the first and second republics. I will examine the first republic under Dawda Kairaba Jawara, the first Prime Minister who later became President, and his eventual military overthrow. How did Jawara consolidate himself into power? What led to his political demise and the rise of Jammeh? Here is a brief nutshell of the party history and the eventual Jawara emergence by Arlnold Hughes and David in their book, Political History of The Gambia, 1816 to 1994

Three small and highly personalized political parties, the United Party, the Gambia Democratic Party, and the Gambia Muslim Congress, came into being in Bathurst in the 1950s, but proved unable to retain their political domination once the provincial masses were enfranchised and set up their own political party. The Protectorate People’s Party (subsequently People’s Progressive Party [PPP]), under the leadership of Dawda Jawara, emerged as the largest political organization during the general elections of 1960 and 1962 and was accepted by the British as their successors.[27]

This early consolidation makes it easier for the Jawara party to stay long in power. In fact, most of the early liberators and their parties in Africa became father figures and eventually overstaying and ruling with an iron fist.[28] It now begs the question whether to characterise Jawara’s regime as an autocratic regime in comparison with Jammeh, which raises interesting arguments. As noted by Saine in his maiden book: The Paradox of Third-Wave Democratization in Africa The Gambia under AFPRC-APRC Rule, 1994–2000, there is a brief comparison of the Jawara and Jammeh governments. He argued that the overthrowing of Jammeh as a democratically elected president has two main bearings: “It brought about a halt to one of Africa’s longest surviving multiparty system” and an eventual end to the longest serving head of state in Africa at the time.” [29] For more than a quarter of a century there were multiparty democracies in Africa with the like of Botswana and Mauritius[30], as opposed to authoritarian and military regimes plaguing in other parts of the continent. Therefore, Africa “entered into a new era in which military leaders converted themselves into politicians and legitimised their rule through elections making it difficult to conduct multi-party politics.” [31] This was the situation in The Gambia under Jammeh for 22 years of his reign as president. This regime held Gambians and The Gambia to ransom for gross human rights violations with the sole aim of consolidating power against the masses or wish and aspiration of the people.[32]

The Gambia has largely been merited for sustaining a relatively very stable government, hold periodic elections, and maintaining peace since pre- and post-independence. This is important to underscore because most governments who assumed office in Africa in the late 1950s to early 1960s, witnessed post-independence African coups and/or counter coups. “Indeed, between 1990 and 2001, there were 50 attempted coups in Sub-Saharan Africa, of which 13 were successful, which represent a much lower rate of the success in comparison to earlier years, but no significant reduction in the African military’s propensity to launch coup attempts.”[33] It is fair to therefore argue that in postcolonial Africa, militarisation of governments became the order of the day. The Gambia is no exception to such military experience. It is not until in 1981 that the country faced its first military coup led by Kukkoi Samba Sanyang of the then Paramilitary Field Force, which failed to depose President Jawara due to swift military intervention from neighbouring Senegalese. [34] Such a swift brotherly intervention prompted the formation of the Senegambia Confederation in February 1st, 1982 and later ceased in September 30th, 1989 [35]. This and so many other attempts would therefore shape the politics and leadership of this tiny country.

Even though President Jawara was merited for leading The Gambia under the rule of law, there was growing discontentment with the governments realms, because his government had overstayed in power. The government failed to tackle corruption and ethnic dominance that brought about his eventual downfall. “By the mid-1980s-[90s] most [Gambians] had become completely disgusted with corruption and its destructive impacts on all aspects of life in the country.” [36] However, there had been attempts to curb corruption by President Jawara, by occasionally denouncing and periodically reshuffling the cabinet. Yet, the major criticism is that there have not been punitive measures in place. [37] Furthermore, President Jawara wanted to step down in his famous 1992 Mansa Konko speech. It did not materialise as he was compelled by party supporters to stand again for another term.  “In 1992, Jawara remained in office and won re-election (29 April) to his fifth term by over 58 percent of the vote, his party winning 25 of the 36 representatives seats.” [38] Such a move gave birth to one of Africa’s brutal autocratic leadership in the person of Yahya A.J.J. Jammeh. “The Jawara government was overthrown on July 22, 1994, in a bloodless coup by junior army officers, who installed Lt. Yahya Jammeh as chair of a five-member Armed Forces Ruling Provisional Ruling Party” [39] and subsequently renamed The Alliance for Patriotic Reorientation and Construction (APRC).[40] 

From the word ‘provisional’, it should have been a transitional takeover.[41] Consequently, a civilian government would have been in place shortly. However, that did not happen as result of both internal and external pressures mounted for the military group to relinquish power. “Following intense pressure from both within The Gambia and outside, the military-led government announced a timetable for transferring power to civilians in 1996 after review of the constitution, probes into the wealth of the public servants, and elections.”[42] Since the military were in absolute control, a referendum was organised for a new constitution to take effect same year on August 8th, 1996. “A decree barred Jawara, his vice president, and all former ministers of the People’s Progressive Party (PPP) from contesting the elections and from holding any political office.” [43] Jammeh’s eventual transition to civilian rule “ended on September 26, 1996, after twenty-six months of military rule. It culminated in the election of Jammeh as the second president of the second republic.” [44]

As he consolidates himself into power, his regime became increasingly isolated for gross human rights violations to occur, and increasingly disturbing isolation from in international community. Because of the unilateral powers he had, Jammeh declared The Gambia as an Islamic state, withdrew from the commonwealth, was in the process of withering from the International Criminal Court, threatened to behead gay people, insulted the largest ethnic group in The Gambia group i.e. Mandingo, expelling diplomats, forcedly insulting and attacking neighboring Senegal, and was constantly on national and international rows. [45] “He does not believe that he is doing anything wrong by staying on in power to the exclusion of everyone else. If Jawara stayed in power for 30 years, why not Yahya Jammeh? He has said these words repeatedly, despite his well-documented promise in the aftermath of the July 1994 coup to make sure that no president stays in power beyond ten years.” [46] In the Jammeh era, absolute control was the measure of leadership. It is in his proactive rights and ‘self-styled dictatorship’ as president to cease The Gambia and to run it anyhow he pleases without any form of internal or external influences.

All these issues, missteps, and ignorance of politics cost Jammeh everything to his empathic dismay. Across the country, Gambians felt deeply isolated internationally and threatened internally by ‘Jammehism,’ knowingly or unknowingly. In their quest for a ‘New Gambia’, Gambians including in the diasporas mobilized efforts locally and through online social media to propagate for a removal of Jammeh in the December 2016 election, in a country that Jammeh had vowed to rule for a “Billion Years” [47] with the help of Allah in religious terms. It is important to note that the diaspora is significant in The Gambia. The latest statics obtained from one of the newspapers in The Gambia states that: “Gambian migrants contributed 22% of the country’s [G]ross [D]omestic [P]roduct (GDP) in 2016.” [48] Therefore, being a huge contributor in the economy, family members in the diaspora threatened to stop sending money if their families failed to vote against Jammeh in support of the coalition team. “Hopes were [not] high for a peaceful transfer of power, with a crackdown on opposition leaders months before the polls, the banning of international observers or post-election demonstrations, and then the switching off of the internet.” [49] It is fair to assume that the signs and signals were there for the Jammeh government that things were not going right for him.

The Gambia Coalition History

The December 2nd, 2016 presidential election marked an important turning point in the history of the country. It ended 52 years of non-political change of government through the ballot box (1965-2016). Understanding democratic transition especially in Africa varies in experiences. In this section I will use two case studies to position The Gambia’s transition after 52 years of non-change of government through the ballot. I will focus mainly on the 1990s failed political transitions in Togo (dictatorship) and Benin (democratic) succeeded, respectively. Although similar case but different outcomes, the system change was triggered in these two countries by various key stakeholders, including party heads, civil society organisations and governments that decided to call for National Conferences to effect peaceful, smooth, democratic change of governments.

In the two countries mentioned above, it was done to affect a system change, thereby calling for fresh elections to win the trust and confidence of their subjects and for the restoration of international ties to mark a new beginning. In the case of “Benin’s system changes during that emergency national conference, however, conference delegates went far beyond their original mandate, dissolving the old organs of government, electing a transition prime minister and legislative body, and laying the groundwork for a meaningful political transition. It was called a “civilian coup d’état” and its striking success (coupled with a lack of bloodshed) prompted many franco-phone African countries to copy the model.” [50] “Studying the electoral coordination of opposition politicians in regions like in Africa is, at root, about understanding the institutionalizing of opposition as an integral part of democracy condition.” [51] With similar aim in Togo, the transition failed to get rid of the existing rot that seek to perpetuate itself in power. “Togo’s transition government struggled to keep the incumbent party in check, and endured several instances of violent military intervention that prevented them from completing their work as planned.” [52] In summary, Benin succeeded in offering a hope for her people, whereas Togo sustains and still cultivates one of Africa’s oppressive regime in place.

In The Gambia’s case, the transitional government of Jammeh in 1994 was a military takeover. Its goal of coming to power among many reasons was to fight corruption, discontent with Jawara’s regime of having Nigerian military forces and clearly inspired by the successes of a military coup in Sierra Leone under the rule of Strasser. [53] Therefore, Jammeh and company promised a system change and a more transparent and accountable government. The military government “charged that President Jawara had presided over a system that was riddled with corruption, and that as "soldiers with a difference" his party, the Alliance for Patriotic Re-orientation and Construction, would protect human rights and govern under the rule of law.” [54]. Unfortunately, the same fight of presumption levied against the Jawara regime also consumed Jammeh’s government. Within a brief period, the government of Jammeh started worsening their agenda ‘for a better Gambia’ leading to autocratic rule. Eventually, Jammeh became the president and subsequently killings, disappearances, and the rule of authoritarianism became the order of the day until his shockingly-unprepared defeat in 2016.

Understanding the defeat of Jammeh is indeed important. Many attempts all in the past failed to unseat Jammeh since his first electoral gain in 1996. “Coalition building is a distinct problem for the opposition in Africa’s inchoate democracies. The region’s ethically divided societies also happen to have patronage-based political systems in which electoral support is secured through the provision of money, favors, or goods.” [55] In addition, incumbency in Africa means absolute control over the politics, media, population and public institutions. “In the process, however, he had used those of the system to manipulate the minds and characters of Gambians technocrats, intellectuals, academicians, and politicians in a way had effectively subdued almost all talents into becoming his personal servants.” [56] This is what consolidated Jammeh and his imperiled government for indeed a very long, rough time. His propaganda tools had instilled fear of dissent, made it possible for the suppression of any form of internal movement using force in all spheres. Gambians became fearful of Jammeh that earned him the populism of a frim ruler throughout the bread and length of the country in The Gambia. Every day on national Television his face was always shown, his projects often displayed and while his executive rigidness of sacking, expelling and threats became sound bites for Gambians to be alarmed. [57] Therefore, suspiciousness leading to divide and rule widens in the streets, in schools, work places, at homes with the use of agents and vigilant groups.

Opposition leaders for far too long have always found it hard to come together. The first widely praised attempt was during the 2006 elections in which five opposition leaders gathered in 2003 in Atlanta [58] (Saine 2008: 64). These political parties were: The United Democratic Party (UDP), the Protectorate People's Party (PPP), the People's Democratic Organisation for Independence and Socialism (PDOIS), the National Reconciliation Party (NRP) and the National Democratic Action Movement (NDAM). There an agreement was reached to form a coalition front known as the National Alliance for Democracy and Development (NADD) in 2005.[59] However, such an effort was later frustrated after numerous attempts by the government of Jammeh to discredit and to weaken the movement by attacking opposition members including arrests. In fact, the most shocking news came from the resignation of the main opposition party leader, Ousainou Darboe of the United Democratic Party (UDP), who failed to attend the Atlanta meeting but chose to send a representative. [60] In what was poised to become a new beginning for opposition leaders, failed to move forward, thus gave the incumbent (Jammeh) a comfortable ride. In 2011 another coalition attempt called United Front Coalition (UFC) comprising three opposition parties namely PDOIS, NRP and The Gambia Party for Democracy and Progress (GPDP).[61]

After many years, attempts and failures of a new beginning for political opposition parties emerged.  Close to two and/or three months into the December presidential elections members of the opposition parties brokered yet another hopeful deal to form a collation and this time it worked.[62]  This brings us to the current transitional government in The Gambia under president Adama Barrow, a Real Estate Businessman. Before he could contest in the December 2016 election, he had to resigned as the Treasurer of the UDP: “[Barrow] was elected by 308 of 490 delegates at the convention held to elect a flagbearer of the opposition coalition.” [63] He came to power through a coalition team of seven parties and an independent candidate. The United Democratic Party (UDP), the People's Democratic Organisation for Independence and Socialism (PDOIS), the National Reconciliation Party (NRP), The Gambia Moral Congress (GMC), the National Convention Party (NCP), the People’s Progressive Party (PPP) and the Gambia Party for Democracy and Progress (GPDP) and Dr. Isatou Touray the only independent candidate/female candidate who is known for her strong activism as an anti-Female Genital Mutilation (FGM) and Women’s Rights Defender. By taking a closer at the coalition, this group became the biggest opposition coalition in the history of the country since gaining independence in 1965.

Barrow won the December president election with 43.34% of the vote against the incumbent Yahya A.J. Jammeh. “The loss of the election by President Jammeh and the emergence of Adama Barrow through coalition of parties represents the commitment of the political class and the people of [The] Gambia to transcend authoritarian rule and foster multiparty democracy.” [64] At the initial announcement of the results, he accepted the result, but later reneged on this, and Barrow was forced to flee first to Mali to attend a security summit and afterwards to neighbouring Senegal.[65] With such a move, it is fair to assume that at the time the international community were already snubbing Jammeh for the sake of weakening his prospects of legitimizing his retracting of the results. After many diplomatic efforts to persuade Jammeh to relinquish power peacefully, notably by the West African Body of the Economy Community for West African States (ECOWAS), a military intervention was likely the last option as tension brews. Barrow was inaugurated at the Gambian embassy in Senegal on 19 January 2017, and Jammeh was forced to leave the Gambia by the ECOMIG forces and go into exile on 21 January to Equatorial Guinea. Barrow returned to The Gambia on 26 January. [66]

President Adama Barrow: Coalition Agreement and the Prospects for a New Gambia

The election of Barrow brought about huge wave of optimism for the people of The Gambia from an autodidactic rule and the dignity/promise for a better Gambia through democratic elections. It goes to teach other autocratic nations and those oppressed that the system can change if people mobilise themselves through electoral means. But again, the opposition must be unified to unite the people in way that would drive them towards a common good. In The Gambia the defeat of Jammeh was celebrated:

A democratic transition can be a transformative experience, with crowds of demonstrators in the streets, protesters facing off against armed security forces, late night wrangling and jubilant celebrations marking the end of years of dictatorship. Successfully managing the intense uncertainty and fast pace of events requires a combination of skill, luck, and timing, as elites attempt to gauge the prevailing winds and win control of a political system without making the mistakes of their predecessors.[67]

The debate on whether president Barrow should after three years stay or resign is a major discussion in The Gambia. One of the leading voices in this campaign for the relinquishing of power within three years as agreed upon by coalition members is indeed Halifa Sallah of the People's Democratic Organisation for Independence and Socialism (PDOIS). He was the former spokesperson for the coalition government in power, while on the other side is Ousainou Darboe of the UDP the main opponent and advocate for five years as enshrined in The Gambia’s constitution. For Sallah, the agreement was for three years and not five years. What is indeed clear is the president agreed to a transitional government and that was campaign upon by the coalition members. [68] What Gambians are convinced about going into the elections and hoping for is that: “the Coalition presented a manifesto to the electorate as the basis of its mandate, and therefore the contours of their three-year program have already been broadly mapped out.”[69] It is in the interest of party coalition heads to heed an agreement made during the time of the election campaign as part of their agenda.

The question is: where is president Adama Barrow in these debates? During his acceptance, he was quoted by one of leading newspapers saying: “I am committed and loyal to the coalition and any other agreement that we all appended our signatures on.” [70] But his position seems to have been changing and Gambians are beginning to be divided by it. Another version of the President is that: ‘“People are bigger than parties,” he said, referring to their agreement, which was reached by parties ahead of the December election. “If people say I should go I will go. So, it is the people who will decide now”’ [71] This can be interpreted as the President not thinking of honouring the MoU – something observers are beginning to interpret as a sign of power greed, and morally wrong to fail his campaign promise and the coalition team that brought him in power.

Controversies regarding this MoU are seen a political issue among opposition members. Ousainou Darboe of the UDP was not among the people who agreed to the coalition agreement, because he was held in Mile 2 (notorious prison) by Jammeh. This was about Jammeh’s arrest and detention of some Darboe’s supporters and party leaders: “[...]19 people including the leader of the United Democratic Party (UDP) have been sentenced to three years’ imprisonment. They were found guilty on six counts relating to participating in unauthorised protests on 16 April 2016 in the outskirts of the capital Banjul.”[72] Upon his release from prison immediately after the elections, the issue to serve three or five became controversial. For opposition heads like Halifa Sallah, it is Darboe who has always been the major obstacle to forming a political coalition. Therefore, it only became successful while he was in prison. For Darboe, two main issues prompted his opposition of the three years: firstly, he alleged that the MoU was not signed but rather it was agreed upon only by members, and secondly the constitution states president Barrow must serve for five years.[73] Vehemently arguing for the three-years agreement to respected, the PDOIS doyen, Sallah noted that: “The presidency, he noted, has a “mandate for five years” but all those who took part in creating the coalition knew the conditionality before agreeing to participate in the presidential selection process.”[74] However, in my view, the government ought to remember this is a transitional government which then means it is supposed to serve for an interim period. Regardless, this government needs to deliver to the Gambian people, especially on transitional justice and the ongoing commission of inquiry into the financial mismanagement of the past regime of Jammeh.

Conclusion 

The Gambia has gone through a painful past. From 30 years of Dawda Kairaba Jawara and 22 years Yahya A.J.J. Jammeh reign to the present. The people of The Gambia have ushered in a new democratic dispensation that should be the lesson to carry on. With the new government in place, the need to establish rightful institutions under the rule of law is paramount.  It is therefore up to Barrow to do what is right for a better Gambia. If he fails, the coalition agreement that will bring about painful memories of the past two regimes of Jawara and Jammeh. These two governments had the opportunity to relinquish power but choose not to until their sudden, shocking, disgraceful overthrows. As stated earlier, whether it is the illegitimate coup of the 1994 and/or the heartbroken electoral defeat of 2016, to tidy the system towards a democratic path, Barrow and the people ought to choose from one of the systems: either like Benin for an overhaul of the past systems, or Togo, where the old system was retained thereby yielding another brutal dictatorship.

What must be questioned is the next three years after the coalition MoU agreement: How will the coalition choose to be remembered? Because Gambians expect a system change under the rule of law as opposed to the old system of autocracy. The coalition is expected to lay a democratic foundation for a ‘New Gambia’, which became a slogan during the campaign period. What will become of Barrow’s legacies? As he is expected to respect the coalition agreement for a transitional period and as a transitional government, is the so-called New Gambia a reality? Again, Gambians will not like to take yet another risk to have autocratic, failed and ill-driven politics/politicians in place. All these reflections/questions will define the political dispensation of that country. Therefore, scholars, historians, journalists, independent observers, the international community and the rest of Gambians and/or friends of The Gambia will have to reflect deeply moving forward.

Footnotes

[1] Samsudeen, Sarr. Coup D'etat by the Gambia National Army: July 22, 1994. (Xlibris, 2007) 20.

[2] Abdoulaye, Saine. The Paradox of Third-Wave Democratization in Africa The Gambia under AFPRC-APRC Rule, 1994–2008. (Rowman and Littlefield, 2009) 2.

[3] Oyekan, Owomoyela. The Columbia Guide to West African Literature in English Since 1945. (Columbia University Press, 2008) 11.

[4] Daniel, Don Nanjira. African Foreign Policy and Diplomacy from Antiquity to the 21st Century, Volume 1. (ABC-CLIO, 2010) 200.

[5]Saine (n 2)2. 

[6] Arnold, Hughes and David, Perfect. Political History of The Gambia, 1816 to 1994. (University of Rochester Press, 2016)78.

[7] John R, Pottenger. Political Theory of Liberation Theology: Toward a Convergence of Social Values and Social Science. (State University of New York Press, 1989) 85.

[8] Derek, Matravers; Jonathan, Pike, and Nigel, Warburton. Reading Political Philosophy: Machiavelli to Mill. (Routledge, 2006) 281.

[9] David, Perfect. Historical Dictionary of The Gambia. (Rowman and Littlefield Publishers, 2016) 402.

[10] Paul Tiyambe, Zeleza. A Modern Economic History of Africa: The Nineteenth Century. (East African Educational Publishers, 1993) 382.

[11] Perfect (n 9) 402.

[12] Basil, Davidson. Modern Africa: A Social and Political History. (Routledge, 2013) 36.

[13] Owomoyela (n 3) 11.

[14] Ibid.

[15] Abdoulaye, Saine. Culture and Customs of Gambia. (ABC-CLIO, 2012) 27.

[16] <http://www.thegambianow.gov.gm/index.php/news/265-marlborough-house-delegate-speaks-about-1962-independence-negotiation> accessed 5th March 2018.

[17] Saine (no 15) 2.

[18] Owomoyela (3) 12.

[19] Shillington, Kevin. Encyclopaedia of African History 3-Volume Set. (Fitzroy Dearborn and Francis, 2005) 466.

[20] Ibid.

[21] Festus Ugboaja, Ohaegbulam. Towards an Understanding of the African Experience from Historical and Contemporary Perspectives. (University Press of America, 1990) 204.

[22] Ibid., 202.

[23] Rocky M, Mizra. The Rise and Fall of the American Empire: A Re-Interpretation of History, Economics, and Philosophy: 1492-2016. (Trafford Publishing, 2007) 414.

[24] Hughes et al. (n 6)1.

[25] Ibid.

[26] Saine (n 15) 35.

[27] Hughes et al (n 6) 3.

[28] Ragies, Masiiwa and Kügler, Joachim. The Bible and Politics in Africa. (University of Bamberg Press, 2012) 158.

[29] Saine (no 2) 1.

[30] Alagi Yorro, Jallow. Delayed Democracy: How Press Freedom Collapsed in The Gambia. (AuthorHouse, 2012) 8.

[31] Ragies (n 28) 158.

[32] Baba Galleh, Jallow. Defying Dictatorship: Essays on Gambian Politics, 2012 – 2017. (CENMEDRA, 2007) XIV.

[33] Tyodzua, Atim. African Politics and Society in the 21st Century. (Author House, 2013) 99.

[34] Owomoyela (n 3)12.

[35] Lansford, Tom. Political Handbook of the World 2016-2017. (SAGE, 2017) 536-37.

[36] Mukum, Mbaku. Corruption in Africa: Causes, Consequences and Cleanups. Rownman and Littlefield Publishers, 2007.

[37] Perfect (n 9) 101-2.

[38] John E, Jessup. An Encyclopaedic Dictionary of Conflict and Conflict Resolution, 1945-1996. (Greenwood Press, 1998) 360.

[39] Ibid., 537.

[40] (Saine (n 2) 73.

[41] Ibid., 8.

[42] Owomoyela (n 3)12.

[43] Ibid.

[44] Abdoulaye, Saine. “The Gambia’s 2006 Presidential Election:  Change or Continuity?” [2008].” Cambridge University Press, 59, 62.

[45] Amadou Scattred, Janneh. Standing Up Against Injustice. (Xlibris, 2013) 92-93.

[46] Jallow (n 32) 59.

[47] Ibid., XVI.

[48]<http://thepoint.gm/africa/gambia/article/gambian-migrants-contribute-22-of-gdp> accessed 10th March 2018.

[49] <bbc.com, owl.www.bbc.com/news/world-africa-38186751> accessed 23rd March 2018.

[50] Jennifer C, Seely. The Legacies of Transition Government in Africa: The Case of Benin and Togo. (Palgrave Macmillan, 2009) 2.

[51] Arriola, Leonardo Rafael. Multi-Ethnic Coalitions in Africa: Business Financing of Opposition Election Campaigns. (Cambridge University Press, 2013) 21.

[52] Seely (n 50)2.

[53] Saine (n 2) 16.

[54] Saine (no 2) 134.

[55] Arriola (n 51) 22.

[56] Sarr (n 1) 10.

[57] Jallow (n 32) 35.

[58] Saine (n 44) 64.

[59] Saine (n 2) 119

[60] Ibid.

[61] <http://standard.gm/site/2016/08/24/uniting-gambian-opposition-return-2011-failed-ground/> accessed 10th march, 2018.

[62] Seedy, Drammeh. Perspectives on New Gambia. (CENMEDRA, 2018) 34.

[63]<http://thepoint.gm/africa/gambia/article/i-am-committed-and-loyal-to-the-coalition-agreement-coalition-flagbearer-says > accessed 10th March 2018.

[64] Samuel Ojo, Oloruntoba, and Toyin, Falola. The Palgrave Handbook of African Politics, Governance and Development. (Palgrave Macmillan, 2017) 430.

[65] Drammeh (n 62) 63.

[66] Ibid., 57.

[67] Seely (n 50) 2.

[68] (n 64) 59.

[69]<https://jollofnews.com/2017/01/18/gambia-the-three-year-programme-for-the-coalition/>accessed 10th March 2018.

[70] thepoint.gm (n 63).

[71] <http://standard.gm/site/2017/07/31/barrow-sparks-debate-coalition-mou/> accessed 10th March.

[72] < https://www.amnesty.org/en/latest/news/2016/07/gambia-prison-sentences-for-opposition-leaders-continues-downward-spiral-for-human-rights/> accessed 10th March 2018.

[73] <https://gambia.smbcgo.com/2017/08/20/gambias-coalition-mou-never-signed/> accessed 10th March 2018.

[74]<http://www.thegambiatimes.com/barrows-legacy-three-years-transition-government/>accessed 10th March 2018.

 

 

Electoral Reforms, Good Governance and Sustainable Development in Nigeria

By Hanafi, A. Hammed (PhD), Technical Aid Corps Volunteer Lecturer, School of Law, Kampala International University, Unganda. Email: 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

Electoral system of any given country plays a fundamental role in sustaining and shaping the political conduct of its citizens. The manner of conduct of election in a country goes a long way to determine the level of political culture, political participation, good governance and sustainable development in the country. The objectives of this study therefore are to examine electoral reforms, good governance and sustainable development to identify factors affecting electoral process and good governance, challenges for good governance and electoral processes and to discuss the need for electoral and institutional reforms in Nigeria. The study relies on primary and secondary sources of information such as the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Electoral Acts, textbooks, journals, conferences proceedings, workshops, newspapers and internet.  This study reveals that the process of appointing members of electoral body does not confer the requisite institutional autonomy on the electoral body. It also indicates that the framework for the electoral system in Nigeria is anchored on the Constitution of the federal Republic of Nigeria, 1999 and Electoral Acts. The study concludes that the electoral system must be reformed to have good governance and sustainable development and that there is need for the establishment of Electoral Offence Court.

Introduction

Election has become the most acceptable mechanism of leadership transition in any given democratic society. It is mostly the conduct of free, fair and credible electoral processes that justify a representative government to be referred to as democracy because the legitimate authority of government is derived from the consent of the governed.[1] The value of election to democracy is either enhanced or reduced, depending on the nature of the electoral system. Election refers to a process through which electorates choose their national, state or local leaders periodically to manage public affairs on their behalf in a democratic setting.[2] Under any democratic system, citizens who are legally qualified to exercise franchise are provided with opportunity to choose from political alternatives and make decisions that express their preference.[3] The imperativeness of election for good governance and sustainable development cannot be over-estimated because it remains the bedrock for democratic consolidation. Election that is characterised with massive and varying degrees of fraud and malpractice is a challenge to good governance, political stability and sustainable development. This is conceivably responsible for political instability, lack of good governance and absence of sustainable development in many African countries.[4] Conduct of elections has become a major prerequisite through which countries are rated and categorised. Free and fair elections go a long way in determining the continuous cohabiting of different ethnic groupings in any country with diverse cultures.[5]

Okechukwu aptly captured the concept of election as “the birth of the future, not the glories of the past.”[6] He stated this at 2011 People’s Democratic Party (PDP) Presidential convention during his inaugural speech after series of litigations that restrained him from parading himself as the national chairman.[7] Also, an election is defined as a process spanning a period of time and comprises a series of actions from registration of voters to polling.[8]

Elections take place based on certain accepted rules, procedures, legal and institutional frameworks which are distinct to individual countries in Africa. It is the combination of these that are referred to as electoral systems. The management and administration of election is the responsibility of the management body called Independent National Electoral Commission (INEC) in Nigeria.

The fundamental roles of elections in all democracies are as follows:

a. It is an instrument through which the voting public compels accountability from elected officials;

b. It confers moral authority on political leaders;

c. It enables citizens to make enlightened choice. Within this context, election is seen as a legitimizing institution, functioning to give elected leaders the wherewithal to govern;[9]

d. It accords the elected government domestic and international legitimacy as well as moral title to rule;

It provides a routine mechanism for recruiting and selecting individual to occupy seats in representative institutions;

f. It acts as agents of political socialization and political integration, providing a unifying focus for the country; and

g. It provides periodic opportunities to review the government’s record, assess its mandate and replace it with an alternative as was the case in Nigeria in March/April, 2015 general elections where Nigerians substituted almost all Peoples Democratic Party Candidates with that of All Progressive Congress.[10]

In the contemporary time, it is obviously difficult to hold elections that are free and fair which will eventually transform to good governance and sustainable development in Nigeria.[11] It is known from the past that elections have been source of political crisis and lack of good governance. Controversies surrounding elections have serious potential to undermine legitimacy and stability of democracy.[12] There could be serious repercussions on good governance if political leaders are unable to reach consensus on rules, regulations and procedures of political conduct and if Nigerian public therefore become alienated from the electoral process. The desire for electoral reforms among Nigerians and even by the   acknowledgment of late President Musa Yar’Adua that the Nigerian electoral system needs reform heralded the inauguration of Electoral Reform Committee set up by President Umaru Musa Yar’Adua and headed by a former Chief Justice, Mohammed Lawal Uwais. It was on this premise that President Yar’Adua made the issue of electoral reform an integral part of his seven-point agenda in 2010.[13]

Nigeria has witnessed five general elections in this fourth republic: 1999, 2003, 2007, 2011 and 2015.[14]  It is clear that power of incumbency has been the stumbling block to good governance and sustainable development in Nigeria. This electoral process is on the purview of INEC in Nigeria.[15] The high-handedness in manipulating the 1999, 2003, 2007 and 2011 electoral processes by PDP and other political parties in all the polling centres nationwide is alarming. This has led to political killings, religious bigotry, industrial actions, insecurity and other socio-economic malady.[16] The elections were rigged with bitterness and full of rancour, the then ruling party (PDP) acted with desperation to ensure the winner-takes-all syndrome with ‘do or die’ affairs in the interest of their party.[17] From what we experienced before and after the elections, this exercise moves Nigeria to a greater height. For instance, the governorship and senatorial elections that brought Governor Rochas Okoracha of Imo state and Senator Chris Ngige of Anambra Central senatorial district in 2011 are clear testimony that peoples’ votes can count in Nigerian elections against all odds.[18] The umpire body under the headship of Professor Attahiru Jega came with the reform to overhaul Nigeria electoral body and remove all the bad eggs especially the State Resident Commissioners who were bent on collecting ‘Fat-Brown-Envelops’ to pronounce their pay masters as winners of the elections to jeopardize good governance. The services of academic Professors were employed in all the polling centres nationwide as collation and returning officers to sanitise the rot in the electoral body. After the total cleansing of the electoral body, the losers in 2011 general elections especially from the opposition parties decided to plunge the nation in a collapsed state because of their parochial and personal interest.[19]

In other words, one could convincingly say that there is hyphen and buckle between the quality of an electoral process and the quality of governance that emanate from such an electoral process on one hand, as well as poor governance on the other hand, especially in a heterogeneous state like Nigeria. The study therefore examines electoral reforms and good governance and sustainable development, factors affecting electoral process and good governance in Nigeria and needs for elector reforms.

Electoral Reform, Good Governance and Sustainable Development

Electoral reform is a transformation of the whole gamut of election administration with a view to providing more opportunity for participation in an environment that is open, competitive and equitable.[20] It is the change in the electoral systems that enhance effectiveness and efficiency in election administration.[21] Electoral reform may serve the following:

a. To enhance impartiality of electoral body and other institutions involved in the administration of election like police and court;

b. To ensure inclusiveness, independence and financial autonomy of the electoral body; and

c. To guarantee transparency, broadened franchise and widened participation and integrity of the process.

Electoral reforms involved three domains and they are as follows:

a. Administrative Domain: This includes the nature of conduct of election which involved funding, ballot production, election time- table, recruiting and training of INEC and other ad hoc staff, voters’ registration, technological based voting and logistics.

b. Political Domain: The need to ensure that political atmosphere of election is conducive with open process that provides enabling ground for all participants in a manner that accommodates more citizens to participate without fear of intimidation.

c. Legal Domain: It relates to tinkering with the Electoral Act, Constitution and other laws governing the conduct of election to effect change in the INEC composition, to introduce diaspora franchise and to strengthen the disciplinary measure to adequately discipline the perpetual electoral offenders.[22]

Electoral system of any country plays a major role in sustaining and shaping the political behaviour of citizen.[23] The manner of conducting election in a country goes a long way to determine the level of political culture, political participation and good governance in the country. This assertion gives a clue to the importance of a good and healthy electoral system in a country.[24] Reforms only cannot translate to free, fair and credible elections, neither can free, fair and credible elections lead to good governance and sustainable development without appropriate, corresponding political will to implement reforms, punish offenders and ensure mechanisms that generally place constraints on the political actors to play according to the established electoral norms.[25]

The concept of governance dates back to the colonial period in Nigeria and it has been defined as the emergence and recognition of the principles, norms, rules and procedures that provide standards of acceptable public behaviour which are followed sufficiently to produce behavioural irregularities.[26] Governance has also been referred to the exercise of power through a country’s economic, social and political institutions in which institutions represent the organisational rules and routines, formal laws and informal norms that shape the incentives of public policy-makers, overseers and providers of public service.[27] Arowolo and Aluko defined governance as both processes and arrangements that ensure orderliness, acceptable standard of allocation of both human and material resources and a legal framework within which national behaviours are shaped and controlled.[28] Good governance became the criterion for assessment of government under the Constitution of the Federal Republic of Nigeria, 1999 (as amended),[29] due to the negative effect of military rule, the activities of civil society and the pressures of international financial institutions like the World Bank, International Monetary Fund and United Nations Development Projects.[30] Good governance is not at all a new phenomenon in Africa where the connection between individual virtue and good governance was widely assumed in the pre-modern times. All major religions in Africa: Islam, Christianity and Confucianism advocated for establishing a good and just society.[31] As also conceived in the framework of the New Partnership for Africa’s Development, growth and development cannot be achieved in the absence of good governance. Therefore, good governance in all its facets has been demonstrated to positively ensure the achievement of better growth rates and particularly through the building of institution in support of market.[32]

Good governance is encompassing and focusing on the capacity of the state and its institutions to engender necessary mechanisms to place considerable constraints on the behaviour of the policy makers and the individuals to ensure justice and guarantee individual rights through observance of the rule of law without discrimination, creating space for participation, tolerating divergent opinions and the ability of the state to transform the will of the people into concrete development.[33]

Electoral reforms remain the platform through which good governance is ensured. This is because citizens who vote during elections are psychologically fulfilled that the emerging political class in governance is theirs and not an imposition and this also guarantees full mobilisation of the citizenry towards the attainment of the desired national development. This implies that there is spirit of accountability and ownership that flows from the electorates to the political class in power. The celebrated Uwais Report of 2008, a report of the committee that was constituted by the then President Umaru Ya’radua, to inter alia, probe into the electoral mischief with a view to coming up with the solutions to electoral flaws in Nigeria, lucidly captures this when it insists that free, fair and credible elections are therefore a crucial requirement for good governance and sustainable development in any democracy. A plethora of factors have however been identified as hindering the conduct of free, fair and credible elections in Nigeria. One of these factors is the weak nature of the existing law to compel the political class to conduct themselves within the confines of legal framework and the collaborative attitude of government in power to ensure tenacity of office. Some of the inhibiting factors include: lack of independence of election management bodies and weak capacity of electoral bodies, the existence of weak democratic institutions and processes character of the Nigerian state, negative political culture and weak legal framework.[34]

Present democratisation processes in Nigeria suffer from several problems. Some of them are: it is being carried out within inefficient and non-viable rules; the process itself allows for manipulation of existing rules; and the counteracting agencies charged with policing and enforcement of the laws and those who work in those agencies are not properly constrained by the laws and INEC itself is not divested of this scenario and as such cannot be relied upon to play a role expected of an umpire since it is the party in power that appoints its officials and funds its operation.[35] However, INEC, under the leadership of Professor Attairu Jega proved this wrong because he conducted free and fair general elections in 2015 thereby ousted the incumbent President that appointed him.

Rules that regulate the activities of individuals within a society matter and are a major determinant of how individuals and groups behave. The behaviour of contestants, political parties and INEC can be analysed effectively only within the context of existing rules. Thus, without a closer understanding of a country’s law and institutions, any effort to analyse or understand political behaviour within that society would be futile.[36] Rules define how individuals can interact with each other, provide a means for the settlement of conflict and generally place constraints on individual behaviour.[37] The willingness of the participants to play according to the rules usually hinges on the ability of the state to ensure compliance without fear or favour.[38] Several attempts have been made in the past towards ensuring good governance and sustainable development through deepening democracy on a veritable platform of free, fair and credible elections. For instance, the Obasanjo's administration was noted for its selective judgment and flagrant disrespect and disobedience for the rule of law. The administration hunted its opponents with the fright of the Economic and Financial Crimes Commission (EFCC). During the period of 2003-2015, elections into political offices were secured by those who have the monopoly of weaponry and thuggery rather than for the electorates to determine who occupied what position.[39] The most important recommendation of Uwais Panel Report was jettisoned by the then President Ya’radua. The committee recommended the removal of power of appointment of INEC chairman from the President and placed such power in the Judiciary but the late President rejected the recommendation. He also discarded the recommendation that bothers on funding of INEC. The electoral reform must evolve from the people to ensure compliance.[40] The process of any reform should reflect a public choice. This will ensure generally acceptable electoral reform that is holistic and adequate to comprehensively address the challenges of electoral shenanigans in Nigeria.

The Electoral Act has made rules for the conduct of elections under the heading ‘procedure at election’ and they cover a wide range of activities or exercises which taken together will ground a wholesome election process that would culminate into a transparent and open election process that is fair and free.[41] Electoral laws in Nigeria are not comprehensive enough to address the fundamental problems due in part to the self-seeking tendencies of the spirit and the letter of the law and a seeming disconnect between the law and the prevailing realities.[42] Scholars have argued that the solutions to electoral problems and governance crisis in Nigeria is not multiplicity of reforms or amendment but to deeply investigate the reasons for failure of the existing laws with a view to evolving adequate understanding of the prevailing societal and attitudinal inadequacies that impaired the application of the law.[43]

Electoral Process: Challenges to Good Governance and Sustainable Development

Electoral process is a complex process that encompasses the good intentions and undesirable outcomes of election administration, particularly in emerging democracies where elections are often marred by electoral malpractices. In Nigeria, the truth is that the electoral process is immensely characterised by a culture of electoral malpractices.[44]  Electoral process relates to the entire cycle ranging from the provision of voter education to the dissolution of the National Assembly.[45] It refers to all the pre- and post-election activities without which an election is meaningless. These include the registration of political parties, review of voters’ register, delineation of constituencies, resolution of electoral disputes, return of elected representatives and swearing- in of elected representatives.[46] Any conduct that threatens the electoral process is a subversion of the peoples’ sovereignty.  Similarly, INEC deposes different phases of the electoral process as follows:

(a) Delimitation of electoral constituencies;

(b) Registration of voters;

(c) Notice of elections;

(d) Nomination of candidates;

(e) Election campaigns;

(f) Elections, announcement of results and completing tribunal sittings;

(g) Participation of other organisations; and

(h) Resolution of electoral conflicts from the participation and other organizations or groups.[47]

Electoral malpractices refer to illegalities committed by the officials responsible for the conduct of elections, political parties, groups or individuals with sinister intention to influence the outcome of the election in favour of a candidate or some candidates.[48]  Electoral malpractices lead to electoral violence which in every polity must be considered undesirable. Electoral process commences with the announcement of intention to conduct elections, till the elections are been won and invariably lost.[49] The quest for power in Nigeria among political actors has resorted to acts capable of breaching security and peace. An assessment of election history in Nigeria reveals that the quest for credible elections had been marred by political assassination, political thuggery, ballot snatching, intimidation and arson. Some of these challenges are:

Political Assassination

It has been observed that assassination of political opponents is a common approach for electoral victory by politicians in Nigeria. In this regard, Nigerian politicians tend to kill fellow politicians whom they perceive as threats to their political interests. Thus, the approach of general elections was usually characterized by the assassination of politicians for instance, Chief Bola Ige, an Alliance for Democracy (AD) chieftain who was murdered on December 24, 2001; Dr. Harry Marshall, a defunct All Peoples Party (APP) Chieftain and national vice chairman was murdered on March 5, 2003; Chief Aminasoaru Dikibo, murdered on February 6, 2004; Dr. Daramola, a gubernatorial aspirant in Ekiti state murdered on August 14, 2006; Ahmed Pategi, PDP state chairman, Kwara state murdered on August 15, 2002 and many others were assassinated.[50] The prevalence of such politically motivated murders indicates that opponents are vulnerable and easy preys depending on the extent to which their activities can be interpreted to truncate the political chances of the assailant.[51]

Intimidation

Politicians have often resorted to calculated acts of violence for intimidating opponents and other perceived obstacles to their interests. Intimidation often takes the form of orchestrating mobs of supporters and parading the residences or vicinities of a political opponent in a threatening manner. Such mobs wield lethal and non-lethal weapons ranging from guns, cutlasses, sticks to stones and bottles. However, in some cases, such mobs have been known to use weapons mainly to threaten opponents. For instance, the sporadic shooting at the PDP State Secretariat, Ilorin in September, 2002 by a mob of ANPP supporters[52] and heavy presence of security men at the residence of Senator Bola Ahmed Tinubu on the eve of 2015 general elections. In this regard, Nigerian politicians have been known to intimidate electoral officials. The experience of Madam Ayoka Adebayo, the Resident Electoral Officer during the Ekiti State gubernatorial bye-elections is a good example. Madam Ayoka resigned her appointment midway to the collation of election results. She cited threats to her life and that of her family by undisclosed persons who demanded that she should manipulate the election result in their favour.[53] Similarly, the director- general of the Ibrahim Badamosi Babangida Campaign organization, Chief Raymond Dokpesi alleged that his life and that of his family had been threatened by agents supporting the political aspiration of President Goodluck Jonathan.[54]

Ballot Snatching

Another common security challenge that characterises elections in Nigeria is ballot snatching. This has been the practice by some desperate politicians to invade polling booths and make away with ballot boxes. This is done when the politician concerned felt that the outcome of the election would not favour him.[55] Usually, in some cases, such snatched ballot boxes are destroyed; in some other occasions, the snatched ballot boxes find their way to INEC offices.

Arson

The history of elections in Nigeria is stuffed with frequent resorted to arson[56] by politicians. Some politicians have been known to burn houses, vehicles, or campaign offices of their political rivals. A good example of this was the bombing of the Ilorin office of the National Pilot, a Kwara State based newspaper belonging to late Dr Abubakar Olushola Saraki, a former ANPP chieftain, by suspected PDP sympathisers.[57] The politicians do in a desperate effort to cripple the logistical capabilities of their opponents.

Harassment of Election Observers

Harassment of election observers is informed by the desire to discourage evidences of rigging and associated acts of electoral misconducts from being recorded, published, or used as evidence at election tribunals. The foreign and local election observers have been physically assaulted by sympathisers of some politicians. Beating and detention of election observers during the 2003 and 2007 general elections is a case in hand.[58]

Factors Affecting Electoral Process in Nigeria

The electoral process has been marred with conflicts generated by ethnic chauvinism, sectional interest and religious division, malpractices, violence from the political class to outwit one another in pursuit of their parochial interest and this makes the process undemocratic. It is imperative at this juncture to examine some of the factors militating against electoral process and good governance and sustainable development. 

Ethnicity, Religious and Communal Conflicts

Since the colonial era, ethnic, regional and religious divisions constitute the form of expression of social cleavage in Nigeria. Political parties and candidates are representatives of an ethnic or religious group and voters support parties and candidates. The voting pattern in elections followed the pattern of ethnic and religious cleavages. At local and national levels, conflicts arising from communal identity which have major influence on electoral contest and political process.[59] It is difficult to indicate where communal conflicts end and where political conflicts begin in the Nigerian politics. It is difficult to separate communal crisis and political crisis because of the nature of Nigerian politics which is known as ‘prerenal politics.’[60] The system of prerenal politics spurs individuals, groups, communities and constituencies to capture state power to control state resources. The control of state power, the incumbents try to retain it using violence. In competing for power, individuals employ ethnic, communal and sentiments to out-manoeuvre their opponents. This drags an entire ethnic, regional or religious community into political competition which is squarely between political parties. People who live outside their state of origin are most times excluded from participating in governance and political life of their place of residence because they are perceived as non-indigenes.[61] In the past, attempts by ‘non-indigenes’ to resist their exclusion from politics and governance have resulted in highly contested elections and violence.[62] For instance, former governor of Plateau State, Joshual Dariye, favoured members of his own ethnic community. He manipulated their perceived grievances against the other group. These intense inter-group struggles between ‘indigene’ and ‘non-indigene’ communities, the politicians appeal to communal animosities and negative stereotypes, making it difficult for local conflicts to be resolved free, fair and transparent electoral competition to take place.[63]

Injustice and Cultural Impunity

The Nigerian legal system and law enforcement agencies failed to arrest, prosecute and convict offenders and victims of such violence normally receive little or no redress. Members of the security forces were implicated in violations of civil and political rights, including electoral violence.[64] Because of injustice, more than 11,000 people were killed in hundreds of separate outbreaks of politically motivated communal violence in Nigeria between 1999 and 2007.[65] The tendency of political actors to use violence in the electoral process is defined by the state’s capacity to enforce law and order. Regrettably, the capacity of Nigerian State to enforce law and order is undermined by the erosion of the states’ monopoly of the use of violence.[66]

Lack of Confidence in Electoral Tribunal 

The electoral justice system involves the prosecution of offenders and the resolution of petitions against election results. The belief by political actors that they cannot secure justice in election tribunal reduces their inclination to seek legal redress. The situation in Nigeria relates to Kenya’s experience during the 2007 election where Raila Odinga out-rightly rejected the advice by the United States that those alleging vote tampering may pursue legal remedies, maintaining that the election dispute was not a legal matter but a political conflict that required a political solution.[67] During Nigeria’s 2011 elections, the leading opposition candidate, Muhammadu Buhari, was reported by the National Television as saying that he will not lodge petition regarding the outcome of the election since his previous attempts at legally challenging election outcomes did not yield any meaningful result.[68] The credibility of Nigeria’s judiciary was badly dented by revelations emerging from a dispute between the two most senior judicial officers in the country – the former Chief Justice of the Federation (Justice Katsina-Alu) and the former President of the Court of Appeal (Justice Ayo Salami).[69] The disclosure by the then President of the Court of Appeal that the then Chief Justice of the Federation tried to influence the Sokoto State governorship election appeal indicates that the judiciary is prone to corruption. The allegation made many people to suspect that some other judgments given by the judiciary may have been influenced. This is perhaps why many politicians find it more rewarding to seek redress through violence rather than the judicial process.

Lack of Internal Democracy among Political Parties

Political parties served as major platform for democracy but the inability of many political parties in Nigeria to operate in a democratic manner introduced tension and violence in the electoral process. Political godfathers control the parties at local and national levels.[70] These godfathers select the delegates who elect party leaders and candidates through control of the delegates. They decide who gets the party’s nomination and leadership positions. The activities of these godfathers create so much dissatisfaction in the political process because they disregard formal procedures for party nomination of candidates. Some of the devices employed by these political godfathers to eliminate popular candidates from party primaries are:

  1. Declaration of a candidate as ‘consensus candidate’ and the insistence that those entitled to vote must support the candidate and that other aspirants must withdraw.
  2. The use of zoning to exclude unwanted candidates by moving the party zone for a position to an area where the excluded candidate is not local.
  3. The use of violence by thugs or security personnel to harass and intimidate candidates and supporters of candidates who oppose the godfathers.
  4. The use of money to bribe officials and induce voters to support candidates.[71]

Electoral Malpractice

The issue of election integrity is even more problematic in countries where ethnicity is salient in politics. In such societies, the victory or defeat of a candidate or party is perceived as defeat of an entire community. Any form of irregularities that would prevent a candidate from clinching electoral victory is opposed violently by the entire community.[72] The transparency and fairness of the electoral process, credibility of election authority, neutrality or partisanship of election management authority, lack of faith in the electoral body, non-independent of the electoral commission and rigging, play a major role in instigating. The integrity of elections can create frustration among stakeholders in the electoral process, this can transform to violence.[73]

Hatred Campaign

Some politicians were accused of using innuendoes to incite the public to violence.[74] The message on election or its outcome could trigger electoral violence.[75] The social media worsened the tensions created by religious and ethnic campaign by supporters of former President Jonathan and President Buhari. There were text messages that stir-up Muslims against President Jonathan. The anti-Jonathan rhetoric in the north hardened the stance of many southerners against Buhari, setting up inevitable clash between followers of Buhari and Jonathan. The local and foreign media have been accused of fanning the inflamed discourse by reporting partisan stories with sensational headlines. For instance, a sensational headline by The Nation Newspaper captioned ‘The North is against Jonathan.’[76] 

Power Sharing Problem

The institutional changes result to opposition and violence has been illustrated in Nigeria’s experience where the relegation of the power-sharing arrangement which guide the previous elections resulted in vigorous opposition and violence. The post-election violence in Nigeria, particularly, 2011general elections, reflected regional, religious divisions and simmering tensions over power sharing modalities after the demise of President Umaru Yar’Adua. Many Northerners believed that President Jonathan, a Christian and Southerner should have conceded his presidential bid to a Northerner Muslim in honour of the unwritten rotation of power between North and South.[77] Umaru Yar’Adua, a Northerner Muslim, succeeded President Olusegun Obasanjo, a Southerner Christian who ruled Nigeria for eight years from 1999 -2011. Unfortunately, Yar’Adua died in 2010, midway through his term, paving way for Vice President Goodluck Jonathan to emerge as president when doctrine of necessity was evoked to avoid vacuum in the presidency.[78] The proponents of power sharing insisted that Jonathan should not have contested for the presidency because the North had not completed its term. The 2011 post-election violence can therefore be an expression of the frustration caused by the failure of Muhammadu Buhari, a Northerner and Muslim to reclaim the North’s control of the presidency from President Jonathan.[79]

Importance of Electoral and Institutional Reforms 

The 2003 general elections were greeted with massive irregularities and the consequent legitimacy crisis. The 2007 general elections were also conducted within the provisions of the 1999 Constitution and Electoral Act, 2006. The elections were generally condemned both locally and internationally. Both local and international observers agreed that the elections did not meet the standard of fairness and credibility. However, the 2007 general elections presented an opportunity for both the government and the electoral bodies to restore public confidence in the election process. This opportunity was unfortunately misused by former President Obasanjo and INEC. While Obasanjo exploited his control of state administrative resources like using anti-graft agencies and the court to undermine the electoral ambition of opposition parties, INEC arbitrarily deployed its regulatory power to exclude certain candidates from the ballot papers.[80] The process that led to 2007 elections and their real conduct was massively flawed. Therefore, the result of the elections could not be considered as true wishes of the electorates.

The Transition Monitoring Group, a consortium of domestic observer groups reported that the elections were seriously marred by egregious irregularities and manipulations to the extent of not only compromising the integrity of the ballot in many states but also calling in question the reliability and validity of the results declared by INEC.[81] More so, the European Union Observers Mission documented that the 2007 elections were marred by very poor organisation, lack of transparency, widespread procedural inequalities, substantial evidence of fraud, widespread voter disenfranchisement at different stages of the process, lack of equal requirements for political parties and candidates and various incidence of electoral violence.[82] These uncomplimentary reports of election observer groups have been complemented by the spate of election reversals coming out of the various election tribunals across the country. In addition to these reports and tribunal’s verdicts, was the admission by the President Umaru Musa Yar’Adua who was the prime beneficiary of the trenchantly pilloried election that the elections that produced his presidency were not perfect and had lapses and shortcomings.[83]

Based on the above facts, it is apparent that Nigerian electoral system needs to be reformed. Therefore, setting the agenda for electoral reform in Nigeria should be a serious mission. Salient areas for reform in the Nigerian electoral system have been identified by the civil society organisations, election tribunal, opposition parties and elections monitoring groups. To accomplish the mission, below are the core areas calling for reform in the Nigerian electoral system.

Electoral Regime

The current model of parliamentary representation in Nigeria is the First-Fast-the-Post (FPTP) system in which the candidate with the simple plurality of the total votes emerges as the representative in a single-member constituency even if he does not command half of the total votes.[84] It is on this footing that stakeholders have been canvassing for the introduction of proportional representation model.[85] Apart from being more inclusive than FPTP system, it ensures representation for the minorities whose votes carry no electoral value under the majoritarian principle of FPTP regime. There is a direct relationship between votes and parliamentary seats under proportional system which allows for a minimal number of wasted votes.

Media Access

Access to media is fundamental in electoral competition because it affords political parties and candidates the opportunity to sell themselves to the electorates. State funded media in all democracies have public service duty to inform the electorates about election related issues such as the competing political parties, their candidates, programmes of the parties, salient campaign issues and other related matters. Electoral Act enjoins public to grant equal access to all political parties and candidates. The reality in Nigeria is that publicly funded media have grossly failed to give balanced or equitable coverage to parties and candidates.[86]

Access to government owned media both at federal and state levels always favour the ruling party/government and its candidates. A good example is the Nigerian Television Authority and the Federal Radio Cooperation of Nigeria that are under the direct control and supervision of the Minister of Information. The National Broadcasting Commission, the regulatory body charged with the responsibility of monitoring the electronic media to ensure balanced access, is itself not an autonomous institution because it also operates as a department in the Federal Ministry of Information. Apart from government owned media houses, some private owned media also followed the feet of state owned media. A good example is African Independent Television (AIT) in 2015 general elections which appeared like Peoples’ Democratic Party’s media.[87]  The reform on media access should focus on how to ensure operational and institutional autonomy for media as well as oversight of state media by civil society.

Diaspora Franchise

There has been intense argument on allowing Nigerians abroad to vote in elections in Nigeria. The debate centres on the disenfranchisement of every citizen of Nigeria by their location. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes provision for Nigerian electorates in Nigeria to vote and be voted for.[88] This has denied Nigerians in diaspora the opportunity to participate in leadership recruitment in their country. However, with the verdict of an Abuja High Court delivered on 27th January, 2009 in a suit filed by some Nigerians[89] resident abroad, they may soon begin to exercise their franchise in their countries of residence. According to the presiding judge, Justice Adamu Bello, since Nigerian nationals abroad have convinced the court that they are entitled to vote and to be voted for, it becomes the duty of INEC to put in place relevant mechanism to assist the plaintiffs to vote from abroad. The proposal for the extension of franchise to Nigerian citizens in the diaspora attracts strength from similar practice in advance democracies around the world. According to the 1985 amendment of the Federal Electoral Law in Germany for example, German national residents abroad have the right to participate in elections of their country.[90] There is a misgiving about the feasibility of such request for Nigerian abroad to vote and to be voted for because Nigeria still seems lacking the basic capacity to successfully conduct elections domestically.[91]

Independent Candidacy

The Constitution recognises only political parties as associations that can field candidates for elections in Nigeria[92] In other words, independent candidates are not allowed to contest elections under the current political dispensation in Nigeria. However, lack of internal democracy within the political parties has prompted many stakeholders to advocate for the inclusion of independent candidacy in the Nigerian electoral system. This advocacy becomes imperative because of undemocratic way candidates were imposed by powerful forces within these political parties to contest elections.[93] Furthermore, it will allow individuals with modicum of political integrity but who are not affiliated to or choose not to affiliate with any of the registered political parties to contest.

Composition of Electoral Management Body

One of the issues that need to be reformed in the electoral system in Nigeria is the composition of INEC. The process of appointing members of the electoral body both at the Federal and state levels does not confer the prerequisite autonomy on the selected body. The appointment of the chairman and other members of INEC were conferred on the president subject to the confirmation of the senate.[94] At the state level, governors are constitutionally empowered to appoint members of the State Independent Electoral Commission subject to the confirmation by Houses of Assembly.[95] 

Based on the undeveloped nature of political culture in Nigeria, this process cannot guarantee impartiality of the electoral body as members of the body tends to see themselves as appointees of the President/Governor and ipso facto, must endeavour to deliver victory to the party of the President/Governor.[96] The experience in Nigeria since 2003 till date general elections show that sitting presidents and governors have manipulated electoral management bodies to boost the electoral fortunes of their parties. It is suggested that political parties, the National Assembly and the public be allowed input in the selection process. 

Equally colossal is the funding of the electoral management bodies. The financing of electoral bodies is the responsibility of the executive arm of government both at federal and state levels. This gives room for structural dependence of electoral agencies on the president and governors respectively as the heads of executive. Apart from creating structural dependence, the process does not also guarantee operational efficiency for the election bodies. Proposal for electoral reforms should cover appointment and financing of electoral management bodies.[97] It is desirable to remove INEC from mercy of the executive arm of government in terms of funding. Specific provision should be made for the Commission to secure funds for its electoral activities from the consolidated revenue of the federation to avoid executive manoeuvre over the Commission.[98]

Campaign Finance

The role of money in any elections cannot be over-emphasised. It becomes dangerous when its use is not regulated in electoral process, especially in a political atmosphere where most the electorates are either credulous or uninformed. They live in rural areas with little or no formal education. It is on this note that the Electoral Act, 2010 (as amended) provides in Section 91 as follows:

(1) Election expenses shall not exceed the sum stipulate in subsection (20 – (7) of this section;

(2) The maximum election expenses to be incurred by a candidate at a Presidential election shall be one billion naira;

(3) The maximum election expenses to be incurred by a candidate at a Governorship election shall be two hundred million naira;

(4) The maximum election expenses to be incurred by a candidate at an election to the National Assembly shall be forty million naira;

(5) In the case of State Assembly Election the maximum amount of election expenses to be incurred shall be ten million naira;

(6) In the case of Chairmanship Election to an Area Council, the maximum amount of election expenses to be incurred shall be ten million naira; and

(7) In the case of Councillorship Election the maximum amount of election expenses to be incurred shall be one million naira.[99]

The political parties and stakeholders arbitrarily used money to corrupt electoral process thereby spent above the stipulated amount for various posts. It is gratifying to state here that general elections in 2003, 2007 and 2011 were characterised by open distribution of money. Some electorates while on queue changed their minds at the point of casting their votes because of financial inducement. Some state governors also use state resources to fund their respective political parties thereby making them god fathers of the political parties in their various states. No doubt, this is a dangerous trend for electoral system in Nigeria because it can dent the integrity of electoral process thereby undermining good governance.[100] It is therefore suggested that there should be thorough monitoring to ensure that the political parties and stakeholders spend within the limit and to further verify sources of the fund.

Penalty for Electoral Violence

Violence remains a permanent feature of electoral process in Nigeria. The tendency to rely on violence as a weapon of electoral competition is escalated by two major factors: The perception of state power by the governing elite as an end itself rather than a means to an end; and the immensity and ubiquity of state power and its exclusive control of the forces of coercion.[101]

The combined effects of these factors make state power attractive and thus political contest is reduced to warfare.[102] Electoral violence in Nigeria has two dimensions: Violence against political actors (politicians and electorates) and violence against election-related institutions (election management bodies and security agencies). These two dimensions manifested before, during and after 2003, 2007 and 2011 general elections. These elections witnessed pre-election assassinations, hijack of election materials, intimidation of political opponents and voters and attack on security personnel and on officials of election management body.[103] The reasons for the reoccurrence of violence in election contest is the mild penalty for perpetrators of electoral violence and the non-enforcement of the provisions of the Electoral Act on prohibition of the use of violence. Electoral Act provides for a maximum penalty fee of fifty thousand naira or imprisonment for a term of six months for an individual who violates its provisions on political violence. In the case of political party, such party is liable on conviction to a fine of two hundred and fifty thousand naira for the first offence and five hundred thousand naira for any subsequent violation.[104] Given the enormity of the damage that violence can unleash on the electoral process, this penalty is too mild and should not be expected to serve as a serious deterrent to anyone. There is therefore the need to establish Electoral Offence Tribunal to prescribe severe punishments for electoral violence to fumigate the electoral system in Nigeria.

Conclusion and Recommendations

Calling for electoral reform to ensure good governance and sustainable development shows that the current electoral system is defective. This paper has therefore examined the concepts of electoral reforms and good governance, the factors affecting electoral reforms and good governance. The study further discussed the need for electoral and institutional reforms to guarantee good governance.

The abuse of power of incumbency in Nigerian electoral process by those in power has been sustained because they have the state apparatus to control the election machineries. However, there was somehow a U-turn in the 2015 general elections where incumbent President, many governors, National Assembly members and State Houses of Assembly members were defeated at polls. Nevertheless, it is recommended that the chairman of INEC should be nominated by the National Judicial Council upon the recommendation of Council of State subject to the confirmation of the senate. Though, this paper is aware that it is this same NJC that appoints members of judicial officers who will serve as umpires in case of election petition but it will not be the same persons that serve in the NJC that will eventually sit in election tribunal. The principle of nemo judex in ca sasua could be evoked against them.

Most of the political parties in Nigeria do not have internal democracy. Instead, they prefer to impose candidates on their party members. This is more pronounced in 2011 general elections where most governorship candidates and members of National Assembly were imposed on their party members. This is clearly against the principle of rule of law which instils fairness in any political game. If this practice is not stemmed urgently, it may have negative impact on electoral system in Nigeria. Therefore, there should be internal democracy within the political parties.

The introduction of Card Reader by the immediate past chairman of INEC, Professor Attairu Jega is a wonderful contribution on his part not only to the development of the Nigerian electoral system but it will go a long way to instil confidence in Nigerian electorates that their votes will count and be counted and the candidates of their choice will eventually emerge as winners.[105] However, a lot equally must be done to provide back up, not only in terms of ‘Incidence Forms’ in all the polling centres in case of malfunctioning of the machines but effort should be made to ensure that the machines are not susceptible to hacking by desperate politicians as was alleged in some Nigerian states in South-South which forced the electoral ad hoc staff to make recourse to ‘incidence forms’ which is tantamount to electoral fraud.

There should be effective voters’ political education consciously designed to provide the Nigerian voters with the requisite knowledge and awareness capable of facilitating informed and rational political participation. This should be a continuous programme and should be focused on citizens’ obligations, electoral rights, and protection of votes and importance of accountable governance. The voter education programme should be jointly carried out by the state institutions and civil society organisations. Enlightenment campaign should be introduced on the negative effects of money politics. Also, political offices should be made less attractive. Politicians who indulged in money politics should be prosecuted before Electoral Offences Commission. 

Appropriate sanctions ranging from imprisonment without option of fine and permanent disqualification from contesting in the future elections should be imposed on any deviant politicians or political parties and INEC officials that are involved in or known to have aided any form of electoral malpractices should be decisively dealt with.

There are instances in the previous elections where candidates bought conscience of electorates to vote for them. Because of this, huge amount of money spent without any restraint on how much a candidate spent in election, sources of the money spent and how such money were spent.[106] Bench mark should be placed on campaign funds and source of such funds should be disclosed and to be subject to the public verification. This will serve as a mechanism to prevent money politics in Nigerian political domain.

In conclusion, though mindful of the Constitutional provision that Nigeria shall be a Federation consist of States and a Federal Capital territory,[107] there is compelling need to amend relevant law to abrogate State Independent Electoral Commissions. This is imperative because of experiences in the previous local government elections in various states of Nigeria where state executive governors almost without any exception deployed SIECs, the supposed umpires as one of the departments of their governments to do their bidding. In fact, the House committee on Electoral Matters had, after a thorough review of the conduct of elections by the various State Independent Electoral Commissions, concluded that no safeguards introduced would succeed in restricting the persistent destructive influence of states chief executives on SIECs and therefore recommended that INEC be strengthened in terms of financing, appointment of key personnel and logistics to take over SIECs and conduct all elections throughout the country.

Footnotes

[1] K. Animasahaun, Regime Character, Electoral Crisis and Prospects of Electoral Reform in Nigeria, 1 (1) Journal of   Nigeria Studies, (2010), 2. <http://www.unh.edu/nigeriastudies/articles/issue1/1-3Article.pdf>, accessed on 6 April 2015.

[2] K. Matlosa, Electoral Systems, Constitutionalism and Conflict Management in Southern Africa, 22. <acepproject.org/ero/regions/afric/regional-resources-africa/53.pdf/view>, ‘accessed on 6 April 2015.

[3] Animasahaun (n. 1).

[4] A. Dare and T. Lawal, Political Violence and Democratisation in Nigeria, 2 (1) Journal of Contemporary Politics, (), (2003-2007), 172-178.

[5] E. A, Dare, Electoral Reforms, Good Governance and Sustainable Development in Nigeria, 5 (12)   International Journal of Sustainable Development, (2013), 11-18 at 12. <papers.ssrn.com/8013/papers.cfm?abstract-id=233321711>, accessed on 6 April 2015.

[6] N. D. Okechukwu Electoral process and Challenges of Good Governance in Nigeria State (1999-2003), < http://www.rcmss.com/2015/jggsda/Electoral Process and Challenges of Good Governance in Nigerian State 91999-2003),>, accessed on 7 July, 2015.

[7] Ibid.

[8] Oke v. Mimiko (2) (2014) 1 N.W.L.R. (Part 1388)), 332-401 at 337.

[9] K. Schlozman and S. Verba, Sending them Message-Getting a Reply: Presidential Election and democratic Accountability,’Boston: Allen & Unwin, (2007), 3.

[10]K. Matlosa,(n. 2).

[11] L. Olu-Adeyemi, The challenges of democratic Governance in Nigeria, 3 (5), International Journal of Business and Social Science, (March, 2012), 167-171 at 170, <http://www.ijbssnet.com/journals/vol-3No5March-2012/19.pdf>, accessed on 6 April 2015.

[12] Ibid.

[13] A. Jega, Electoral Reforms in Nigeria: Prospects and Challenges, A Lecture Delivered by the Chairman Independent National Electoral Commission of Nigeria at the 7th International Electoral Affairs Symposium 2013 in Kuala Lumpur, Malaysia (2013), 2, <http://www.electoralnetwork.org/docs/international-electoralawards-2013/chairman-of-WEC-Nigeria-Prof-Attairu-Jega.pdf>, accessed on 6 April 2015.

[14] D. O, Chukwu, The Myths of Electoral Law in Nigeria, 3 (2) (African Development Review, (August, 2007), 5-6. Also see Ajayi Election Administration in Nigeria and Challenges of 2007 Elections, 2 (2), Medwell Journal, (2006) 142-151.

[15] E. Amucheazi and O. Ibeanu, Between the Theory and Practice of Democracy in Nigeria, London: Abbey Publisher Ltd, (2008).

[16]Ibid.

[17]J. Ayoade, Godfather Politics in Nigeria,’ in Money, Politics and Corruption in Nigeria, IFES Nigeria Election Support Programme, Abuja, (2008).

[18] See Vanguard Newspaper, (Nigeria, January 10, 20012).

[19] Ibid.

[20] D. Arowolo, Electoral Reforms, Good Governance and Sustainable Development in Nigeria, 5 (12) International Journal of Sustainable Development (2013),11-18 at 13.

[21]See Butler, D, ‘Electoral Systems,’ (Parliamentary Affairs, 57: 2004), 734-743.

[22] D. Arowolo, (n. 20).

 [23]See G. Okolo, Education and Political Stability in Nigeria, The Beacon, A Journal of Tai Solarin College of Education, Ijebu-ode, (2000) in I. P. Odion, Elections, Electoral reforms and post-Election Violence: Problems and Way Forward, (Vanguard, Nigeria), <http://community.vanguarsngr.com/forum/topics/elections-electoralreform>, accessed on 6 April 2015.

[24] I. P. Odion, Elections, Electoral reforms and post-Election Violence: Problems and Way Forward, Vanguard, Nigeria, <http://community.vanguarsngr.com/forum/topics/elections-electoralreform>, accessed on 6 April, 2015.

[25] D.Arowolo, (n. 20), 14.

[26] R.O. Keohane and J.S. Nye, Power Independence: World Politics in Transition, New York Boston: Little Brown (1989).

[27]  Olu-Adeyemi, (n. 11), 167.

[28] D. Arowolo and F. Aluko, Globalisation, Good Governance and Democracy: The Interface, 1(3), Academic leadership Online Journal, College of Education and technology, Fort Hays State University, (June, 2010), 1-6 at 1 in D. E. Arowolo, Electoral Reforms, Good Governance and Sustainable Development in Nigeria, 5 (12) International Journal of Sustainable Development (2013),11-18 at 13.

[29] See generally, Chapter II of Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[30] O. B. Nwabueze, Constitutional Policy in Africa, Vol. 4, in L. Olu-Adeyemi, supra, note 1, 167.

[31] H. A Hammed and K. K . Ibrahim-Eletu, An Appraisal of the New Partnership for Africa’s Development (NEPAD), Part 3, Ife Juris Review, Journal of Contemporary legal and Allied Issues, Department of Jurisprudence and Private Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria, September-December, (2014), 636-656 at 636.

[32] H. A. Hammed, The New partnership for Africa’s Development (NEPAD) and Sustainable Development in Africa, 4 (1) Journal of Public Law and Constitutional Practice, Department of Public Law, University of  Jos, (2012)142-162 at 145.

[33] D. Arowolo, (n. 20), 13.

[34] D. Arowolo and T. Lawal, Political Violence and Democratisation in Nigeria, 19, Journal of Contemporary Politics, (2008) 172-181.

[35] D. Arowolo, (n. 20).

[36]J.  Mbaku, Bureaucratic, Corruption and Policy Reform in Africa 19 (2), Journal of Social, Political and Economic Studies (1994), 149-175.

[37]J.  Atknson, K. Shughart, and F. William, Ethics, laws and the Outside Earnings of Politicians: The case of Alabama’s Legislator-Educator, 73 (2), Public Choice, (1992), 135-145.

[38] A. Lowenberg, A Post-Apartheid Constitution for South Africa: Lesson from Public Choice, 12 (2), Cato Journal, (1992), 297-319 in D. Arowolo, supra, note. 13, 14.

[39] Ibid.

[40] Ibid.

[41] Per Chukwuma-Eneh, J.S.C in Akeredolu v. Mimiko (2014) 1 N.W.L.R (Part 1388), 402-478 at 415.

[42] U. J. Ilo, Reform Without Change: An Appraisal of Electoral reform in Nigeria, Law and Human Rights, www.vanguardngr.com, accessed on 29 January 2013.

[43] K. Animashaun, (n. 1), 1-133.

[44] E. O. Ezeani, Electoral Malpractices in Nigeria General Elections, xii (1), Nigerian Journal of Public Administration and local Government (2004), 143-162 at 145.

[45] N. Elekwa, The Electoral Process in Nigeria: How to Make INEC Succeed, 2 (1), The Nigerian Electoral Journal, (2008), 3042.

[46] F.A. Akamare, S Government Made Essay, Lagos: Olu Abbey Modern Press, (2001).

[47] INEC, ‘Building Confidence in Electoral System,’ (Abuja: Independent National Electoral Commission, 2006).

[48]E. O.  Ezeani, (n. 44), 145.

[49] Reynolds el ta, Electoral System Design; New International IDEA Handbook, No 7, Stockholm; Institute Report, (2005), 5.

[50]E. Chubah, Politically Motivated Killing and Social Conflicts in Nigeria: Implication for Democratic Stability, in I. Mirian, (ed) Peace Studies and conflict Resolution in Nigeria: A Reader, Ibadan, Spectrum Book Ltd, (2009).

[51] A. S. Alanamu,   Violence and Politics in Nigeria (1999-2003):Evidences from Kwara State, in A. S.(ed) Issues in Political Violence in Nigeria, Ilorin,  Hamson Printing, (2005).

[52] Ibid.

[53] See N. Odebode , and A.  Oni, Fayemi: Justice at Last, Sunday Punch newspaper, Nigeria, (October 16,

2010).

[54]See I. Tyem, Federal Government after my Life.’ Sunday Sun Newspaper, Nigeria, (September, 2010).

[55] A. Nyongo, Election and Democratic Transition in Africa: Kenya Experience in the African Context, 2 (3) Nigerian Political Science Association News Letter, (1988).

[56] This refers to willful destruction of properties in order to advance a political cause. Also see Section 443 of the Nigerian Criminal Code.

[57] A. S. Alanamu, (n.51).

[58] T. Falola and J. Ihovbere, The Rise and fall of Nigerian Second Republic (1979-1983).  New York, Zed, (1985).

[59] N. D. Okechukwu, (n. 14).

[60] See J.  Richard, Democracy and Prependal Politics in Nigeria: The rise and Fall of the Second Republic. Ibadan, Spectrum, (1991).

[61] See P. Ostein, Jonah Jang and the Jasawa; Ethno-Religious-Conflict in Nigeria.’ <http://www.sharia-in-Africa.net/media/publications/ethno-religious-conflict-in-Nigeria>., accessed on 6 April 2015.

[62]N.  Orji, Responses of Electoral outcomes; The Aftermath of 2007 Election in Nigeria and Kenya, 9 (4) African and Asian Studies, (2011)  436-461.

[63] E. Onwudiwe,  and  C. Berwind-Dart, Breaking the Cycle of Electoral Violence in Nigeria,  Washington DC, United States Institute of Peace (2010)

[64]N. D. Okechukwu, (n. 14).

[65] C. Aniekwe and  J.  Kushie, Election Violence Situation Analysis: Identifying Hot Sports in the 2011 General Elections in Nigeria, Abuja, NAPEN, (2011),  18.

[66] R. Adewale, Violence in Citadel: The Menace of Street Cults in the Nigerian Universities, 14 (1), Nordic Journal of African Studies, (2005) 79-98.

[67] East African Standard Nairobi, (30 December 2007).

[68] Ibid.

[69] D. Abimboye, Anarchy in the Temple of Justice’ News Watch Magazine, Nigeria, (5 September, 2011).

[70] HRW, ‘Rivers and Blood: Gums, Oil and Power in Nigeria’s River State, (New York: Human Right Watch, 2005). Also See  Omobowale and Olutayo, ‘Chief Lamidi Adedibu and Patronage politics  in Nigeria(Journal of modern African 2007). Studies, 45 (3), 2007), 425- 446).

[71] J. Ibrahim, Nigerian 2011 Elections: Fitful Path to Democratic Citizenship, Washington DC: United States Institute of Peace, (2007) 5.

[72] N. Orji, Responses to Electoral Outcomes: Aftermath of 2007 Elections in Nigeria and Kenya, 9(4), African and Asian Studies (2010) 436-461.

[73] C. Barnes, Ethiopia; Socio-Political Assessment, A Report Commissioned by UN High Commissioner for Refugees, Status, Determination and Protection Information Section ,  (2006)., <http://www.unhcr.org/report/pdf/44f9d704.pdf >, accessed on 6 April 2015.

[74] A.Williams, Jonathan and Security Challenges,  The Guardian, 2a  (April, 2011).

[75]J. Campbell, Electoral Violence in Nigeria, (2010), <http://www.cfr.org/nigeria/electoral-violence-nigeria>, 6 April 2015. Also see Ofili, P, ‘Provocative Discourse and Violence in Nigeria’s 2011 Elections.’ (2011), 3, <http://www. African Portal.org/siles/defaults/files/Backgrounder20in%20Nigeria’s5202011%OEIelections>, accessed on 6 April 2015.

[76] O. Charles, Median Hail Nigerian President Goodluck Jonathan’s Win, African Review, (2011), <http://www.africareview.com/News/-979>, accessed on  6 April 2015.

[77] N. D. Okechukwu, (n. 6), 90.

[78] O.  Adeniyi, Power, Politics and Death:  Front-Row Account of Nigeria under the late President Yar’Adua. Lagos, Kachifo Limited, (2011) 218-235.

[79] N. D. Okechukwu, (n. 6), 91.

[80] , M. A. Animasahaun,  Civil Society and  Accountability in governance in Nigeria’s Fourth Republic, 6 (1), Ibadan journal of the social Sciences, (March, 2008).

[81] Transition Monitoring Group, “Final Report in Nigeria’s presidential Election.’ (2007), http://tmgnigeria.org/press.thm, in K. Animasahaun, (ed) Regime Character, Electoral Crisis and Prospects of Electoral Reform in Nigeria, 1(1), Journal of Nigeria Studies, (2010),11, <http://www.unh.edu/nigerianstudies/articles/issues/1-3Article.pdf>, ‘accessed on 6 April 2015.

[82] European Union, Election Observation Mission, Nigeria Final Report: Gubernatorial and State House of Assembly Elections and presidential and National Assembly Elections, Abuja, (August, 21, 2007)

[83] See President Yar’Adua’s Inaugural Speech of May 29, 2007.

[84]  K. Animasahaun, (n 1).

[85] Proportional representation is an electoral system which allocates parliamentary seats to parties according to their share of the national votes.

[86]  K. Animasahaun, (n 1), 16.

[87] E. Ojo, Media and Elections, Discussion Paper Presented at the Post- Election Conference on ‘2007 Election as the Way Forward’ Organised by IFES-Nigeria, Abuja, (August, 22-23, 2007).

[88] Section 77 (2) of the Constitution of the Fedral Republic of Nigeria 1999 (as amended).

[89] Some of them are Prof. Bolaji Aluko, Hon Hakeem Bello and Mr Uzoma Onyemachi.

[90] K. Animasahaun, (n. 1), 21.

[91] D. Arowolo, (n. 20).

[92] Section 221 of the Constitution of the Federral Republic of Nigeria 1999 (as amended).

  (as amended)

[93] K. Animasahaun, (n. 1), 18.

[94] Section 154 (1) Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[95] Ibid, section 198.

[96] D. Animasahaun, (n. 1), 13.

[97] Ibid.

[98] D. Etukudu,  Electoral Reforms in Nigeria, in Comments by Hon. Hamisu M. Shira at a public Hearing on the Electoral (Reform) Bill 2005 Held in Bauchi by the Senate Committee on Independent National Electoral Commission, (30th June, 2005, http://www.98.139-236.92/search/srpcache?p=Electoral+Reforms+and+soc., accessed on 6 April 2015.

[99] Section 91 of Electoral Act, 2010 (as amended).

[100] A. Dare and T. Lawal  (n. 4).

[101] Ibid.

[102] D. Animasahaun, (n. 1), 14.

[103] Ibid.

[104]Section 98 (2) of the Electoral Act, 2006 (as amended)

[105] Emphasis mine.

[106] Emphasis mine.

[107] Section 2 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

 

 

An Examination of the Doctrine of Implied and Inherent Power of the National Government and the Residual Power of State in a Federation: Two Doctrines in Perpetual Conflict

By Shittu A. Bello, Ph.D Faculty of Law, Leadcity University Ibadan, Dr Simon O. Abifarin, College of Law, Joseph Ayo Babalola, University Ikeji Arakeji, and N.O.A. Ijaiya, Faculty of Law Unilorin.

Abstract

This paper discusses the doctrine of implied power of the Congress of the United States of America vis-à-vis the residual power of states. It is globally accepted that in a federation, powers are distributed between the central or federal government and the component states or regions. In this power distribution, there is bound to be confusion, conflicts and ambiguity due to the doctrines of implied and inherent powers of the congress, which are antithetic to the residual powers of the states. This paper examines the residual powers of the states in a federation, the implied and inherent powers of the Congress, and how they are in perpetual conflict. We further question the applicability of the doctrines of implied and inherent powers to the National Assembly in Nigeria. The paper concludes by recommending a strict constructionist approach in construing the constitution on whether the implied or inherent powers should be assigned to the National Assembly in Nigeria.

Introduction

The form of government established in the constitution exhibits several important principles. The first is that sovereignty resides and stems from the people.[1] It may also be said that the government is a republic or representative democracy.[2] In Nigeria, we operate federalism and presidential democracy where the national government is exercising limited or enumerated powers. Almost all the powers are listed in the constitution.[3] The federal government has no power not granted by the Constitution or reasonably to be inferred therefrom. It is the State government that has the residual powers. Under this doctrine of residual powers of the States, the states are supposed to have broader and wider powers than the national government.

The power of the National government rests directly upon the people, as has been stated previously. The powers of the states’ governments, too, rest upon the people. Neither level of government, national nor state for its existence depends upon the other, but are equal partners in another sense.[4] This is the basic principle of federation. Despite the plane of equality upon which the national and state government exist the principle of national supremacy is observed between the two.[5] The supreme-law-of-land clause establishes this principle. The Constitution, laws and duties of the national government will prevail over the state constitutions or laws in case of conflict.[6] While this might seem to be quite an impairment of the sovereign equality of the states, it is the only possible working arrangement otherwise the legal situation in each state could be slightly different from that of other state what national law means would be subject to 36 different interpretations (or four different interpretations under the four regions).

Again, the Constitution being the principal law of a state cannot contain in detail all the rights, duties and obligations of citizens, government and her apparatus, therefore the doctrine of residual power emerges after exclusive and concurrent[7] legislative lists. The doctrines of implied powers and inherent powers of the National Assembly may also be helpful in certain circumstances where the Constitution is not explicit on an issue.[8] It is in the light of this that we intend to consider the issues of residual power of states in a federation like Nigeria, and its inconsistency with the doctrine of implied and inherent powers of National Assembly as operative in America.

Constitutional Basis of Legislative List in a Federation

According to Akande, this important subject of distribution of legislative powers between the Federal and State Governments is embodied in the second Schedule.[9] There are 68 numbered items and two items of matters both incidental and supplementary to those mentioned on the Exclusive List and 12 main items on the Concurrent List subdivided into 30 Subsidiaries.[10] The National Assembly may also make laws for the peace, order and good government of the Federation or any part thereof in respect to any matter that is included in the two legislative lists. In addition to this, it can also legislate for the Federal Capital Territory on any matter, irrespective of its inclusion in the Legislative List.[11] In this regard, therefore, the National Assembly has the same residual powers of Legislation with respect to the Federation Capital Territory as are granted to each State Legislature with respect to the State.[12]

In respect of matters on the Exclusive Legislative List, only the National Assembly may legislate. A State Legislature may legislate on matters not on Exclusive List. This means that the States can legislate on matters on the Concurrent Legislative List as well as on all other matters which are not on either of those two lists except where the matters are “incidental and supplementary” to the Exclusive Legislative List. This paper argues that such can be likened to implied and inherent powers of American Congress.[13]

In a way, the Concurrent Legislative List contains an element of exclusivity within itself for the state, as well as it being empowered to make laws with respect to antiquities and monuments. But the State House of Assembly may make laws for the State or any part thereof with respect to antiquities and monuments not so designated[14]. As such, once an antiquity in a State with the consent of the State has been designated a national monument, it falls within the exclusive control of the National Assembly even though it lies physically in the State. Without such designation, the National Assembly has no power to make laws on it. In any case where the concurrent Legislative item is so spread as to be covered by both the federal legislature and the state legislature and both make laws, the law made valid by the National Assembly shall prevail and the State law, to the extent of inconsistency, shall be void.[15]

The question of an inconsistency between Federal and State Law came up in the case of Girembe v. Bornu L.A.,[16] where the appellant had been convicted in the court of the Shehu of Bornu on a charge of culpable homicide punishable by death. The High Court of Northern Nigeria had confirmed the sentence, but the conviction was set aside by the Supreme Court because, while the record of the trial disclosed evidence of severe assault by the accused person upon the deceased shortly before his death, there has been no medical evidence before the court that the deceased died because of the injuries inflicted upon him.[17] The court considered it appropriate to order retrial[18] before the Northern Region High Court, and did so, having power to make such an order under section 20 of the Federal Supreme Court Act, 1960. The result would be the trial of the accused before the High Court in a situation not specified in section 185 of the Northern Region Criminal Procedure Code, which purported to define exhaustively the circumstances in which such trials could take place. It followed that the code, a Regional Law is inconsistent with a Federal Act. By virtue of the Constitution,[19] the Act prevailed. Various criteria for determining inconsistency between a Federal and State Legislation have been employed in other Federal Constitutions. In the Australian case of Australian Boot Trade Employer’s Federation v. Whybrow,[20] the view was expressed that a Commonwealth Law and a State Law are not inconsistent if it was possible to obey the State Law without disobeying Commonwealth Law. It must be mentioned that there is no Concurrent List in the Australian Constitution, just as there is none in the United States and Canada; the Constitution enumerates only the Exclusive powers of the Federal Legislature. In spite of that, it is provided that where a State Law is inconsistent with a Commonwealth Law, the latter prevails. As more clearly enunciated by Dixon J. in Victoria v. Commonwealth: -[21] “where a State Law is inconsistent with a Commonwealth Law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid[22]. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete enactment of the law governing a matter or set of rights and duties, then for a State Law to regulate or apply to the same matter or relation s regarded as a detraction from the full operation of the Commonwealth law and so is in consistent. Thus, if a legislature clearly shows its intention of “covering the field” (a doctrine well known in Australia and United State of America) that is a conclusive test of inconsistency.[23]

In contrast to the Nigerian method of detraction or the Australian and American methods, the Indian Constitution[24] provides a unique method. It has three distinct lists, one exclusive to the Union Parliament, one exclusive to the State and a third which is concurrent to both. Besides, only the Union Parliament can legislate on a matter not on any of the Lists. This is another method of indicating the superiority of the Union Parliament over State and is more indicative of a very strong-centred Federation. This later effect has been achieved in Nigeria by the placing of most of the important matters of government within the exclusive legislative competence of the Federation Legislature.[25] These two broad legislative powers of the federation has led to discontent and the current agitations for restructuring and devolution of powers.

Distribution of Legislative Power in a Federation

Exclusive Legislative List

These are the powers reserved exclusively for the central government: This means that only the central government can legislate on the two lists and when a State or region legislate on the exclusive list it can be declared null and void and unconstitutional.[26]

Concurrent List

These are where powers are shared jointly by both the central and regional/state government as stipulated in the constitution even though both governments can make laws on matters that falls under Concurrent List, the central is Supreme. This means where there is a Conflict of law made by both governments, that the law made by the central government is supreme and will super cede that of the regional/ State government.[27]

Residual List

These are the leftover power not included in either the exclusive or the concurrent list. The powers in the residual List are left for the regions/states. In some constitution, residual powers are exercised by both governments. Such matter in the residual list includes chieftaincy matters etc.[28] In some jurisdictions like the USA, there is also the implied power of the federal Legislature. 

The Implied Power Doctrine 

In America, almost immediately upon the beginning of the federal government an argument arose between the strict constructionists of the constitution and the loose constructionists. Alexander Hamitton wanted to establish government-owned bank. The strict constructionists led by Thomas Jefferson said that this was unconstitutional. The national government, possessed enumerated powers only, and establishing a bank was not one of them. The board constructionist contended that the national government could exercise the enumerated powers, into effect.[29]

The argument was by all odds the most important theoretical issue debated on the national scheme for thirty years after the founding of the government. The Supreme Court ruled upon it in 1819, in the important case of Mccullock V Maryland[30]. The court said in part, “Let the end be... within the Scope of the constitution and all means which are appropriate, which are plainly adapted to that end and which are not prohibited... are constitutional.[31]

The court said that the national government has not only enumerated powers but also powers which may be reasonably implied therefrom. The doctrine of implied power of the congress in America has been of major importance in expanding constitutionally the powers of the federal government. Possey, commenting on the implied power said, “Congress is not a legislative body with broad, vague powers, its powers are limited. Congress is told what powers it may exercise in section 8 article 1 of the constitution. Among the more important powers of the congress are its taxing power, regulation of interstate and foreign commerce, coinage of money, operation of the post office department, protection of patents as copyrights, maintenance of an army and a navy and declaring war.”[32]

On the implied power, he said, “matching the list of delighted powers is another List of powers which the constitution has specifically withheld from congress. Many of these are contained in section 8 of Article 1. But what of the powers neither expressly granted nor prohibited? Some powers in between the two categories may be exercised by the Congress. As detailed above in Mccullock V Maryland[33] the supreme court said, “Let the end... be within the scope of the constitution, and all means… plainly adapted to that end, which are not prohibited… are constitutional.” Thus, this paper argues that congress is not confined to the powers named in the constitution. Congress may also exercise powers which may be reasonably implied from the enumerated powers.[34]

Inherent Power of Congress 

Further to implied powers of the American Congress is the inherent powers espoused in the United States v Curtiss- Wright Export Corporation.[35] The Supreme Court allowed the concept of enumerated and implied powers to stay only in respect to Internal Affairs of the nation. Then power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties[36], if they had never been mentioned in the constitution, would have vested in the federal Government as necessary concomitants of nationality. Thus, in the field of foreign relations, the powers of the national government are inherent and are not limited.[37]

It is gratifying to note that the doctrine of implied and inherent powers may not be applicable to the Nigerian situation because the Constitution of Nigeria is more detailed that it enumerated exhaustively the powers of the National Assembly and states Houses of Assembly both in the exclusive and concurrent legislative lists. The only area of conflict between the National and State legislature is the exact limit and scope of residual power which contains everything not included in exclusive or concurrent legislative list. Instead of inherent power being given to the National Assembly in Nigeria, it is the Court that is giving that power.

Relevance and Essence of Inherent Power of Court

The inherent power of any court is the power which is itself essential to the very existence of the court as an institution and to its ability to function as such institution, namely, as an institution charged with the dispensation of justice. An inherent power must be inherent in the sense that it forms an essential and intrinsic element in the whole process of adjudication. It is innate in a court, and is not a subject of specific grant by the Constitution or by legislation. That is why inherent powers of the court cannot be taken away or abridged by legislation, for he who gave, he only can take away.[38]

Whether a Court can exist without Inherent Powers

A court cannot exist without inherent powers. The word ‘court’ importing adjudicatory capabilities in the entity to which it is applied at once conjures up the notion of inherent powers. That is the power to fulfil itself as the entity denoted by that word. A court must have some in-born power to act as a court and enable it to function as a court. A court without inherent powers can only be likened to a very good-looking wheel on a car that has no ball bearings or grease in the hub. Such a contraction may look but can never function properly as a wheel.[39]

Nature of Inherent Power of Court and whether Statutory Power can detract or derogate from it

Where legislation dealing with an inherent power of court exists, it is no longer an inherent power because it henceforth becomes a statutory power or constitutional power. Statutory power does not detract or derogate from or abridges the inherent power of a court. This is because it is inherent. A court exercising any such power exercises a statutory power or constitutional power only.[40] 

Incidental and Supplementary Power

Incidental is defined as happening or existing in connection with something else that is more important or subordinate to something of greater importance, having a minor role to play.[41] The Constitution makes provisions for incidental and supplementary power of the National Assembly in Nigeria.[42] Supplementary means in addition to already existing thing. The Schedule provides that: 

Where by this schedule the National Assembly is required to designate any matter or thing or to make any declaration, it may do so either by an Act of the National Assembly or by a resolution passed by both Houses of the National Assembly.[43]

In this Schedule, references to incidental or supplementary matters include, without prejudice to their generality, references to[44]

  • Offences;
  • The jurisdiction, powers, practice and procedure of Courts of Law; and
  • The acquisition and tenure of land.[45] 

It is not clear whether the National Assembly can now legislate by resolution rather than go through all the processes of law making with reference to when it is required to designate any matter. There are not many areas within the constitution where it is not specifically if an Act of the National Assembly is required, thus, this section will not affect important issues. But subsection 2[46], which lists certain specific incidental and supplementary matters, cannot be regarded as comprehensive. It has already been decided in another context admittedly that the use of the word `include’ implies the possibility of other matters.[47] This Schedule also empowers the National Assembly to make law by resolution or to make binding resolutions on persons and authorities in Nigeria.[48]

Residual Power in Nigerian Context

Nigeria operates a federal system of government. In it, power is shared among the three tiers of government, namely, federal, states and the local government areas. The Constitution provides for the roles of each of the federating states. In the Second Schedule of the 1999 Constitution, the federal government handles matter under the exclusive legislative list, shares roles with the federating states in concurrent list while states take care of matters under the residual list.[49] The question on the lips of stakeholders is: does the National Assembly now have the power to legislate on a matter that is under the residual list?

The Supreme Court in suit number SC. 340/2010 between the Attorney General of the Federation and Minister of Justice and Attorney General of Lagos and Commissioner for Justice had declared that the Federal Government lacks the Constitutional powers to make laws outside its legislative-competence, which are by implication residual matters meant for the State Assembly.[50] 

The apex court says the National Assembly cannot, in the, exercise of its powers to enact laws, take the liberty to confer power or authority on the Federal Government or any of its agencies to engage in matters, which ought to be the responsibility of State Government or its agencies.[51] The apex court, following the conflict between the federal government and Lagos State over registration of hotels and tourism establishments, evinced the argument about legality of such action.[52] 

By virtue of the Nigerian Tourism Development Corporation Act 1992, the Nigerian Tourism Development Corporation (NTDC) whose functions were to register, classify, grade and regulate Hotels, Motels, Hospitality and tourism enterprises, and tour operators was created.[53] But in 2003, the Lagos State Government passed into law the Hotel Licencing Law Cap H6 Laws of Lagos State of Nigeria 2003, which conflicted with the mandate of the Nigerian Tourism Development Corporation Act. 

In 2009, the Lagos State Government published a public notice that registration of hotels and tourism related establishments in Lagos State was the exclusive responsibility of the Lagos State Ministry of Tourism and intergovernmental relations. The law was subsequently amended by the Hotel Licensing (Amendment) Law, the Lagos State of Nigeria Official Gazette dated 20th July 2010.[54] Based on the foregoing, NTDC issued a public notice advising all operators of hotels, and companies alike to disregard the earlier notice issued by the Lagos State Government.

In this regard, the AGF on behalf of the Federal Government commenced an action at the Supreme Court against Lagos AG, by way of originating Summons challenging the validity of the laws enacted by the House of Assembly of Lagos State.[55] However, the Supreme Court ruled in favour of Lagos and held that the Law promulgated by Lagos State was not among items in the Exclusive and Concurrent lists but was rather among residual matters of the State.[56] Interestingly, a bill is now pending before the National Assembly called the Nigeria Tourism Development Authority (NTDA) ACT CAP N 137 LFN, 2004 9 (Repeal and Enactment) Bill, 2017 (SB. 429).[57] The Bill has gone through public hearing and is allegedly being pushed by NTDC.[58] Stakeholders and lawyers said the move is inappropriate. The executive secretary, Nigerian Hotel and catering institute (NHCI), Victor Kayode said the bill if enacted into law is vexatious and un-implementable.[59]

According to him, the proposed bill seeks to establish a new organization, which is beyond NTDC mandate as a government agency. Only the parent Ministry, he stated, could seek approval from the Executive council to establish a corporation within a corporation and seek legislative enactment, “It is also unclear, whether we are dealing with Tourism Development Corporation (NTC), Nigerian Tourism Development Corporation (NTDC) or Tourism Development Authority (NDA) as there are different documents speaking different things about the same bill,” he said that Section 15c of the bill seeks to regulate hotels and tourism, which will be indirect conflict with the Supreme Court judgement if passed.[60] It must be stressed here that National Assembly can make this law the Constitution must be amended which is not necessary, because of the already overbearing power of the federal government. 

Federalism and the Technique of ‘Listing’ as Catalysts for Constitutional Adjudication

According to Nweze,[61] the concept of federalism, though enveloped in a web of controversies,[62] is, unarguably, one of the principles which make up the doctrinal and philosophical pivot of constitutional Jurisprudence.[63] Indeed, it is not amenable to any precise definition, so much so that most leading constitutional Law scholars have opted for a description, rather than a definition,[64] of its essential principles.[65] Since, so much scholastic ink has been expended on them,[66] the elucidation of these principles does not need to detain us here.

For this reason, our presentation will only venture a dissertation on an aspect of the concept of federalism, namely, the technique of division of powers between the Central Government and the federating units.[67] Our preoccupation in this presentation, therefore, will be to explore the extent to which this technique has been employed in the Constitution of the Federal Republic of Nigeria, 1999.[68] The presentation will, also, probe into the scheme evolved by the 1999 Constitution for abridging the frontiers of conflict. This is the philosophy of “Pragmatic Federalism”[69] which Bello, CJN, admirably captured in Attorney General of Bean State v. Attorney General of the Federation and Ors[70] thus:

It may be observed that although the framers of our Constitution enshrined therein the principles of division of powers between the Federation and the component states, they realised that absolute division of such powers would not achieve the purpose of the Constitution which is to promote the good governance and welfare of all persons in our country it seems to me the framers appreciated that mutual c-operation reciprocity and inter dependence between the Federal and state governments are essential in the promotion of  the laudable purpose of the Constitution.

In effect, the purport of this philosophy of the Law of federalism is that there is no clear and clean border or bifurcation between the Federal and State Governments in the field of cooperation and assistance flowing from the Federal Government to the State Governments.[71]

Dichotomy in Legislative Jurisdictions: An Overview

There is a striking convergence of juristic[72] and juridical[73] opinions to the effect that the evolution of the technique of dichotomy in legislative jurisdictions[74] between the Exclusive and Concurrent lists, which first featured in the 1954 Constitution[75], is a contrivance of Australian Constitutional jurisprudence. Although, scholars would appear to be unanimous that the evolution of this technique is for avoidance of conflicts,[76] the paradox of the Nigerian experience is that rather than fostering conflict avoidance, the technique of Legislative Lists has considerably catalysed what Professor Smithey has graphically described as the “Judicialisation of politics,” which occurs “when societal decision-making becomes more judicially oriented.”[77]

The 1999 Constitution adopts two approaches in specifying the powers of the Federation. First, it adopts a specific textual inclusion of certain matters in the Constitution.[78] Secondly, it perpetuates the technique of enumeration of powers in two legislative lists, the Exclusive legislative list[79] and Concurrent legislative list.[80] The epistemological context of the adjectival form “concurrent” must be clearly borne in mind here. The Supreme Court has endorsed, as correct, the definition of the word “concurrent” as “existing together.”[81] The court has equally approved the view that in the context of the Constitution, when a matter is said to be concurrent to the Federal and State Governments, it means that their powers in that respect exist side by side.

That, in effect, means that the powers of both governments in respect of the matter are co-existent, not mutually exclusive; the power of one does not exclude that of the other. Both governments can, in theory at least, act on the matter. However, their powers need not, necessarily, be co-extensive in the sense of extending over the entire field of the matter; they may co-exist only in respect of some aspects of it.[82]

The Exclusive legislative list[83] specifies 66 items. Item 67 is a provision incorporating reference to the matters provided for in the body of the Constitution. The last item, item 68, deals with “any matter incidental or supplementary, to any matter mentioned elsewhere m the list.”[84]

Paragraph 2, part, III of the second schedule is instructive as it elaborates on the “scope of incidental and supplemental matters.”[85] It provides that:

In this schedule, references to incidental and supplementary matters include, without prejudice to their generality, references to:

  • (a.) offences;
  • (b.) the jurisdiction, powers, practice and procedure of courts of law: and
  • (c.) the acquisition and tenure of land.

Although, the “impressive specificity” of the above list has been noted,[86] there was a demurrer[87] to the retention of the equivalent of item 67 which provides:

Any other matter with respect to which the National Assembly has power to make law in accordance with the provisions of this Constitution.

Voicing his opposition to item 70, Part 1 of the Second Schedule of the Draft Constitution, 1976/77, in pari materia with the above item, Dr. B. A. Adebisi contended that this provision:

leaves room for the emergence of an ubiquitous Federal Government which might spread itself too thing to be effective.[88]

He further deposed that this:

undesirable item... on the list robs the Nation of the main advantage which nominally accrues from the single exclusive list system, namely, clarity of legislative jurisdiction.[89]

Indeed, the question of the clarity of legislative jurisdictions in item 68 of the 1999 Constitution has, considerably, tasked two eminent panels of the Supreme Court. In Federal Republic of Nigeria v. Anache and Ors,[90] one of the questions referred to the Supreme Court was:

Whether the combined effect, of the provisions of sections 4 (2), 15 (5), items 60 (a) and 68 in part 1 of the second schedule and section 2 (a) of part [II of the Second schedule of the Constitution of the Federal Republic of Nigeria, 1999, confer powers on the National Assembly to make Laws for the peace, order, and good government of the Federal Republic of Nigeria with respect to offences arising from, connected with or pertaining to corrupt practices and abuse of power.[91]

Tobi JSC, speaking for the full court, answered in the affirmative. Uwaifo JSC also thought that since in the Ondo[92] case items 60 (a), 67 and 68 of part I of the second schedule and paragraph 2 (a) of part II of the second schedule to the 1999 Constitution were also there [was] nothing more to be said in respect of question 1.[93]

Now, in A G Undo v. A. G. Federation,[94] the same question of the clarity of legislative jurisdiction in item 68 had been vigorously canvassed before the court By an originating summons at the Supreme Court, for adjudication in its original jurisdiction, the plaintiff sued the first defendant the Attorney General of the Federation. It joined the other defendants as parties whose rights may be affected by the action. The following relief, inter alia was asked for: 

A determination of the question whether or not the Corrupt Practices and other Related Offences Act, 2000 is valid and in force as a Law enacted by the National Assembly and in force in every state of the Federal Republic of Nigeria (including Ondo State).[95]

Part of the contention of the plaintiff was that the Act was not in respect of a matter or matters either in the Exclusive legislative list or the Concurrent legislative list. In resolving the conflict, the Supreme Court conflated several provisions of the Constitution, including item 68 of the Exclusive legislative list in part 1 of the second schedule to the 1999 Constitution which lists the Exclusive legislative powers to include “Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”[96]

Arguments were canvassed by those in support of the Act that the National Assembly was empowered to enact it, by virtue of sections 4 (1), (2) and (3), relying on items 60 (a), 67 and 68 of the Exclusive list and paragraph 2 (a) of part III of the second schedule to the Constitution.[97] The court, held, inter alia, that the provisions of section 2 (a) of part III of the second schedule to the Constitution was enacted to expound the effect and the extent of the provision of item 68 of part 1 of the second schedule. According to the court, it is by that provision that offences may be enacted by the National Assembly if it is shown that such offences, as may be created, are incidental and supplementary to matters on which the National Assembly is vested with power to make laws.[98] Listen to Ogwuegbu JSC:

Item 68 is contained in the Exclusive legislative list. The reference to incidental and supplementary matters on the Exclusive legislative list underscores the well-established principle of law that every grant of power includes by implication all and other powers as are reasonably incidental thereto and not expressly excluded.[99]

The net effect of it all is that Dr. B. A. Adebisi's postulations underestimated the vigilance of the guardian of the Constitution, namely, the judiciary.[100] Thus, there is authority for the, Proposition that since “the legislative powers of the National Assembly being derivable from the Constitution are thus delimited by the provisions of the Constitution.”[101] This is the import of the decision in Attorney General of Bendel State v. Attorney General of the Federation.[102] 

More specifically, contrary to his fear that “an ubiquitous Federal Government” was bound to emerge, a survey of judicial pronouncements on the 1979 Constitution[103] reveals that the judiciary, upheld the supremacy of that Constitution. Hence, all efforts were made to tie legislative Dower to the legislative lists. In the words of Nnaemeka Agu, JSC in Military Governor of Ondo State v. Adewunmi:[104] “whereas the legislative powers of the Federal Government were under 1979 Constitution tied to the legislative lists (they were also) limited thereby…”[105]

The impregnable mandate of the judiciary in this regard derived from express constitutional empowerment. In this connection, it must be reiterated that the exercise of legislative powers was made subject to Judicial review.[106] More dramatically, it was constitutionally ordained that legislation purporting to oust the court's jurisdiction was not to be brooked.[107] Indeed, the Legislature was not only bound by the express limitations in the legislative lists the circumstances and procedure for enacting laws prescribed by the Constitution were to be obeyed. Thus, the litmus test for the validity of any law was set as the extent of its compliance with the constitutional provision for doing so.[108] In addition to procedural questions, legislation that were so manifestly and flagrantly ambitious that they were tantamount to a usurpation of executive functions were struck down as being unconstitutional.[109]

It is perhaps, appropriate to revisit an awkward development that reared its head under the 1979 Constitution. Whereas that Constitution (and in deed the 1999 Constitution) preserved the ‘inherent powers’ of the courts of law,[110] no such inherent powers were conceded to the Legislature and the Executive. The true position, therefore, under the 1979 Constitution was that powers exercised must be founded on a provision of the Constitution or on legislation founded on the Constitution.[111] Alas, certain Governors elected under that Constitution invented and purported to exercise inherent powers, neither derived from any constitutional warrant nor anchored on any legislative fiat. In a series of forensic contests, the courts greeted such exercise of power with unmistakable disapprobation. The instances are legion. Only a highlight is attempted here.

In Jideonwo & Ors v. Governor of Bendel State & Ors[112] the court struck down the exercise of the purported inherent power in the Governor, neither derived from the Constitution nor from Statute to suspend an elected local government council, remove its members, and revoke the appointment of the Chairman. In Orisakwe v. Governor of Imo State,[113] the court rejected the claim to exercise an inherent power to withdraw recognition from a traditional ruler without legal authority and without complying with the prescribed procedure under the law. The decision in Jideonwo v. Governor of Bendel State (supra) established the principle that neither the President nor a Governor could appoint a Minister of Commission without complying with the constitutional provision for such appointment. Where the Constitution has not created an office, it would be unconstitutional for either the President or a Governor to create such an office and attempt to invest it with constitutional imprimatur.[114] 

The story is even more heart-warming under the 1999 Constitution. In what evidently must rank as the most eloquent vindication of Smithey’s theory of “judicialisation of politics,” or in other words, the relevance of the judiciary in the shaping of politics,[115] the courts, particularly, the Supreme Court, have gallantly intervened in conflicts precipitated by divergent perceptions of the roles of different tiers of government under the legislative lists of the Constitution The list of cases is long.[116] Take the following examples:

In INEC v. Musa[117] the respondents, political associations, and other political associations, sought to be recognised as political parties as defined in the 1999 Constitution. Each of the respondents, along with the twenty-two other political associations, who were all plaintiffs at the trial court, applied to the first appellant for registration as political parties.

The National Assembly had enacted the Electoral Act, 2001[118], which prescribed the mode of the registration of political parties. Pursuant to the said Electoral Act, the first appellant issued guidelines for political associations wishing to be transformed into political parties. A time table for the registration or the recognition of political associations as political parties was also published. The respondents challenged these processes. The reaction of the Supreme Court, on appeal is very germane here. Listen to this: 

Section 1 (1) of the Constitution provides for the supremacy of the Constitution. By section 1 (3), if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall, to the extent of the inconsistency, be void. In the total package of the supremacy of the Constitution in this appeal are mainly sections 40 and 222. The provisions of chapter IV, in which section 40 is a part, are sacrosanct. The procedure for the amendment of the chapter is tedious and difficult as spelt out in section 9 (3) of the Constitution. Since section 40 vests in every person the right to freely associate with other persons and belong to any political party, an Act of the National Assembly or a guideline of the first appellant ambitiously trying to take away the rights guaranteed in the section cannot stand. The same applies to section 222. Since that section has provided for six conditions for a political association to be recognised or registered by the first appellant as a political party, neither National Assembly nor the first appellant can now enact any Act or make guidelines respectively detracting from the provision of section 222.[119]

This was how the apex court widened the canvass of the soapbox to accommodate more political gladiators. This Singular decision triggered off the registration of more political parties, bringing the total number of registered parties, at the time, to about thirty, perhaps, the largest in the continent of Africa! It cannot be otherwise for:

Plural democracy is enhanced by the opportunity for as many parties as satisfy the legal and constitutional requirements to contest elections… what is required is to have more players on the political scene to expand the scope for political expression.[120] 

This editorial opinion by the flagship of the Nigerian Press[121] was an affirmation that the judgement of the apex court was an invaluable building block in the political architecture of our fledgling democracy.

By some curious irony, the Electoral Act, though impugned as having “provided a model of an Act which qualifies for, but excels, in contravening the Constitution”[122] will always be remembered as one Act of the National Assembly that fecundated the resolution of the several breath-taking constitutional questions.

One of such questions was the cassus belli in A.G. Abia v. A. G. Federation[123]. The plaintiffs, the Governments of all thirty-six states of the Federation of Nigeria, sued the Attorney General of the Federation, claiming inter alia a declaration that no law enacted by the National Assembly could validly increase or, otherwise, alter the tenure of office of elected officers or Councillors of Local Government Councils in Nigeria except in relation to the Federal Capital Territory alone. 

The National Assembly enacted the Electoral Act, 2001. The Federal Government claimed to have acted in the belief that all the provisions contained in the Act were on matters with respect to Mirth the National Assembly was empowered to legislate for the peace, order and good government of the country.

The plaintiff’s case[124] was that a perusal of the provisions of the Act would reveal that they transgressed the legislative competence of the Federal Government; that the Act made serious incursions into the legislative and executive functions of the states.

The contention of the plaintiffs was that pursuant to section 4 (7) (a) of the 1999 Constitution, the House of Assembly of a state is empowered to make laws with respect to any matter not included in the Exclusive Legislative List. They further argued that subject to the powers conferred on the National Assembly by the provisions contained in the Concurrent Legislative List, all remaining or residual powers with respect to Local Government Councils are, subject to the Constitution, vested in a House of Assembly alone.[125] 

The implication of these arguments is that it is states that must be responsible for the tenure of members of the Local Government Councils. In consequence, only the House of Assembly alone has the power to prescribe, increase or otherwise alter the tenure of the elected officers or councillors of the Local Governments other than the Federal Capital Territory for which only the National Assembly could legislate. Now, the volatility of the situation at the time must be viewed from the context of the sociology of Nigerian Politics. The 1999 Constitution consecrated seven hundred and seventy-four Local Government Councils. That meant that the interests of seven hundred and seventy-four Chairmen, their Wives, descendants, and sundry political protégées were at stake!

When to these were added the countless members of Councillors in these Local Government Councils, the anxiety the Electoral Act generated could be appreciated. This was more so, when what Professor Richard Joseph calls “Prerenal Politics”[126] had become the mainstay of political jobbery! The Supreme Court found for the plaintiffs.[127] It was, indeed, a finding in favour of consolidating the democratic temperament after several years of military rule. Coming 818 days into the fourth experiment in democracy, the judgement successfully doused the palpable tension that had enveloped the arena of politics. As if to allay the fears of the vast array of elected functionaries in the Local Government Councils, the court declared ex cathedra:

The National Assembly has no power whatsoever under item 11 of the Concurrent Legislature List or indeed under any provision of the Constitution, to increase or alter the tenure of the elected Local Government Councils. Only the House of Assembly of a State has such power.[128]

These authoritative and weighty words emanating from the apex court were not lost on the addressees. The pronouncement was a psychological tonic for most politicians who were already securely twined by fear and anxiety! Just like most of the other decisions, this decision will always stand the apex court in good stead in the judgement of posterity! Indeed, a leading newspaper in Nigeria has already declared the Supreme Court the "peoples’ court.”[129]

The decision in A.G. Lagos State v. A.G. Federation & Ors[130] is remarkable for the fecundity of jurisprudential issues that flourished in it. The issues, inter alia, were: 

  • Whether urban and regional planning (or town planning) as well as the regulation of physical development in relation to any land in Lagos State are within the legislative and executive jurisdiction of the Federal Government. 
  • Whether Nigerian Urban and Regional Planning and Act (Decree No. 88) of 1992 is inconsistent with the provisions of section 4 of the 1999 Constitution and, therefore, unlawful, null and void and so on.[131]

The Supreme Court held inter alia that since the subject of town and regional planning is not in the Exclusive and Concurrent Legislative list of the 1999 Constitution, it is a residual matter.[132] Thus, only states could legislate on it. Section 20 of the 1999 Constitution, which the first defendant relied on in this case as enabling the National Assembly to enact a law on urban and regional planning, such as the Nigerian Urban and Regional Planning Act, to have effect throughout Nigeria, must be confined to pure matters of environment and not by extension to matters of pure town and regional planning. However, by virtue of sections 4 (4) (b) and 299 of the 1999 Constitution, the subject of town and regional planning, as far as the Federal Capital Territory IS concerned, is the residual matter for the National Assembly.[133]

Technique of Defining Concurrent Powers

An orthodox concurrent list itemises subject matters on which both the Central and State Governments are entitled to make laws simultaneously.[134] The 1999 Constitution departs from this technique. It instead, evolves a peculiar kind of concurrent list. There are at least four different techniques that are evident in the concurrent list adopted by the Constitution. In the first place, there is the technique of “mutually exclusive list”[135] in the concurrent list. Mutually exclusive legislative powers are vested in the Federal and State Governments within the concurrent list.[136] In all, there were twelve items in the concurrent list, however, the actual elaboration of these Items spans 30 paragraphs. Now, the techniques:

Mutually Exclusive Legislative Powers

The first instance is item A on Allocation of revenue. This item vests the National Assembly with the legislative power to make provisions for:

  • the division of public revenue
  • between the federation and the states
  • among the states of the Federation.[137]

On the other hand, by item A, legislative powers are vested on a State House of Assembly to: 'make provisions for grants or loans from and the imposition of charges upon any of the public funds of that state or the imposition of charges upon the revenue and assets of that state...'[138]

The effect of this provision can be better appreciated in the context of the following submission, which we subscribe to; that is to say: the authority of the state government can be interpreted as exclusive authority over a limited scope of the topic of national revenue, the state revenue being seen as merely a limited aspect part of the total subject matter of national revenue.[139]

Another illustrative example of this technique of mutually exclusive list in the concurrent list is the item on University, technology and post primary education. Here, the National Assembly is empowered to make laws for: The Federation or any part thereof with respect to University education, technological education or such professional education as may from time to time be designated by the National Assembly.

The power conferred above includes the “power to establish an institution for the purposes of University, post primary, technology or professional education.”[140] On its part, a State House of Assembly is vested with power to make laws for the state with respect to the establishment of an institution for purposes of University, technological or professional education.[141] Elaborating on the implication of this power sharing formula, Professor B. O. Nwabueze has pointed out that: the federal government has competence over the whole field of University, technological and professional education, including the establishment of institutions for the purpose, while the state governments may only establish institutions for University, professional or technological education.[142]

Exercising competence over the whole field of University education, for instance, implies that only the Federal Government, to the exclusion of the state governments, can make regulations relating to standards, mode of admissions, such questions like free education at the University level and so on.[143] As opposed to a typical concurrent list where the doctrine of covering the field applies in all its amplitude, the technique of mutually exclusive list is an obvious advantage in the reduction of legislative conflicts between the state and federal legislation on the same subject matter.[144]

Conditional Powers

The Concurrent list also employs the technique of power-sharing through the provision of conditional powers. The legislative devise used for this technique is the phrase “subject to”[145] In item C, paragraph 4 empowers the National Assembly to make laws for the Federation or any part thereof with respect to the archives and public records of the Federation. On the other hand, the power of the House of Assembly to make laws for the state or any part thereof with respect to archives and public records of the Government of the state is made subject to paragraph 4 above.[146]

In effect, the draftsman intended to subordinate the exercise of legislative power by a State House of Assembly to the exercise of legislative power by the National Assembly on the subject of archives and public records of the Federation. In other words, the breadth of exercise of power by the House of Assembly is to be determined by the provisions of paragraph 4. This is the net effect of the expression “subject to” in paragraph 5. The words “subject to” are words of art. In Tukur v. Government of Gongola State[147] Nnaemeka-Agu, JSC explained that: Whenever the expression (subject to) is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or subsection is ‘subject to’ shall govern, control and prevail over what follows in that section or subsection of the enactment.[148]

This paper argues that this dictum applies to the interpretation of paragraph 5 notwithstanding that the expression “subject to” is not used at the commencement of the section. In the latter case of Idehen v. Idehen,[149] Karibi-Whyte, JSC stated that: The phrase (subject to) has been constructed to render the provision to which it is subject conditional upon compliance with what is required in the provision referred to.[150]

The above interpretation applies with equal force to such items like item K. The National Assembly is empowered to make laws for the Federation or any part thereof with respect to trigonometrical, cadastral and topographical surveys. The power of a House of Assembly to make laws for a state, or any part thereof, with respect to trigonometrical, Cadastral and topographical surveys is expressly made subject to the power of the National Assembly to make laws over the subject matter.[151]

Technique of Action or In-Action

Another type of conditional authority which was associated with the 1979 Constitution: Where the power of one tier is made subject to the action or in-action of the other tier with regard to the legislative topic where there is seeming concurrence of authority[152] has also been perpetuated by the Concurrent list of the 1999 Constitution. Hence, with respect to the generation, transmission and distribution of electricity, the authority of a State House of Assembly can only be exercised in “areas not covered by a National grid system within that state”.[153] Now, in the first place, it is the exclusive authority of the National Assembly to make laws for “the promotion and establishment of a national grid.”[154] In this regard, it is the action or inaction of the National Assembly in promoting and establishing a national grid that dictates the extent of exercise of legislative power by a State House of Assembly.[155]

Exclusive and Residual Dichotomy in the Concurrent List

Like the 1979 Constitution, the Concurrent list in the 1999 Constitution employs the ‘Exclusive and residual' dichotomy within individual topical provisions.[156] This is achieved by circumscribing the authority of the National Assembly to exclusive subject matters, “leaving the residual powers on such topic to the state”.[157] Item J dealing with statistics clearly illustrates this technique. Here, the power invested on the National Assembly to exclusively legislate on statistics must relate to “any matter upon which the National Assembly has power to make law”.[158] The residual powers on the subject of “statistics” are conceded to the State House of Assembly in these words, to make laws for the state with respect to statistics and on any matter other than that referred to in paragraph 23 of this item.[159] A hint on the operation of this technique was also given in A. G. Lagos State v. A. G. Federation.[160] There, it was held that by section 4 (4) (a) of the 1999 Constitution, the National Assembly has powers to legislate on matters on any item in the Concurrent Legislative list as set out in the first column of part II of the second schedule to the Constitution to the extent prescribed in the second column.

Since under the items listed in the columns, there is no mention of urban and regional planning or physical development or control of land therein, it means that the National Assembly has no jurisdiction in this matter under the concurrent legislative list. It is, therefore, a residual matter for the states.[161] Knight Frank and Rutley (Nig) and Anor v. A. G. (Kano),[162] equally, gives a clue to this technique. The issue there was whether the Kano State Government acted ultra vires in entering into contract with the appellant to prepare a valuation list of rateable hereditaments in the municipal area of Kano. By a written agreement between the then Commissioner for Finance, Kano State, and the appellants, the latter were to prepare a valuation list of rateable hereditaments for the collection or property rates in certain parts of Kano State. Later, the Commissioner intimated the appellants of Government's intentions to rescind the contract. The reason for this action was that the valuation of hereditaments fell within the responsibility of Local Government of the state and not the State Government. The appellant then sued.[163]

The Supreme Court had the onerous responsibility of giving meaning to the near laconic provisions of the Constitution defining the functions of the Local Government. The court construed section 7 (5) and paragraph 1 (b) and (j) of the Fourth Schedule to the 1979 Constitution. It, insightfully, concluded, from this combined reading of these provisions, that the collection of rates on rateable hereditaments and the assessment of rates on privately owned houses were subjects within the responsibilities of Local Government Councils. Accordingly, it held that it was the Local Government of Kano State that possessed the power to assess, impose and collect rates on privately owned property. The conclusion is worth quoting in extension for the guidance of the appropriate authorities: There is no legislation which empowers Kano State Government to dabble in and interfere with the compilation of valuation list for the purpose of assessing or collecting rates on private properties in Kano State. Therefore, the Government acted ultra vires in entering into contract with the appellant to do what only the Local Government Councils were entitled to do under the constitution and the law.[164]

Conclusion

We have examined the distribution of legislative powers within Nigerian federation and observed that the Exclusive Legislative List is for the National Assembly while states and National Assembly can legislate on concurrent legislative list. The residual list which is not expressly stated in the Constitution is by convention reserved for the states. The list contains all matters not included in either the Exclusive or Concurrent Legislative list. It is equally observed that in Nigeria the National Assembly and the States’ Houses of Assembly have been having conflicts on legislation because either of them has been overstepping its legislative jurisdiction. The other very important issue noted in this paper is that the doctrine of implied and inherent powers of the National Assembly is not recognised in Nigeria although it is part and parcel of American Congress. Our observation is that the doctrine is in conflict with the residual power of states and will lead to further legislative conflicts between the states and National Assembly.

We must also stress that the doctrine of implied and inherent powers of Congress in America and the incidental and Supplementary matter in Nigerian Constitution are not the same. The purported attempt to make another NTDC (Nigerian Tourism Development Corporation) or NTA (Nigerian Tourism Authority) law without amending the constitution will be a futile exercise. The constitution must first be amended to increase the power of the National Assembly to cover hospitality and tourism before such a law can be validly make by the National Assembly. However, in view of the clamour for devolution of power in Nigeria, it is not advisable for the constitution to be amended to give more power to the centre. Rather, power should be dispersed or devolved on the states for a stable polity, and for states to have more power to generate revenue for sustenance and provision of infrastructure.

Footnotes

[1] Section 14 (2) of the 1999 Constitution of Nigeria AS Amended

[2] Section 1(2)

[3] Section n14(2)(c)

[4] R.B. Posey American Government Littlefield, Adams & Co New Jersey (1975) Although Nigerian federation is peculiar and does not conform to this principle thus the various agitations for restructuring.

[5] Section 1(1) of the 1999 Constitution of Nigeria as Amended

[6] Section 12

[7] Section 4(2) & (3) see part III supplemental and Interpretation second schedule to the 1999 Constitution of Nigeria

[8] R.B. Posey op cit

[9] Part I Second Schedule

[10] Part II Second Schedule

[11] Part I Second Schedule

[12] Jadesola Akande Introduction to Nigerian Constitution 1999

[13] Ibid

[14] Item 3B of Second Schedule

[15] Section 1 (3) of the 1999 Constitution o Nigeria (as amended)

[16] [1961] 1 All N.L.R. 469

[17] 1961 1 All NLR 469 at 470

[18] Ibid

[19] Section 64(4)

[20] (1914) 10 C.L.R. 266

[21] (1937) 58 C.L.R. 618, p. 630

[22] Ibid

[23] Jadesola Akande op cit

[24] Ibid

[25] Jadesola Akande op cit.

[26] R.B. Posey-American Government little field Adams & Co New Jersey 1974 p. 84

[27] Ibid

[28] Ibid

[29] Ibid

[30] 4 Wheaton 316 (1819)

[31] Ibid

[32] Ibid

[33] 4 Wheaton 316 (1819)

[34] Article 1 Section 8 (18) of 1789 Constitution of America as Amended

[35] 229 U.S. 304 (1936)

[36] R. B. Possey op cit

[37] Ibid

[38] Ogwuegbu v Agomuo & Ors (Supra)

[39] Ogwuegbu v Agomu o & Ors (Supra)

[40] Ogwuegbu v Agomuo & Ors (supra)

[41] Oxford Dictionary of Current English 12th Edition 2012

[42] Part III Second Schedule

[43] Section 1 of Part III Second Schedule

[44] Section 2 of part III Second Schedule

[45] Section 2 (a) (b) & (c) of Part III Second Schedule

[46] Section 2(2) Part III

[47] Jadesola Akande Introduction to Nigeria Constitution 1999. As Amended

[48] Section 1 of part III Second Schedule

[49] Second Schedule part I & II

[50] Attorney General of federation v Attorney General of Lagos state 2013 16 NWLR (pt 1380) 249

[51] Ibid

[52] The Supreme Court Judgement on Hotel licensing Regulation PWC Nigeria.typed.com>2013/7>the… accessed on 20-3-18

[53] Why federal Government can’t legislate on Hotels, Restaurant thenationonlineng.net>fed-gov-cant-le… accessed on 20-3-18

[54] Ibid

[55] Ibid

[56] Attorney General of Lagos State v Attorney General of federation 2013 No NWLR (pt 1300) 383

[57] Nigerian Tourism Development Corporation Bill: A Tide that carries only monetary waves African traveltimes.com>features accessed on 20-3-18

[58] Ibid

[59] Ibid

[60] Joseph Onyekwere it is unconstitutional for National Assembly to legislate on Residual list The Guardian 12 September 2017 p 32

[61] C.C. Nweze Constitutional Adjudication for Democratic Consolidation in Nigeria: The role of the Supreme Court being a paper delivered at 16th Justice Idigbe memorial lecture at faculty of law University of Benin on 8th November 2017

[62] See Olafisoye v. FRN (2004) 4 NWLR (pt 864) 580, 646-649; also, K.C.Wheare, “Federalism”, in International Encyclopaedia of Social Sciences (1968) vol. p. 33, see, also, Sobel Mogi, “The Problem of Federalism”, Williams Livingstone, “A Note on the Nature of federalism”, in Mackinson, (ed), Canadian federalism: Myth or Reality, p. 22, cited in Taiwo Osipitan, “Inter-Governmental Relations and the 1989 Constitution: Problems & Prospect”, in (1990) Jus Vol. 1 No. 2 p. 27 at p. 28 fn 12

[63] See, Ademola Popoola, “The Legislative Powers of the National Assembly: The Exclusive and Concurrent Lists,” in 1.A. Umezuike (ed) Democracy Beyond the Third Republic, (Enugu: fourth Dimension Publishing Co. Ltd, 1993) 65

[64] See, for example, FRN v. Anache (2004) 14 WRN 47 – 49; per Tobi JSC; also Glendening and Reeves, Pragmatic Federalism (2nd ed. 1984) p. 13 cited in Oyelowo O. Oyewo, “The Legislative Powers of the National Assembly: The Exclusive and Concurrent Legislative Lists”, in I.A. Umezulike (ed)Ibid p. 42 fn 2

[65] See, B.O. Nwabueze, Federalism in Nigeria under the Presidential Constitution (London: Sweet and Maxwell, 1983) 1. See, also Oyelowo O.Oyewo, art.cit, 42 fn 2

[66] See, the works cited in notes 18, 19, 20 and 21 (supra).

[67] The concept of “division of powers” has been described as “one of the greatest attributes or one of the bridges of federalism”, see, per Tobi JSC in Olafisoye v. FRN (supra, note 1) 669

[68] Throughout this presentation, the more convenient formula “1999 Constitution” shall be used

[69] See, Oyelowo O. Oyewo, art. Cit, 41

[70] {1983} 6 SC 8

[71] Per Tobi JSC in A.G. Lagos v. A.G. federation (2003) 12 NWLR (pt 833) 1,246

[72] See per Fatayi-Williams, CJN in A.G, Ogun State v. A.G. federation (1982) 2 FRN 4, 14

[73] B.O. Nwabueze, Federalism in Nigeria…op. cit. Chap 3

[74] It is useful to note that as Professor B.O. Nwabueze explained about the 1979 Constitution, the technique of division applies to both Legislative and Executive powers. With humility, we share his view that” [a]lthough the enumeration of matters is specifically for purposes of the exercise of legislative power, the division of executive power follows upon the same principle…” See B.O. Nwabueze, The Presidential Constitution of Nigeria (London: C. Hurst & Company in association with Nwamife Publishers, 1982) 54; also, AD v. P.S.I.E.C (2004) 10 NWLR (pt 880) 19,34, 45; Ojibara v. Governor of Kwara State (2004) 30 WRN 26, 60-61

[75] Ibid

[76] See, e.g. Jadesola Akande, “Constitutional Developments”, in T.A. Aguda (ed), The Challenge of the Nigerian Nation: An Examination of its legal Development 1960-1985 (Lagos: Heineman Educational Books Nigeria, Limited, 1985) p. 21; B.A. Susu, “Techniques of Power-sharing and the Concurrent List,” in (1992)JUS vol. 3 Nos. 4 & 5 p. 25; O. Orojo, “Intra-Governmental Relations under the Nigerian Constitution,” in I.A. Umezuike (ed) Towards the Stability of the Third Republic (Enugu: Fourth Dimension Pub. Co. Ltd., 1993) 154, 155; Abiola Ojo, Constitutional Law and Military Rule in Nigeria (Ibadan: Evans Brothers Nigeria Publishers Limited, 1987) 152; B.O. Nwabueze, The Presidential Constitution of Nigeria op. cit., 53.

[77] Amuwo, op cit 7

[78] Item 67, Part, Secod Schedule incorporates, by reference, the matters provided for in the body of the Constitution. For e.g. S.4 (Legislative Powers, generally); S. 7 (6)(a) Public revenue of local governments); S. * (Creation of States, boundary adjustment); S. 9 (altering the Constitution); S. 11 (Public Order & Public Security); S. 12 (Implementation of treaties); etc.

[79] Part 1, Second Schedule, 1999 Constitution. See, A.G. Lagos v. A.G. federation (2003) 12 NWLR (pt 833) 1

[80] Part II, Second Schedule, 1999 Constitution. See, also, Olafisoye v FRN (supra) 668-669

[81] AG. Lagos State v AG federation 2003 12 NWLR (part 833) p 114

[82] See, per Tobi JSC approvingly quoting and adopting the views of Professor B.O. Nwabueze, federalism in Nigeria, see, Olafisoye v. FRN (supra) 668-689

[83] Part I of Second Schedule

[84] Note the decision in Doherty v Balewa (1961) All NLR (reprint) 630; Akwule v. The Queen (1963) All NLR 191

[85] See, B.O. Nwabueze, The Presidential Constitution, Op. cit. 53

[86] See, B.A. Susu, art cit., 25

[87] B.Adebisi, “State Autonomy an financial development” in W.I.Ofonagoro et al (eds), The Great Debate (Lagos: Daily Times, Ltd) 215

[88] See, Ibid 215

[89] (2004) 14 WRN 1

[90] See, infra 85

[91] P. 86 paragraph 2

[92] See, Ibid

[93] (2002) 27 WRN; (2002) 9 NWLR (pt 772) 222

[94] See, Ibid. 468

[95] P. 468 Paragraph 4

[96] Section 2 Part III Second Schedule

[97] CC Nweze op cit

[98] Ibid 334-335

[99] C.C. Nweze, “The Judiciary; The Guardian of Democracy under the Constitution”,  in UNIZIK Law Journal Vol. 1 No. 3, 1

[100] See, Oyewolo Oyewo, art. Cit. 34

[101] (1982) 10 SC 1; also, A.G. Abia v. A.G. federation (supra); INEC v. Musa (supra)

[102] (1983) 3 NWLR (pt 83) 280 at 254. See also Oil Palm Co. v A.G. Bendel State (1981) 6 NCLR 344, 351

[103] Ibid

[104] On the evolution of judicial review, see, C.C. Nweze, “Judicial Sustainability of Constitutional Democracy in Nigeria: A Response to the Phonographic Theory of the Judicial function”, in E.S. Nwauche and f.I. Asogwa, (eds) Essays in Honour of Professor C.O. Okonkwo (SAN) (Port Harcourt: Jite Books, 2000) 221

[105] Ibid

[106] Section 4(8)

[107] See, par Fatayi-Williams CJN in A.G. Bendel State v. A.G. of the federation (981) 10 SC 1 at p. 33

[108] Adeniyi Adele & Ors v. Governor Lagos State & Ors (1982) 3 NCLR 698; Balogun & Ors v. A.G. Lagos State (1981) 1 NCLR 31 See, generally, A.G. Karibi Whyte, The Relevance of the Judiciary in the Polity- In Historical Perspective (Lagos: NIIA, 1987) p. 80 et seq

[109] Section 6 (6) (a) 1979 and 1999 Constitution

[110] Section 6 (6) (a) 1979 and 1999 Constitution

[111] (1981) 1 NCLR 4; also, Oleri v. Awhinawhi (1982) 3 NCLR 680

[112] (1982) 3 NCLR 743

[113] A.G. Bendel State v. Omonuwa (1982) 3 NCLR 472, 476; see, generally, A.G. Karibi-Whyte, op. cit 82

[114] C. Otakpor, “Assessing Democracy via Litigation” Book Review, in New Age (Lagos), Tues. Oct. 26, 2004, 33

[115] A.G. Abia v. A.G. federation (supra); A.G. federation v. A.G. Abia (No. 2)(2000) 6 NWLR(pt 764) 542; INEC v. Musa (supra); A.G. Lagos v. A.G. federation (2003) 12 NWLR (pt 833) 1; A.G. federation (2002) 9 NWLR (pt 972) 222; Olafisoye v. FRN (supra), A>G. Ogun v. A.G. federation (2002) 18 NWLR (pt 798) 232 and so on

[116] See, Ibid. 213-214

[117] 2003 AHRLR 192

[118] Electoral Act 2001 now amended as Electoral Act 2010

[119] See, The Guardian, Tues. Nov. 19, 2002, 12

[120] See, the submission of F.R.A. Williams, SAN, cited in A.G. Abia State v. A.G. Federation (supra) 402

[121] The Guardian 20-3-2001 P 40

[122] See, R.A. Joseph, Democracy and Prebendal Politics in Nigeria: The rise and fall of the Second Republic (Ibadan: Spectrum Books Ltd, 1991, 1999) 8

[123] 2006 6 NWLR (part 764) 542

[124] Ibid

[125] Ibid

[126] Ibid 401

[127] Ibid

[128] Educational Comment in This Day, loc. cit

[129] [2003[ 12 NWLR (pt 833) 1

[130] See, T. Osipitan, art. Cit 29

[131] Ibid

[132] Ibid

[133] Ibid

[134] See, T. Osipitan, loc. cit

[135] CC Nweze op cit

[136] See, for these and more, item A 1 (a) (i)-(iv)

[137] See, item A 2

[138] See, B.A. Susu, art. Cit. 26

[139] See, item L 27

[140] Item L 28

[141] Item L 29

[142] See, B.O. Nwabueze, The Presidential Constitution of Nigeria, op. cit. 53-54

[143] See, B.O. Nwabueze, “Reflections on the 1999 Constitution: A unitary Constitution for a federal System of Government” (Paper delivered at a seminar in Abuja organised by the ICJ 14-16 Feb. 2000) 9

[144] The Academic Controversy that has enveloped the extent of application of the doctrine in Nigeria is beyond the scope of this paper. For this debate, see, D.I.O. Ewelukwa, “The doctrine of covering the field”, in Nig. J.R. vol. 2 (1999) 30; B.O. Nwabueze, The Presidential Constitution, loc. Cit.; A.O. Popoola, “The Legislative Powers of the National Assembly…” art. Cit. 74. See, however, the following decisions, Lakanmi v. A.G. of the West (1971) UILR 201; A.G. Ogun State v. A.G. federation (supra) p. 13

[145] Section 1 Part II Second Schedule

[146] See, T. Osipitan, art.cit. 29

[147] Item C 5

[148] Ibid

[149] (1989) 4 NWLR (pt 117) 517 at 580

[150] Ibid

[151] [1991] 7 SCNJ (pt 11) 196

[152] Item K 25

[153] Item K 26

[154] See, B.A. Susu, art.cit.26

[155] Item f 14 (b)

[156] Item f 13 (e)

[157] See, generally, B.A. Susu, loc. cit

[158] See, generally, B.A. Susus, loc.cit

[159] See, B.A. Susu, loc.cit

[160] 2003 12 NWLR (pt 883) 12

[161] Item J. 23 (e)

[162] See, Ibid. 160-170

[163] Ibid

[164] (1998) 4 KLR (pt 62) 847

 

 

The Scope and Extent of the Immunity of Heads of State and Government under International Human Rights Law: A Brief Analysis of the House of Lords Judgement in the Pinochet Extradition Case

By Prof Dr Aboubacar Abdullah Senghore, Associate Professor of Comparative Law and Dean of the Faculty of Law at the University of The Gambia

Abstract

As international law evolves, heads of state that act with impunity and commit certain crimes while in power are no longer completely immune from prosecution. They can be held accountable for crimes that they committed while in power if they fall under the principle of universal jurisdiction. The primacy of international law should prevail in circumstances where human rights violations caused by crimes such as genocide, extra judicial executions, torture, war crimes, forced disappearances, genocide and crimes against humanity are committed to hold the perpetrators accountable for their actions. The Pinochet extradition case, which held that he was accountable for torture committed while he was a head of state, brings some hope that there is no immunity where the commission of high crimes cannot be linked to one’s position as a head of state. This milestone development in international law raises some optimism for the victims of human rights violations under some circumstances. As the “new Gambia” emerges, accountability for human rights violations discourse must occupy a prominent space, especially in the light of the Pinochet case.

Introduction: Nature of International Law of Human Rights

International law of human rights (ILHR) may be described as that branch of modern international law which is concerned with the protection of individuals and groups against violations by governments and other institutions, of their internationally recognised rights on one hand and with the promotion of these rights on the other.[1] Expressions like international human rights law, international protection of human rights and international bill of human rights are sometimes used to refer to this branch of the Law of Nations. The latter expression is however confined to major human rights treaties concluded at the level of the United Nations i.e. the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other subsidiary conventions dealing with human rights promotion and protection.[2] ILHR has, by virtue of its definition, significantly departed from the traditional attitude of international law which is usually defined as the law governing relations between nation states exclusively binding on them in their mutual intercourse.[3]

Although, the scope of the definition of international law was somewhat expanded after the first world war to include some of the newly created inter-governmental organisations deemed to deserve some or certain limited rights under international law, individual human beings were still excluded and not deemed to deserve international legal rights as such. Instead, they were said to be objects rather than subjects of international law. Furthermore, the Law of Nations was in its very nature, still inapplicable to the manner in which a state treated its own people as this was entirely within the state’s domestic jurisdiction.[4] Oppenhein indicated that individuals might, under certain circumstances, be conferred rights and imposed duties of international law.[5] At this point however, this paper concludes by saying that one of the most obvious weaknesses of modern international law today is that it addresses itself mainly to state institutions rather than individuals who make up or create and run these institutions.

It is worth mentioning at this juncture that international human rights law is just, like any other system of law that purports to regulate human conduct, a normative order in the sense that its rules stipulate what ought and ought not to happen. As one expert puts it, “not necessarily what will or will not happen.”[6] In other words, law is naturally unable to make things happen or to prevent them from happening. Rather, it provides guidelines for right things to happen in the right manner.

This branch of international law, also described as a primitive law in its early stage of development, intended to govern a society which, in its collective sense, is a primitive one possessing only a few centralised legislative, judicial and executive organs.[7] Thus, ILHR has the usual normative character of law and of legal rules. In other words, just as there is no guarantee that a law will be obeyed, neither does it follow that all offenders or violators of the law will be punished. In fact, the likelihood of punishing those who violate ILHR is more remote. Notwithstanding this weakness of international law, the fact must be recognized that the validity of law does not necessarily depend on its being obeyed or on whether sanctions will be applied in the event of any disobedience. Instead, a law is valid in the juridical sense, if the system recognises its source as competent.[8]

ILHR Application

Thus, it is against the interesting background of this very complex, highly exciting and rapidly developing international legal regime and its relationship with the national laws of various nations that the House of Lords, in November 1998 sat to consider the case of R v Bow Street Metropolitan Stipendiary Magistrate: Ex parte Pinochet Ugarte (No 3) ( Pinochet case) .[9] This case raises very difficult, complex and tricky questions for modern international law and human rights to convincingly settle before a national court.

The Pinochet Case

General Augusto Pinochet was the former military ruler of Chile who seized power in a bloody coup d’état in 1973 and ruled the South American country with an iron fist. Throughout his reign stretching form 11 September 1973 until 1990 when he finally handed over power to a democratically elected government, more than 4,000 people including many Spanish nationals living in Chile were allegedly either killed, tortured or they disappeared and are unaccounted for. Pinochet is accused of having committed serious crimes against humanity which include torture, hostage taking and genocide against his political opponents. Since the general abdicated power in 1990 several law suits were brought against him in Spain, Switzerland and in other European countries.

Prior to handing over power to civilian rule, Pinochet introduced a new constitution by which he became a senator for life and therefore immune from prosecution before Chilean courts. For this reason, law suits brought against him in Chile could not be pursued.

As for the court cases against him in Spain, the Spanish Supreme Court, apparently relying on the principle of universal jurisdiction over crimes against humanity and on the fact that Spanish citizens were among his alleged victims, ruled that it had jurisdiction to try Pinochet for torture, genocide and hostage taking – each of which is an offence under international law. [10]With all this, Chilean authorities would not extradite him to Spain to stand trial because he enjoyed blanket immunity in Chile, and most importantly the crimes he is accused of were committed on Chilean soil and should therefore be tried there and nowhere else. In October 1998, General Pinochet – apparently on permission of the British government – came to London for a medical check-up. Soon after his arrival, a Spanish magistrate issued as arrest warrant to the judicial authorities in Britain and asked for Pinochet to be extradited to Spain to stand trial. Thereupon, the general was arrested under Section 8(1) of the 1989 Extradition Act. Augusto Pinochet then challenged the validity of his arrest in a divisional court of the Queen’s Bench Division – Pinochet then claiming that he was entitled to immunity from prosecution in Britain.[11]

Analysing Pinochet

The law Lords therefore had to set themselves the difficult task of considering the following and other related challenges: The general Pinochet was a famous head of state still enjoying substantial immunities from criminal proceedings before national courts; That the general was not a citizen of the country that requested his extradition. He was a citizen of Chile but the kingdom of Spain sought for his extradition from a third-party jurisdiction; The crimes involved were committed on Chilean soil and not on the United Kingdom; The scope and extent of the official functions of a head of states in relation to his/her immunity needed to be defined; Whether the immunity of a former head of state/government should extend to crimes against humanity. In other words, the court had to decide whether crimes against humanity should out with the protection of a former Head of States’ immunity. What does English law say about the nature and status of the offences that general Pinochet was accused of committing? Also, and most importantly, whether acts of torture, hostage taking and genocide could under any circumstances be called official functions or public acts of a head state or government.[12]

The Court’s Judgement

The High Court in London, typically representing the dualist character of the British judicial system, quashed the arrest warrant against the general and ruled that as a former head of state Pinochet was immune from prosecution in the United Kingdom and therefore no extradition could be initiated against him. Thereafter, prosecution authorities both in Britain and Spain appealed to the House of Lords, the highest judicial body in the United Kingdom. In a majority decision of 3-2 the law Lords reversed the High Court’s ruling and held that general Pinochet was not entitled to immunity from criminal proceedings, including those of extradition and that he should therefore be extradited to Spain to face trial on charges of torture, hostage taking and other crimes against humanity. 

Significance of the Decision

This was a landmark decision by the law Lords, and the case has been one of the most difficult and most challenging cases of the modern times to five of the most senior judges in Britain during that period. This is because they had to cross over extremely difficult and complicated barriers before arriving at their respective conclusion. For example, Pinochet was a former Head of State, he was not a Spanish subject though Spain asked for his extradition, the crimes he is accused of were committed on Chilean soil, the scope of a Head of State’s official function had to be defined, and whether crimes against humanity should outweigh the protection of a former Head of State’s immunity. Furthermore, a determination of the nature of the offences the Pinochet was accused of committing under English Law was necessary, and whether acts of torture, hostage taking and genocide could under any circumstances be called official or public acts made by a Head of State. This was more difficult in this case, given that Pinochet was said to have ordered the commission of such acts in secret torture chambers in Santiago. A host of similar tricky legal obstacles also had to be cleared by the law Lords who knew very well that their decision could change the course of the relationship between international law and English Law, and that it could have a lasting impact on international law in general and ILHR particularly. Thus, the main question before the court was whether Pinochet was entitled to immunity as a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts alleged to have been committed while he was a Head of State. As such, reference was made to Sections 1 and 14 of the 1978 State Immunity Act, which offer absolute immunity to states and Head of State, and to Sections 2-11 of the same Act, which provide certain exceptions to the absolute immunity. For example, activities related to commercial transactions, certain contracts of employment, injuries to persons and property caused by acts or omissions in the United Kingdom.

In determining what may constitute as official acts in the exercise of a Head of State’s function, the House of Lords concluded that official functions of a Head of State cannot be defined by domestic law. Rather, it must be defined by international law and that acts of torture, hostage taking and genocide cannot be regarded as official functions of a head of state under international law because they are regarded as crimes under international law.[13]

The court seemed to hold the view that although international law does not provide any list detailing official functions of a Heads of State in official capacity and that the Law of Nations would recognise those functions as may be attributed to him as a Head of State by domestic law – this must be subject to the rules of customary international law. Thus, the Law of Nations neither customary nor treaty rules recognise that it is one of the specific functions of a Head of State that he should commit torture, genocide, hostage taking or any other crime against humanity.

Lord Slynn, though he led the minority opinion, appeared to have recognised the dictum established by Lord Denning in the case of Trendex Trading Corporation V. Central Bank of Nigeria that “rules of customary international law changes from time to time and English courts must be prepared to accept and give effect to such change, and not be bound by any idea of stare decisis in international law”.

International Law

Examples of new rules introducing a change during international law are: the 1979 Convention on Hostage Taking which makes the practice of taking hostage an international criminal offence. This Convention was enacted into English law in 1982, the same principle applies to the Genocide Convention 1948 which in article 4 would implicate Heads of State for crimes of genocide. Other principles of international law holding Heads of State responsible for crimes of torture, genocide and other crimes against humanity are the principles established by both the Tokyo and Nuremberg International Military Tribunals in 1946 and the status of the international tribunals on former Yugoslavia and Rwanda. Under all these principles or statutes, individuals were held responsible in international law for committing crimes against humanity irrespective of their official positions. Thus, the High Court in London where the Pinochet case originated clearly missed this revolutionary principle governing the relationship between English Law and international law that Lord Slynn was referring to.[14]

Another question the law Lords had to consider was whether acts recognised as international crimes would have any effect on the immunity of a Head of State. For this issue, it was noted that there were two extreme positions with one of them arguing that there was no effect whatsoever, as such acts would have on a Head of State’s immunity. [15]It seems that this position ignores the fact that international law is not static and that the principle may be changed by state practice. The opposite extreme position argues that all crimes accepted as international crimes are outside the protection of the principle of immunity of a former Head of States. However, Lord Slynn rejected this contention.[16]

The law Lords seemed to have recognised or at least pointed to the birth of a rule of international law: the fact that now it has become a principle of international law that some crimes would do away with the protection of a former Head of State’s immunity. Therefore, immunity under the Law of Nations would not apply to crimes such as torture. However, the minority opinion which upheld the High Court’s decision appeared to have been influenced by different factors including absolute immunity of a former Head of State, the act of state doctrine and the fact that the provisions of article 4 of the 1948 Genocide Convention which makes constitutionally responsible rulers liable to punishment was not incorporated into the English Genocide Act 1948 which only partially incorporated the 1948 Convention.

The majority opinion however, had to consider another different question before finally breaking all the traditional barriers which used to prevent international law from being given effect in English courts: the Lords had to decide whether acts of torture, hostage taking or genocide with which Pinochet was accused of having committed were done in the exercise of his official functions as a Head of State. The High Court seemed to have answered this question in the affirmative when it quashed the arrest warrant and ruled that the general was immune from extradition proceedings before English courts. But the majority in the House Lords disagreed with the Lord Chief Justice.[17]

After a combined reading of articles 31 and 39 (2) of the Vienna Convention of Diplomatic Relations 1961 which deal with diplomatic immunities and the continuation or otherwise of such immunities after the person ceases to be a head of a diplomatic mission or a Head of State respectively, and Section 20 of the State Immunity Act 1978 which confers personal immunity upon a Head of State, Lord Nicholls who led the majority concluded that immunity is applicable only with respect to acts recognized by international law as a legitimate function of a Head of State, irrespective of the terms of his domestic constitution, and that torture of his subjects or aliens by a Head of State is not recognized by international law as forming part of a Head of State’s legitimate function. In line with articles 6 and 7 of the statute of the Nuremberg International Military Tribunal 1945 therefore, according to which crimes against humanity were offences against the Law of Nations irrespective of the official positions of defendants and the requirements of their domestic law, the majority held that the respondent Pinochet, was not free from responsibility under international law and should be extradited to answer those charges against him. The court further referred to a resolution of the United Nations adopted on 3 December 1973 according to which persons charged with crimes against humanity were not entitled to asylum or any form of protection by any state. As such, the resolution obliges states to assist each other in bringing such offenders to trial and not to take any measures – legislative or otherwise – that could be prejudicial to their international obligations to arrest, extradite, or punish such offenders. Likewise, articles 5 and 7 of the Torture Convention and articles 5 and 8 of the Convention on Hostage Taking 1979 have made it very clear that these crimes were to be punishable by courts of individual states and are obliged either to prosecute or extradite alleged offenders.

Another difficult legal issue that the law Lords first determined was the nature of the offences with which the general is charged under English Law. They decided that torture which is one of such offences was prohibited under English Law, in Section 134 of the Criminal Justice Act. Hostage taking contravenes Section 1 of Taking of Hostages Act 1982, which apparently incorporates the two conventions into English Law. Along the same line, the majority explained the ambiguity surrounding the principle of sovereign immunity. Lord Nicholls argued that although sovereign immunity might have been a single doctrine in the past when the Law of Nations did not distinguish between personal and state immunity, in modern English Law it is necessary to distinguish three different principles, i.e. State immunity formally known as sovereign immunity which is now largely regulated by Section 1 of the State of Immunity Act 1978, the Anglo American common Law doctrine of act of state and the personal immunity of the Head of State, his family and his servant which is codified under Section 20 of the state of Immunity Act 1978. As for the principle of State Immunity, it immunises the state, as an entity, from the jurisdiction of the courts of the United Kingdom. The court further clarified that this immunity of state cannot be circumvented by suing the Head of State in his personal capacity, i.e. the capacity with which the Head of State is sued and not the capacity in which he performed the act alleged to give rise to liability. As for the act of state doctrine, the court argued that it is subject to parliamentary control, that is, it yields to contrary intention by parliament.[18]

As such, any time the legislature has shown that an issue is to be justiciable in English courts the act of state will not apply to that issue. Lord Steyn in his majority opinion further clarified that the act of state doctrine will only arise if the court decides that the defendant does not have immunity. [19]Thus, acts of torture as defined under Section 134(1) of the 1988 Criminal Justice Act is precluded from the scope of act of state. So, in line with all the principles and facts explained above, General Augusto Pinochet was not immune from criminal proceedings in the United Kingdom of which extradition forms a part. The law Lords rejected the argument that if extradition proceedings could go ahead that would affect the diplomatic relations between Chile and Britain or between the latter and Spain if they were disallowed. This question – they argued – was a purely political matter to be determined by the executive alone. Similarly, the argument put forward by many was that if Pinochet was extradited to Spain, the Chilean fragile democracy and the reconciliation reached among various groups of society based on which the general agreed to relinquish power to a civilian administration would be endangered, was rejected by the majority in the House of Lords because on of such issues was justiciable.[20]

Finally, the majority judgment in Pinochet has established that statutory immunity of a former Head of State is not absolute, but is subject to two important requirements: that the defendant was a Head of State ratione personae and that he is charged with acts performed in the exercise of his official functions as a Head of State – ratione materiae.[21] Such functions are in line with the rules of international law.

Conclusion

The law Lords established an important principle of international law: that when it comes to human rights abuses involving crimes against humanity, primacy should lie with international law. This, perhaps, is why they rejected the argument put forward by the Chilean government that the crimes Pinochet was changed with were committed on Chilean soil, and therefore, he should be tried before Chilean courts and in accordance with Chilean on Law. The Lords have further indicated how effective the interpretive method approach can be if judges are willing and seriously prepared to employ judicial activism rather than judicial self-restraint. Thus, by decisively departing from the traditional conservatism and jurisdiction-bound character of English judges, the law Lords generously interpreted many principles and rules of international and domestic law to give judicial recognition to some of the most basic rules of the ILHR, namely, those dealing with crimes against humanity.

The Lords – by holding Pinochet responsible for the human rights abuses committee while he was a Head of State – have sent a powerful reminder to many former and current dictators that after or upon leaving office could be held responsible for abuses. However, the decision of the House of Lords has put the British government in a very difficult position now, not only regarding the fact that article 4 of the Genocide Convention 1948, which holds everybody including a Head of State responsible for crimes against humanity, has yet to be incorporated into English law. So now that the Lords have judicially, albeit, indirectly, done so, the British government is expected to take the necessary serious steps towards legislating article 4 and other relevant rules of the ILHR into domestic law. 

Ultimately, the ruling of Pinochet is a landmark decision, for it has redefined the relationship between international law and English law from the perspective of the judiciary. Being the highest court of law in Britain, the law Lords have established an authoritative precedent for other English as well as Commonwealth courts of justice to follow. However, given that the first decision of the House of Lords in this case was by a majority decision of 3–2, and that earlier the High Court upheld the absolute immunity of a former Head of State even with regards to serious international crimes like torture, genocide and hostage taking, some doubts are still left in the minds of many human rights advocates as to whether the teachings established by the Lords in Pinochet will prevail. As ILHR continues to develop in increasingly globalised times, it is essential that lessons learned in the case of Pinochet are developed to progress the human rights of citizens in all nations. As the Gambia re-joins the Commonwealth, this paper anticipates the impact of the Lords’ decision in establishing this ‘New Gambia’.

Footnotes

[1] Buergenthal, International Human Rights in a Nutshell 1 (1998)

[2] Such as The Genocide Convention 1948, The U.N. Convention on the Elimination of All forms of Racial Discrimination, The Convention on the Suppression and Punishment of the Crime of Apartheid 1973 and similar instruments. See Craven, The International Covenant on Economic, Social and Cultural Rights: A perspective on its Development 7 (1995)

[3] 1 Oppeninhein’s International Law 4 (1992)

[4] Glahn, Law Among Nations- an Introduction to Public International Law, 235-236 (1992). Also see Buergenthal, International Human Rights, 2.

[5] Ibid. 4.

[6] Humphrey, No Distant Millennium- The International Law of Human Rights 15 (989)

[7] This is a reference to the United Nations and its component organs, Ibid.

[8] For Further detail about the nature of the I.L.H.R see Ibid. 15

[9]  [1999] 2 All ER 97 (HL)

[10] ibid 9

[11] ibid 9

[12] ibid 9

[13] ibid 9

[14] ibid 9

[15] ibid 9

[16] ibid 9

[17] ibid 9

[18] ibid 9

[19] ibid 9

[20]  ibid 9

[21] ibid 9

 

 

II) Finance

 

The Perils of Sovereign Debts on the Progressive Realisation of Economic, Social and Cultural Rights in The Gambia

By Sainey Bah, LLB University of the Gambia, Faculty of Law; LLB University of the Gambia; LLM Human Rights and Democratisation, University of Pretoria and Makerere University).

Abstract

The Gambia is one of the poorest countries in the world that heavily depends on loans and grants to finance critical socio-economic services. However, the paradox is that even where such debts and loans are contracted to alleviate socio-economic distress arising from fiscal deficit, their servicing continues to present a challenge to the ability of the state to progressively realise its Economic Social and Cultural Rights (ESCR) obligations under international human rights law. This is even more pronounced in the adoption of retrogressive policies that exacerbate the ESCR deprivation of Gambians. This article seeks to analyse the impacts of sovereign debt on the realisation of ESCRs in the Gambia, and the need to ensure accountability and responsibility for ESRCs violations that arise because of debt management and contraction between the Gambia and creditors. To that end, relying on the current human rights structures in the domestic and African Human Rights system, the research advances a case for ensuring accountability for ESCRs deprivation aligned with sovereign debts.

Introduction

Despite recent projections that the Gambia’s economy is growing at a rate of 2.2% in 2016, the country remains the poorest in the Sub-Saharan Africa with over 60% of its population uncomfortably sitting below the international poverty line.[1] In 2015, the United Nations (UN) Committee on Economic, Social, and Cultural Rights (CESCR) in its concluding observations on the initial report of the Gambia expressed concern about the high prevalence of poverty in the Gambia and the absence of normative basis to ensure the accountability of government for ESCR deprivations.[2] Therefore, economic growth is not translating into human development, partly due to significant deficiency in social spending as critical funds that could finance socio-economic services are spent to discharge the countries’ debt burden.

This research raises fundamental questions of accountability and responsibility for ESCR deprivations that arise because of sovereign debt in the Gambia. Sovereign debts are usually contingent on the implementation of economic and fiscal measures that frustrate the development aspirations and the efforts of Sub-Saharan African countries in the fulfilment of their ESCRs obligations. This paper is both a critical interdisciplinary reflection on the link between sovereign debt and ESCR deprivation in the context of the Gambia, and a venture to give a scholarly attention to the normative and legal challenges of ensuring accountability and responsibility arising from measures aligned to sovereign debt. 

The human rights language that is now ubiquitous is gradually emerging in the context of sovereign debts and loan conditionalities with its consequential effects of extending beyond mere contractual obligations between debtors and creditors to establish grounds for responsibility and accountability for ESCR deprivations.  The Gambia is one of the poorest countries in the world that heavily depends on loans and grants to finance critical socio-economic services. However, the paradox is that even where such debts are contracted to alleviate socio-economic distress arising from fiscal deficit, their servicing continues to present a challenge to the ability of the state to progressively realise its ESCR obligations under domestic and international human rights law. The recent Appropriation Bill 2018 indicates that over 30% is allocated to National Debt Service, which compels the state to deprioritise critical social services such as health, education, social security and agriculture.[3]

There is an emerging commitment in the enforcement of ESCR at international, regional and domestic levels. At the international level, the commitment to protect and enforce the material well-being of individuals has led to the infusing of human rights into international development agendas, and recently culminated to the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR).[4] At the African regional level there is a slow emergence of ESCR jurisprudence in the decisions of the African Commission on Human and Peoples’ Rights, and a proliferation of initiatives to both eradicate poverty in Africa and mainstream ESCR in the development agenda and aspiration of the African Union. The outcome of the latter has led to the adoption of New Partnership for Africa’s Development (NEPAD) among other initiatives to eradicate poverty through the adoption of sound economic and fiscal policies in Africa. The adoption of NEPAD as a continent-wide, developmental blueprint was also intended to articulate the terms of external development cooperation between African states and the rest of the world.[5] At the domestic level, courts have become more assertive in protecting and enforcing ESCR across Africa and beyond by largely relying on a transformative, constitutional interpretation of policy objectives.[6]

However, these achievements are seemingly offset by the impacts of sovereign debt and loan conditionalities that influence the prioritisation of ESCR in the fiscal policies of Sub-Saharan, African states. Despite rapid and increased attention of ESCR in recent times, it will be catastrophic to underestimate the impacts of states’ fiscal policies on ESCR or ignore the absence of international and domestic accountability for deprivations arising from sovereign debts. Using ESCR as interface, sovereign debt in the Gambia must be revisited.

The Gambia is a listed Highly Indebted Poor Countries (HIPC) and benefited from the Multilateral Debt Relief Initiative (MDRI) meant to alleviate the debt burden of poor countries in the world. Thus, the Gambia is not eligible to borrow from International Bank for Reconstruction and Development (IBRD). Despite benefiting from the MDRI, the Gambia has one of the highest sovereign debts in Sub-Saharan Africa proportional to its GDP.[7] Despite being an emerging democracy with prospects for economic growth, the Gambia maintains a high prevalence of poverty, inequality, marginalisation, illiteracy, unemployment and with serious socio-economic policy deficits, which positions the Gambia lowest on the UN Human Development index.[8] This paper therefore advances a case for the deployment of a coherent and human rights friendly framework that will guide the procurement and implementation of sovereign debts and agreements in order to mitigate their impacts on ESCR. One approach could be the utilisation of the African regional human rights system with its tool of periodic reviews and complaint mechanisms to anchor and monitor the impacts of sovereign debt on states’ ESCR obligations. 

Given the crosscutting nature of the topic, this paper uses diverse of materials from economics, trade, fiscal policy, welfare policies, and law. These materials are analysed using the prism of ESCR. The study also attempts a critical analysis of ESRC and the obligations they engender for states, which forms the basis for questioning the actions of the Gambian government in sovereign debt contraction and management to support the hypothesis that states should not enter into financial arrangements that will compromise their ability to discharge their ESCRs obligations. It will also serve as the basis to support the hypothesis that loan servicing compromises ESCR in the Gambia. This article further analyses the economy of the Gambia to ascertain whether positive economic outlooks translate into practical implementation of ESCR, and if not, asks whether sovereign debt could be one of the major militating factors in the realisation of ESCR at a time when the economic growth is seemingly floated as one of the achievements of the new government since 2016.

Locating the Paradox of Sovereign Debts and ESCRs

Although there is adequate evidence that suggests a correlation between widespread ESCRs deprivation in Sub-Saharan Africa,[9] little efforts have been made to ensure domestic and international accountability for the violations of ESCRs caused by debt arrangements between Sub-Saharan African countries and domestic and international lenders.[10] The problem is further complicated by the absence of any framework in Africa that is adequately framed to assist policy makers in making difficult choices concerning sovereign loans. The main international instrument on ESCRs, ICESCR hitherto provides no substantive guidance and neither the CESCR also has provided any guidance.

The scarce resources that are badly needed to fund critical socio-economic programmes end up servicing loan repayments that can last for years. The implications that result from such loan repayments can be catastrophic to ESCRs. There is no doubt that loan agreements come with conditions that are not only averse to ESCRs but can also be perilous to the development aspiration of Sub-Saharan African countries.[11] Ironically, the terms of loans and their conditions determined by lenders and institutions to ameliorate adverse consequences are not alive to the domestic realities of Sub-Saharan Africa. Loan agreements also come with obligations to ensure economic adjustments, fiscal policy and budgetary reforms that put states in a dilemma to fulfil their ESCRs obligation on the one hand and equally ensure the operationalization of their contractual obligations.

Given the above conditions, the economies of most Sub-Saharan countries are more aligned to discharge their debt burdens than to enhance domestic realisation of ESCR for their citizens including marginalised and vulnerable groups. Consequently, Sub-Saharan Africa remains a dwelling for absolute poverty, high level of inequality, unemployment, social and economic exclusion, high prevalence of preventable diseases, high child and maternal mortality and unprecedented underdevelopment. The challenges to ensure the domestic realisation of ESCR are deeper than an alleged reluctance of states to direct resources towards the enjoyment of ESCR. Furthermore, the challenges emanate from sovereign debt and loan conditionalities. Debt conditionalities such as austerity measures, the privatisation of state enterprises, structural adjustments, trade liberalisation, and budget cutting often have negative consequences on the realisation of ESCR – thereby deepening inequality and poverty in Sub-Saharan Africa.

Theoretical Framework

This research is premised on the theory that there is a correlation between the massive ESCR deprivation in the Gambia and the conditions of sovereign debts; and all actors that take part in their implementation bear obligation to respect human rights. Sovereign debts conditions are inherently troubling for developing countries as the measures they require usually demand severe cuts on public and social services.[12] The study is also based on the theory that ESCR are enforceable rights and sovereign debts conditions that violate them can be attributable to both state parties and debt creditors. With respect to states, their ESCRs obligations arise from their domestic and international human rights undertakings towards their population and any financial arrangement they engage in which violates those undertakings can constitute a violation of their obligations.[13]

Incidental to the emergence of the modern state is the shift of the obligation to ensure the socio-economic well-being of people from the market and private institutions to the state.[14] The Gambia assumed that obligation when it acceded to various international human rights instruments including, ICESCR, UN Convention on the Rights of the Child (CRC), International Convention on the Elimination of All forms of Racial Discrimination, the African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on the Rights of Women (Maputo Protocol) and the African Charter on the Rights and Welfare of the Child (ACRWC).[15] These instruments guarantee different ESCRs with corresponding legal obligations.

ESCRs consist of a bundle of rights that largely engender positive obligations on states. Historically, they have been sacrificed on the altar of ideological contestation, in favour of civil and political rights, with the later trivialised as economic goals and social policies rather than enforceable human rights.[16] Against the recommendation of the UN General Assembly for a single instrument for ESCRs and civil and political rights,[17] two instruments were separately adopted due to ideological differences between states.[18] These differences between the two categories of rights are reflected in the perceived nature of the obligations they engender.

Irrespective of the historical differences between ICESCR and the ICCPR however, both instruments are now equipped with complaint mechanisms.[19] The ICESCR imposes obligations on state parties to progressively realise ESCRs using their maximum available resources.[20] In addition to the substantive ESCRs contained in the Universal Declaration of Human Rights (UDHR), the ICESCR which is the primary international instrument on ESCRs at UN level guarantees justiciable ESCRs.[21]

The ICESCR demands state parties to move as expeditiously as possible towards the full realization of ESCR, bearing in mind that certain ESCRs cannot be achieved in the short term.[22] As such, states bear an obligation individually and collectively through international assistance to take steps towards the progressive realization of ESCRs. In General Comment 3, the UN CESCR posits that these steps must be ‘deliberate, concrete, and targeted as clearly as possible’.[23] It further emphasised that there are certain ESCRs that impose immediate obligation and are capable of immediate application.[24] Significantly, irrespective of resource availability, states are obligated to ensure a ‘minimum core’ of ESCRs. After a serious neglect of ESCRs globally, the Vienna Declaration and Programme of Action called upon states to adopt holistic and concerted efforts to realise ESCRs at international, regional and domestic levels.[25] At the domestic level this led to a renewed commitment in the enforcement of ESCRs through an unprecedented rise in adjudication.[26]

The progressive interpretation of the content of these treaties by the African Commission is gradually concretising ESCRs at the African Regional level. In Free Legal Assistance Group v Zaire[27] it held that the state was in violation of the right to education and health due to financial mismanagement by public officials.[28] However, in this communication, the African Commission failed to define the content of the rights that were violated. Rather, it only regurgitated Article 16 of the African Charter. This communication arguably reflects those moments when the African Commission struggled to articulate the content of ESCRs in Africa. A similar shortcoming manifested in Union Inter africaine des Droits de l’Homme and Others v Angola[29] where the African Commission found Angola in violation of the right to education and work but failed to elaborate on the content of these rights.[30]

However, the African Commission advanced its approach to ESCRs in the subsequent cases of the Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (SERAC case)[31] and Purohit and Another v The Gambia (Purohit case).[32]  In the SERAC case, the African Commission did not only elaborate on the content of ESCRs, but went further to read into the African Charter that some rights are not explicitly provided for, such as the right to food and shelter. In the Purohit case, the African Commission gave realistic normative content to ESCRs obligations. It held that due to economic circumstances of African states, the obligations engendered by ESCRs are not immediate.[33] However, states are required to direct their machinery towards making the enjoyment of ESCRs a reality in Africa.

Because of these decisions, the African Commission in 2011 adopted Principles and Guidelines on Economic Social and Cultural Rights in the African Charter on Human and Peoples’ Rights designed to guide states and other stakeholders to monitor the implementation of ESCRs and develop normative standards for ESCRs. These guidelines, in addition to consolidating the jurisprudence of the African Commission also provide guidance on the precise content on all the ESCRs guaranteed in the African Charter, and the nature of state obligation. The above decisions and normative frameworks reflect the progress that has been registered at the regional level in the enforcement and implementation of ESRCs in Africa.  Given their clarity, they provide a normative guide to this article.

Global and Regional Responses to the Impacts of Sovereign Debt on ESCRs

Due to the escalation of sovereign debts and the challenges they present to Least Developed Countries (LDCs) in the world and particularly in the Sub-Saharan Africa, efforts were garnered at the global, regional and national levels to provide debt relief to HIPC. Some of those efforts attracted some level of scholarly attention from diverse disciplines, including human rights practitioners whom observed the devastating impacts of sovereign debt on ESCRs.  In 2004, the UN Commission on Human Rights adopted Resolution 2004/18 which led to the formulation of guiding principles for states in their sovereign debt contraction.[34] This framework is the only available soft law at the UN level on sovereign debt and ESCRs. Based on this framework in 2015 and pursuant to a UN Human Rights Council Resolution 25/16, a study was commissioned on the effects of sovereign debt on the realisation of human rights and ESCRs in Greece.[35] The study found that the austerity measures adopted by Greece on the demands of international lenders led to the violation of Greek ESCRs obligations as the structural programmes were implemented without prior impact assessment on ESCRs.[36]  

While questioning the ad hoc efforts from developed countries in providing debt relief to third world countries, Tan noted that the current approach to debt relief is unsustainable because it depends on the political will of main creditor states.[37] Tan further argued that despite accepting a notional link between sovereign debt and ESCRs, the current sovereign debt framework ‘prioritises debt servicing over and above a state’s duty to provide for social and economic welfare of its citizens.’[38] As an alternative to the current sovereign debt relief regime, Tan advances a notion of debt relief mechanisms anchored on wider global redistributive justice and human rights. She also argues that there should be a departure from conceptualising sovereign indebtedness as an offshoot of poor fiscal policy and bad governance. Rather it should be viewed as indicative of wider structural imbalances in the global economy.[39] Although it is arguable that debt cancellation avails LDC opportunity to do away with loan agreements that constrain their budget, it is difficult to consider it as entitlement or a right based on any established international law.

Tan further argues that eradication of poverty is a public good and as such, the global economy should cater for all.[40] Again, it is difficult to anchor poverty as global good given the fact that it is conceptually near impossible to fit it within the two strands of public goods that have emerged in literature. According to Langford, the concept of global goods can be determined based on the positivist or constructivist approach.[41] The positivist approach identifies and recognises those public goods that deal with general global interest. Consequently, the ‘global’ is an important component in determining global goods in the positivist approach.[42] On the other hand, the constructivist approach recognises that what constitutes global goods is a matter of social contestation depending on the choice of the authority that is likely to be influenced by competing actors. Given the concentration of global political and economic power in few actors, it is unlikely that the current power relations at the global level will construct poverty eradication as global goods.

Likewise, Rossi examined how a court decision in the United States (US)[43] inspired global efforts to rise against prioritising the property rights of few creditors as more important than the rights of populations in the Global South.[44] In 2005, the Argentine government made unprecedented efforts to reduce its debt burdens by largely restructuring it and settling external creditors such as the IMF. Despite those efforts, $81.8 billion was owed to private creditors as bondholders. A group of private creditors that constituted just 1.6% of the creditors refused to join the debt restructuring and claimed to be paid 100% of their bonds with a return of approximately 1600% more on what they had paid at the time of acquisition of the bonds.[45] In disagreement with the court’s judgment that compelled Argentina to comply with its debt obligations, Rossi argued that this case is an extreme example of a lack of binding treaty that regulates sovereign debt restructuring at the international level.[46] Thus, Rossi argued that states should not be compelled to exhaust all their resources to settle creditors, as such will be at the expense of their ESCRs obligations.

However, Rossi’s arguments for an equitable global economic system seem to be premised on the need for the Global South to mobilise and inform the content of a potential treaty on sovereign debt restructuring at the international level. This premise will further polarise the human rights discourse between economic and regional blocks that may shift the debate from how to mitigate the impacts of sovereign debts on ESCRs in LDCs to a prolonged power contestation. Moreover, while legal response maybe very critical in addressing the existing gaps in sovereign debt restructuring; it should be accompanied by institutional reforms that will centralise the ESRCs of citizens in debtor states.

Goldmann also wrote about the asymmetry between human rights enforcement and creditor’s claims in sovereign debt workouts.[47] He argued that civil and political rights alone do not guarantee a decent life, even in a liberal democracy. In relation to sovereign debts, Goldmann posits that resources that can be used for social services may be channelled to debt servicing, and states may also be required to adopt structural reforms that adversely affect ESCR.[48] The latter has led to scarcity of drugs in health sectors and the pricing of medical services in Africa.[49] Goldmann further posits that sovereign loan conditionalities can lead to retrogressive measures by states that can compromise their ESCRs obligations. Drawing on the principles of responsibility and accountability under the ICESCR, he argued that although social policy does not fall within the mandate of IMF, in practice however its adjustment programmes had negative consequences on healthcare, labour, housing, sanitation and access to water across the world.[50]

The approach employed by Goldmann in calling for the accountability of all actors in sovereign debt contractions and workouts also informs the approach of this research. However, the purpose of his paper is narrower than the objective of this research as the former exclusively focuses on the moral and legal justification for allowing debtor states debt restructuring negotiations particularly when insistence on contractual terms will have adverse impacts on ESCRs. This research focuses on the Gambia to assess the impacts of sovereign debt on the realisation of ESCRs and suggest alternatives to the current sovereign regime that will consider ESCRs. 

Similarly, Ordu specifically explains the challenges sovereign debt presents to Sub-Saharan African countries in their efforts to ensure the fulfilment of their ESCRs obligations.[51] He explores the conflicting claims of actors in sovereign debt contraction and the trends of the problem in recent times in Africa. He noted that efforts are being made through the African Union (AU) and UN to ease the debt burdens of Sub-Saharan African countries. At the regional level, the Organisation of African Union (OAU) in 1980 adopted the Lagos Plan of Action, which called upon international financial institutions to assist African countries in their development aspirations.[52] Seven years later, the OAU adopted the Declaration on Africa's Indebtedness, which expressed concerns on Africa’s indebtedness, and appealed to creditors for a dialogic process that will lead to short, medium and long term solutions to Africa’s growing debt crisis.[53]

Moreover, in 1989, the OAU adopted the Enduring Alleviation of Africa's Debt Problems Resolution as part of efforts to alleviate Africa’s debt burden.[54] In 2005, the OAU efforts culminated in the adoption of the New Partnership for African Development (NEPAD), which was designed to provide a blueprint for Africa’s renewed commitment to link debt relief to poverty reduction in Africa. Based on the above trends, Ordu extrapolates the likely future trends of sovereign debt in Africa.[55] He projects that despite HIPC initiatives by the IMF sovereign debt is likely to increase in LDCs including Africa. He further projects that one should expect severe cuts in essential social programmes such as education, healthcare, water and other pro-poor services. Furthermore, Ordu projects that sovereign debt will continue to stunt Africa’s development growth and engender political instability if efforts are not put to encourage responsible borrowing and lending.[56]

Barry posits that it is hard to imagine how states can fulfil their ESCRs obligations if they don’t have the right to borrow in the name of their citizens.[57] He argues that when sovereign debt is high, it limits a state’s ability to guarantee even a minimal adequate standard of living for its citizens. Thus, he observed that Tanzania in 2005 spent nine times on servicing debts than health care, despite 1.6 million citizens living with HIV/AIDS. Given the severity of debt crisis on human rights in general, Barry obliges states to explore durable arrangements that would be worthwhile to regulate sovereign debt and mitigate its perils on human rights.[58]

Furthermore, Swaminathan also argued that IMF and World Bank-sponsored macroeconomic programmes are antithetical to ESCRs guaranteed in the ICESCR.[59] However, he posits that it is not easy to link ESCRs violations to such programmes given the ‘sheer vagueness of the relevant statutory language, and it’s very significant qualifications of the inviolability of economic and social rights.’[60] Thus, he contends the increasing control of governments by multilateral financial institutions obviates states’ accountability to their electorates. As a way of safeguarding against unresponsive governments and unaccountable financial institutions, Swaminathan suggests that a clear definition of ESCRs will allow recourse to enforcement and protection of ESCRs.[61]

On the issue of accountability, Kutz examines the grounds for the accountability of creditors or investors, particularly where their complicity with states leads to human rights violations.[62] He extends the issue of corporate responsibility from the classical consequentialist position to role responsibility premised on moral obligations of creditors to avoid harm on the one hand, and assume positive obligations in the execution of their business.[63] Follesdal also recognises a negative obligation on creditors to ensure that their actions do not violate the rights of others.[64] He extends the argument further by arguing that creditors form part of the global economic structure, and as such, must assume responsibility for any harm they do to any interest. However, unlike Kutz, Follesdal does not address the issue of whether creditors can bear positive obligations in their transactions. On his part, Mestad is reluctant to extend responsibility of creditors beyond the typical principle of corporate ‘control’ to ‘sphere of influence’.[65] He argues that the term ‘sphere of influence’ is very vague and noted its non-existence in international law.[66]

ESCRs Legal and Policy Framework in the Gambia

In the domestic legal order, ESCRs are guaranteed either in the constitution or in legislation.[67] Guaranteeing them in a constitution comes with important advantages. Firstly, a constitution can serve as a benchmark upon which the validity of legislation or policy can be tested.[68] Secondly, such a guarantee also dictates the direction of domestic law in general.  However, there are three main ways through which ESCRs may be guaranteed domestically. They may be guaranteed in a bill of rights in a constitution.[69] The implication of this approach is that they are usually available as subjective rights that can be enforced in court. Secondly, they may be included in the constitution as part of National Directives or in a domestic legislation. Their justiciability is contestable in the former because National Directives only provide a guide to judicial interpretation and executive policy making and functions. But their justiciability is beyond doubt when they are incorporated as subjective rights in legislation. These approaches are the major pathways for incorporating international standards into domestic legal systems.

The Gambia’s legislative approach to ESCRs cannot easily be explained using any single approach. The 1997 Constitution of the Gambia which is the supreme law of the land[70] contains a bill of rights guaranteeing a limited number of ESCRs. These rights include the right to education, to property, and the right to join trade unions.[71] Thus, those rights that are expressly guaranteed in Chapter 4 of the Constitution can be enforced through a judicial process in terms of article 37. Fundamental rights such as the right to food, shelter, clean water, adequate standard of living only form part of the National Objectives,[72] and as such makes it difficult for individuals and stakeholders to hold the government of the Gambia accountable for ESCRs violations through the judicial process.

However, a reading of article 37(8) of the 1997 Constitution of the Gambia[73] suggests that the rights guaranteed in Chapter 4 are not exhaustive, and do not exclude the enjoyment of other rights, particularly those in the National Objectives. This provision provides that the rights specifically mentioned in Chapter 4 of the Constitution should not be regarded as ‘excluding other rights which may be prescribed by an Act of the National Assembly as inherent in a democracy and intended to secure the freedom and dignity of man.’ Therefore, article 37(8) can arguably become a basis from which to seek the enjoyment of those rights contained in the National Objectives, as they enhance human dignity and are inherent in a democracy. The National Objectives are couched in terms of only serving as guiding principles in the interpretation and application of the constitution and policy making process of the government.[74] Though they may not engender enforceable legal obligations, they can be useful as constitutional benchmarks to ensure accountability for ESCRs deprivation arising from government fiscal policies.

Moreover, a stronger case for the justiciability of ESCRs contained in the National Objectives in the Gambia can be made if one considers the possible imports of article 211(b), which provides that the:

‘…Executive, the Legislature and all other organs of the State in taking policy decisions, making laws and in the administration of the Gambia, shall according to their respective functions be guided by and observe them with a view to achieving by legislation or otherwise the full realisation of these principles.’[75]

Therefore, institutions mandated with the responsibility to either interpret or enforce the constitution are required to be guided by the provisions in the National Objectives as interpretive guides. This provision at minimum imposes a constitutional commitment on the organs of the state to ensure the realisation of the National Objectives consistent with fundamental ESCRs of citizens that maximises their well-being, dignity, and enhances their life chances and opportunities.

In addition to the 1997 Constitution of the Gambia, the government of the Gambia adopted policies and legislation relevant in the realisation of ESCRs. These include the Domestic Violence Act and the Sexual Offences Act of 2013, Women’s Act 2010, Trafficking in Persons Act 2007 and its amendment in 2010, the Labour Act 2007 and Children’s Act 2005. Beyond this legislation, the Gambia has also adopted development policies that form an important component of the legal and policy framework for the implementation of ESCRs.[76] Such policies rather consist of a variety of soft law rather than hard law sources that are useful in providing the harmonisation of government policies with ESCRs obligations.

Drawing on the above, the National Objectives that form part of the 1997 Constitution of the Gambia and other provisions contained in Chapter 4 reflect a commitment to govern the Gambia in accordance with the values of social justice. Therefore, the Constitution lays the foundation for a democratic dispensation, where the life opportunity of every Gambian is guaranteed. To take ESCRs beyond the syndrome of mere ‘paper promises’, courts and other democratic institutions must endeavour to facilitate the realization of these rights in a way that is consistent with human dignity, particularly at a time when the government of the Gambia is increasingly developing a penchant for debt contraction whose servicing are antithetical to its ESCRs obligations. Thus, the next section inspects how debt burden and loan servicing is diverting critical resources away from fulfilling the government’s ESCRs obligations in the Gambia to loan servicing, and the consequential imposition of these austerity measures.

The Gambia’s Debt Burden and its Perils on the Realisation of ESCR

What is required of the Gambia under international human rights law is to make efforts for the progressive realisation of ESCRs. This requires the Gambia to move as expeditiously as possible towards the full realization of ESCRs, bearing in mind that certain ESCRs cannot be achieved in the short term.[77] In General Comment 3, the UN CESCR posits that these steps must be deliberate, concrete, and targeted as clearly as possible.[78] It further emphasised that there are certain ESCRs that impose immediate obligations that are capable of immediate application.[79] Thus, irrespective of resource availability, states are obligated to ensure a ‘minimum core’ of ESCRs. The recent rise of loan contraction in the country to deal with the economy sacrifices essential social services in favour of loan servicing.

In 2010, through its Poverty Reduction Strategy Paper (PRSP), the government of the Gambia made a commitment to invest 25% of its budget into poverty reduction through investment in social services to enhance human development.[80] However, it failed to meet that target due to the high cost of debt servicing that currently consumes over 30% of the annual budget. In the most recent budget estimates, over Gambian Dalasi 4.2 Billion is earmarked for debt servicing which is four times more than the health care expenditure and three times more than the allocated amount for education, pensions and social security.[81] This translates into a deficit in socio-economic investment in the country. For instance, the allocated GMD 955,171,920 to the health sector is twice less than the 15% of Gross Domestic Product threshold recognised in the Abuja Declaration of 2001, where African heads of states made commitments to adequately finance health care services in their countries.[82] In 2013, the National Health Account in the Gambia showed that the health expenditure of the government only stood at 5.6% of the GDP, and 46.7% of that was donor funded whilst only 28% came from the government, which left households with the need to finance 21.21% of the national healthcare services.[83]

Beyond squeezing resources from the health sector, sovereign debt is also undermining the state’s ability to realise the right to development in the Gambia. The right to development is an inalienable right, which all persons are entitled to take participate in to enjoy their ESCRs and development with political aspirations and unfettered dignity.[84] The right to development is understood as a collective and individual right that can be asserted by an individual.[85] The content of the right to development is understood as engendering both positive and negative obligations. In the case of Centre for Minority rights (Kenya) & another v Kenya (Endorois case),[86] the African Commission held that article 22 of the African Charter places an obligation on the state to improve the well-being of all the people and create conditions favourable to people’s development. As such, the state is required to support the creation of an environment in which people can develop their full potential and enhance their life chances.

Thus, in line with article 1 of the International Covenant on Civil and Political Rights (ICCPR), at the bare-minimum the state should not deprive people of their means of sustenance by investing same in servicing debts that hardly benefit them. The African Commission in SERAC case held that the state should respect and refrain from negative interference with enjoyment of human rights.[87] The Edorois case emphasises that the pursuit of development should be participatory to allow people to consent to development plan that can impact their lives.

Moreover, in further defining the right to development, Amartya Sen advanced a broad understanding of the right to development which goes beyond mere increase in the material well-being of people to include the enlargement of freedoms enjoyed by people.[88] He therefore defined the right to development as a collection of claims that includes healthcare, education, food and all civil and political rights. Thus, he argues that development includes removing barriers to the realisation of the basics for human nourishment.[89]

Drawing from the above, the servicing of sovereign debts presents an obstacle to human development, as it puts unnecessary barriers to the realisation of basic ESCRs in the Gambia. Moreover, the right to development is violated if one considers the fact that the right entails both substantive and procedural aspects. The latter requires people to participate in development plans that concern them. In sovereign debt contractions and servicing in the Gambia, the poor who remain alienated from the processes bear the consequential effects of debt burdens. As the government realigns its economy to service debts, much of the pro-poor policies shrink. Different actors are involved in sovereign debt contraction and management. In the Gambia, due to the absence of transparency concerning debt contraction, it is difficult to identify the different actors in their different formations for accountability.

Ensuring Accountability

Given the impacts of sovereign debts and loan conditionalities on the state’s ability to realise the ESCRs of Gambians through adequate financing, it is imperative to explore possibilities for state accountability and responsibility for increasing the vulnerability of citizens arising from measures align to sovereign debts and decision making. This is based on the logic that political economy as espoused by Margaret Legum who argued that ‘Economics is not about the logic of a system: it is about people and how they are being served by whatever system we are using.’[90] Thus, the economy of a country supposedly designed for people must yield to their needs and aspirations, and in the event economic resuscitation deprives ESCRs, the state in one way or the other must be held accountable through domestic and international human rights mechanisms. That extends to corporations and institutions involved in sovereign debt contractions and management with the state as they dictate the fiscal and macroeconomic policy of the debtor country.

Paragraph 47 of the UN Monterrey Consensus of the International Conference on Financing for Development provides that ‘Debtors and creditors must share the responsibility for preventing and resolving unsustainable debt situations.’[91] Therefore, it can be argued that seeking responsibility must be done through the diffusion of accountability to the state as the primary obligor, and institutions and corporations as secondary obligors. As such, all actors in sovereign debts must assume shared responsibility consistent with their specific ESCRs obligations.

The government of the Gambia is bound by its international obligations arising from the various treaties that guarantee the ESCRs of its citizens in line with democratic values. The government – as the primary obligor in international human rights law – bears the obligation to respect, protect and fulfil ESCRs by using its available resources through the direct provision of basic needs.[92] This obligation includes providing and facilitating the enjoyment of the minimum core of each of the rights in the IESCR.[93] For a state to be absolved of liability, it must indicate that it has used the maximum of its available resources to discharge its minimum core obligations. The CESCR held that the mere inadequacy of resources does not relieve a state to ensure the widest possible enjoyment of the rights under any prevailing circumstances. As such, the fact that the Gambia has a high debt burden does not absolve it of its ESCRs obligations to create the environment that will facilitate the widest enjoyment of ESCRs.[94]

With regards to the appropriate forums, much reliance can be made on the available domestic, sub-regional, regional and international mechanisms to bring individual and class actions against the government of the Gambia for violations of ESCR arising from its positive actions in debt management and restructuring. Thus, the starting forum would be the High Court of the Gambia which has original and exclusive jurisdiction to hear cases of alleged human rights violations in terms of article 37 of the 1997 Constitution of the Gambia.[95] Relying on article 37, Gambian courts have in a plethora of decisions found the government in violation of civil and political rights enshrined in chapter four of the 1997 Constitution of the Gambia.[96] However, there are no known cases on ESCRs. Moreover, the recent establishment of the Gambia Human Rights Commission also provides a forum to vindicate ESCRs violations that may arise from sovereign debt contraction and management.[97] In terms of section 19 of the National Human Rights Commission Bill 2017, the Commission will have the power to establish thematic committees that will be dealing with various thematic human rights concerns. Thus, sovereign debts can be anchored as part of its thematic focus to monitor their impacts on ESCR in the Gambia to engage the relevant stakeholders.

The jurisdiction of National Human Rights Commissions to ensure the protection, promotion and realization of ESCRs is an inherent mandate that stems from their general human rights mandate. General Comment 10[98] of the CESCR provides that National Human Rights Commissions have a duty to ensure the promotion, protection and fulfilment of all human rights.[99] Their functions may include monitoring human rights situations, reviewing domestic legislation, reporting to international bodies, handling individual and collective complaints. Thus, the Commission presents a complementary and viable avenue for the implementation of ESCRs in the Gambia because it enjoys a comparative advantage in terms of its ability to pursue a variety of strategies for the implementation of ESCR beyond a limited, court-centric, litigious approach in the Gambia. Therefore, proactive engagement of the Commission will not only give visibility to ESCR violations arising from sovereign debt, but also trigger legal and policy reforms in the Gambia that can anchor ESCR in the current domestic human rights architecture, and strengthen accountability for ESCRs violations.

At the sub-regional level, the Economic Community of West African States’ Community Court of Justice (ECOWAS-CCJ) also presents an important avenue for ensuring accountability and responsibility of the government of the Gambia for violations of ESCR arising from sovereign debts. The ECOWAS-CCJ in the matter of Registered Trustees of the Socio-Economic Rights and Accountability Project v Nigeria determined that it had jurisdiction to determine cases based on the African Charter on a complaint related to the right to education.[100] The ECOWAS-CCJ also relied on the doctrine of actio popularis as a mechanism for individuals and citizens to vindicate public rights in court whenever they are breached to overcome barriers to access justice.[101] Given the above decision, it is submitted that there are indications that the ECOWAS-CCJ provides a viable avenue to seek the accountability of the government of the Gambia for ESCRs deprivation align to sovereign debts.

Moreover, the Gambia being a party to the African Charter and other regional human rights instruments is subject to the African regional mechanisms for human rights and governance. The African Commission with its protective and promotional mandate has been instrumental in the enforcement and promotion of ESCRs in Africa, particularly at a time when the enjoyment of ESCRs rights at the domestic level in many African states is reduced to mere policy aspirations. In terms of its protective mandate, the commission found states in violation of ESCRs related to the right to health, food, shelter and development.[102] The African Commission also exercises promotional mandates that include receiving states’ periodic reports under the African and the Maputo Protocol.[103]

The aim of state reporting is to allow the African Commission to examine the measures adopted by states to ensure the fulfilment of their human rights obligations. The process also allows states to conduct self-assessment and introspection to identify their achievements and failures under the African Charter and the Maputo Protocol.[104] Individuals and relevant stakeholders can utilise these mechanisms to hold the government accountable and provoke a dialogue on the perils of sovereign debts on ESCRs, relying on the African Charter as a normative basis. The utility of the state reporting process will depend on the ability of the African Commission to go beyond the acceptance of mere listing of legislations and policies[105] adopted by states to examine how their sovereign debts arrangements lead to retrogressive social policies and measures, particularly when critical ESCRs are underfunded due to the diversion of available resources to debt servicing.

Complementing the regional mechanisms, the UN General Assembly adopted the Optional Protocol to the ICESCR (OP-ICESCR).[106] This protocol established a complaint mechanism for individuals and groups to lodge complaints with the CESCR on the condition of the exhaustion of local remedies.  The adoption of this protocol was symbolic at the global level as it defied the perception and marginalisation of ESCRs as mere policy aspirations, and provided access to justice for victims of ESCRs violations. In addition to a complaint procedure, the protocol also provides for inquiries procedure in cases of systemic and gross violations of ESCRs.[107] However, the Gambia is not yet a signatory to this protocol. Therefore, it is not subject to the complaint mechanism. Nonetheless, at a time when there is commitment to uphold human rights in the Gambia, efforts should be made to sign and ratify the optional protocol to increase the latitude of accountability at the global level.

Conclusion

At this juncture, an important season lies ahead for the Gambia. It is a season to reverse the trend of excessive and reckless borrowing, and invest more into human development and ESCR. Prudent borrowing and spending can contribute to human development in the Gambia. But excessive borrowing and its servicing can also be antithetical to the ability of the country to execute its ESCR obligations, as critical resources can be diverted to loan servicing. The current debt crisis in the country presents a serious challenge to the government’s fiscal policy. To address that crisis and its underlying causes, the state must consider its ESCR obligations, bearing in mind that one of the core functions of a government is the provision of basic social services that can enhance sustainable human development in the absence of which the poor and the vulnerable will be subordinated. The impacts of sovereign debts on the enjoyment of the right to education, health, social security, food, employment and shelter remain palpable as they are seriously underfunded. The enjoyment of ESCR requires adequate funding. Side-lining ESCRs in debt contraction and restructuring degenerate their relevance in the modern state that should ensure Gambian citizens access to basic welfare services that will enhance their human dignity.

Footnotes

[1] Trading Economics: Gambia GDP Annual Growth Rate 1968-2017 available at https://tradingeconomics.com/gambia/gdp-growth-annual (accessed 19 December 2017).

[2] Concluding observations on the initial report of the Gambia Adopted by the Committee at its fifty fourth session (23 February–6 March 2015).

[3] Appropriation Bill 2018.

[4] General Assembly Resolution A/RES/63/117, 10 December 2008.

[5] C Mbazira ‘A path to realising economic, social and cultural rights in Africa? A critique of the New Partnership for Africa's Development’ (2004) 1 AHRLJ 34-52.

[6] S Liebenberg ‘Participatory Approaches to Socio-Economic Rights Adjudication: Tentative Lessons from South African Evictions Law’ (2014) 32 Human Rights Quarterly 312-330.

[7] The current sovereign debt of the Gambia stands at 120% to the GDP.

[8] UNDP ‘Human Development Report’ 2016.

[9] D Bradlow ‘Debt, Development, and Human Rights: Lessons from South Africa’ (1991) 12 Michigan Journal of International Law 647.

[10] N Villaroman, A Fate Worse than Debt: An Alternative View of the Right to Development and its Relevance in the External Debt Problem of Developing Countries, (November 10, 2010). Available at SSRN: https://ssrn.com/abstract=1895449 or http://dx.doi.org/10.2139/ssrn.1895449

[11] A Iyola ‘External debt and economic growth in sub-Saharan African countries: An econometric study’ AERC Research Paper 90 African Economic Research Consortium, Nairobi March 1999.

[12] S Michalowski ‘Sovereign Debt and Social Rights–Legal Reflections on a Difficult Relationship’ (2008)8 Human Rights Law Review 35.

[13] M Dowell ‘The Sovereign Bond Markets and Socio-Economic Rights: Understanding the Challenge of Austerity’ in M Dowell et al Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges (2014) 51.

[14] K Rittich ‘Social Rights and Social Policy: Transformations on the International Landscape’ in D Barak Erez and AM Gross (eds), Exploring Social Rights: Between Theory and Practice (2007), 107.

[15]Ratification Status for Gambia see: http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=64&Lang=EN.

[16] P Alston and G Quinn, 'The Nature and Scope of States Parties' Obligations under the International   Covenant on Economic, Social and Cultural Rights' (1987) 92 Human Rights Quarterly 156.

[17] International Covenant on Civil and Political Rights (ICCPR), UNGA 2200A (XXI) 16 December 1966 and came into force in 1976.

[18] P Hunt ‘Reclaiming Social Rights: International and Comparative Perspectives’ (1996) 21 Human Rights Quarterly 53-54. Hunt argues that the differences constructed between ESCRs and civil rights are just manifestation of ideological differences than differences between the rights.

[19] The Optional Protocol to the ICESCR into force in 2013 and it permits groups and individuals to submit complaints to the UN CESCR. It provides for Inter State Communication, Individual Complaint Procedure and Inquiry Procedure.

[20] Art 2(1) of ICESCR.

[21] The ICESCR guarantees the rights to Self-determination (Art.1); Right to work (Art.6); Right to favourable conditions of work (Art.7); Right to join trade Union (Article 8); Right to Social Security and Insurance (Art.9); Right to Family Assistance; Right to Adequate Standard of Living (Art.11); Right to Health (Art.12); Right to Education (Art.13); Compulsory Primary Education (Art.14)   and Right to Cultural Rights (Art. 15).

[22] CESCR, The Nature of States Parties Obligations UN Doc E/1991/23 1 January 1991para. 9 General Comment No. 3.

[23] General Comment No.3 (n 22) para 9.

[24] General Comment No. 3 (n 22 above) para 5. These provisions are: articles 3, 7 (a) (i), 8, 10 (3),13 (2) (a), (3) and (4) and 15 (3).

[25] Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights 25 June 1993 (A/CONF.157/23.

[26] S Liebenberg ‘Participatory Approaches to Socio-Economic Rights Adjudication: Tentative  Lessons from South African Evictions Law’ (2014) 32 Human Rights Quarterly 312.

[27] (2000) AHRLR 74 (ACHPR 1995).

[28] (2000) AHRLR 74 (ACHPR 1995) para. 47 and 48.

[29] (2000) AHRLR 18 (ACHPR 1997).

[30] (2000) AHRLR 18 (ACHPR 1997) para 17.

[31] (AHRLR 60 (ACHPR 2001)

[32] (2003) AHRLR 96 (ACHPR 2003).

[33] (2003) AHRLR 96 (ACHPR 2003) para. 42.

[34] UN General Assembly Guiding principles on foreign debt and human rights A/HRC/20/23 April 2011.

[35] Human Rights Council Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights on his mission to Greece, 2016.

[36] UN General Assembly (n 34 above)

[37] C Tan ‘Life, Debt and Human Rights: Contextualising the International Regime for Sovereign Debt Relief Legal Studies Research Paper No. 2011-09.

[38] Tan (n 37 above) p 3.

[39] Tan (n 37 above) p7. 

[40] Tan (n 37 above) p4.

[41] M Langford ‘Keeping Up with the Fashion: Human Rights and Global Public Goods’ (2009) 16 International Journal on Minority and Group Rights 165–179.

[42] Langford (n 41 above) 169.

[43] Republic of Argentina v. NML Capital, Ltd., 573 U.S. (2014).

[44] J Rossi ‘Sovereign Debt Restructuring, National Development and Human Rights’ (2016) 13 SUR International Journal on Human Rights 185 – 196.

[45] ‘Tough Judge Thomas Griesa weighs Argentina’s fate’ Financial Times 31 July 2014.

[46] Rossi (n 44 above) 189.

[47] M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (eds) Making Sovereign Financing and Human Rights Work (2014) 150.

[48] M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (n 47 above).

[49] M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (n 47 above) at p.6.

[50] M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (n 47 above) at p.6.

[51] R Ordu ‘Debt and the Realization of Economic and Social Rights in Sub-Saharan Africa: Beyond Debt Relief to Solutions in the Common Interest’ (2008) 3 Intercultural Human Rights Law Review 229.

[52] Lagos Plan of Action for the Economic Development of Africa, 1980-2000.

[53] Ordu (n 51 above) p 269.

[54] OAU AHG/Res. 185. (XXV) (July 24-26, 1989)

[55] Ordu (n 51 above) p 254.

[56] Ordu (n 51 above) p 294.

[57] C Barry ‘Sovereign Debt, Human Rights, and Policy Conditionality’ (2011) The Journal of Political Philosophy.

[58] Barry (n 57 above) p 14.

[59] R Swaminathan ‘Regulating Development: Structural Adjustment and the Case for National Enforcement of Economic and Social Rights’ (1998) 37 Columbia Journal of Transnational Law 161.

[60] Swaminathan (n 59 above) p 163.

[61] Swaminathan (n 59 above) p 168.

[62] C Kutz ‘Responsibility Beyond Law’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 64.

[63] C Kutz ‘Responsibility Beyond Law’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 69.

 [64] A Follesdal ‘Human Rights Investment Filters: A Defence’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 132.

[65] O Mestad ‘Attribution of Responsibility to listed Companies’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 79.

[66] O Mestad ‘Attribution of Responsibility to listed Companies’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 83.

[67] F Viljoen International Human Rights Law in Africa (2013) at 546.

[68] F Viljoen ‘National Legislation as a Source of Justiciable Socio-economic Rights’ (2005) 6 ESR Review 7.

[69] F Viljoen (n 68 above) p 6.

[70] Article 4 of the 1997 Constitution of the Gambia.

[71] Articles 22, 25(e) and 30 of the 1997 Constitution of the Gambia respectively.     

[72] Chapter XX, Directive Principles of State Policy: Social and Economic Objectives 1997 Constitution of the Gambia.

[73] Article 37(8) of the 1997 Constitution of the Gambia reads: ‘The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded excluding other rights which may be prescribed by an Act of the National Assembly as inherent in a democracy and intended to secure the freedom and dignity of man.’

[74]Article 211(a)(b) of the 1997 Constitution of the Gambia.

[75] Article 211(a) of the 1997 Constitution of the Gambia.

[76] National Plan of Action for Accelerated Abandonment of Female Genital Mutilation 2013 2017; National Nutrition Policy 2010–2020 and the establishment of the National Nutrition Agency; National Education Policy 2004–2015 and the National Development Plan 2017-2020.

[77] CESCR, The Nature of States Parties Obligations UN Doc E/1991/23 1 January 1991,para. 9 General Comment No. 3.

[78] General Comment No.3 (n 22 above) para 9.

[79] General Comment No. 3 (n 18 above) para 5. These provisions are: articles 3, 7 (a) (i), 8, 10 (3),13 (2) (a), (3) and (4) and 15 (3).

[80] The Gambia: Poverty Reduction Strategy Paper IMF Country Report No. 07/308 September 2007.

[81] Appropriation Bill, 2018.

[82] African Summit on HIV/AIDs, Tuberculosis and other related Infectious Diseases, Abuja Nigeria OAU/SPS/ABUJA/3, 2001.

[83] WHO Gambia I Biennial Report I 2014-2015.

[84] The Declaration on the Right to Development adopted by the UN General Assembly Resolution 41/128 1986.

[85] D Kampel ‘Sovereign debt restructuring and the right to development: Challenges from an incomplete framework’ (2017) 1 Global Campus Human Rights Journal 1-16.

[86] (2001) AHRLR 60 (ACHPR 2001) para 44.

[87] (AHRLR 60 (ACHPR 2001). 

[88] A Sen Development as Freedom (1999).

[89] Sen (n 87 above) p 15.

[90] M Lagum It Doesn't Have to be Like this: Global Economics: a New Way Forward (2001) at 17.

[91] UN Monterrey Consensus of the International Conference on Financing for Development, Monterrey Mexico 2002.

[92] Report of the independent expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights A/HRC/11/10 3 April 2009. 

[93] General Comment No.3 (n 22) para 9.

[94] General Comment No.3 (n 22) para 9.

[95] Article 37 of the 1997 reads ‘ If any person alleges that any of the provisions of section 18 to 33 or section 36 (5) of this Chapter has provisions been, is being or is likely to be contravened in relation to himself or herself by any person he or she may apply to the High Court for redress.’

[96] See Jammeh v Attorney-General (2002) AHRLR 72 (GaSC 2001); Sabally v Inspector General of Police and Others (2002) AHRLR 87 (GaSC 2001); Denton v The Director-General, National                  Intelligence Agency and Others (2006) AHRLR 241 (GaHC 2006). 

[97] National Human Rights Commission Bill, 2017.

[98] General Comment No. 10: The role of national human rights institutions in the protection of economic, social and cultural rights, December 1998, Committee on Economic, Social and Cultural Rights E/C.12/1998/25.

[99] UN Committee on Economic, Social and Cultural Rights: The Role of Independent NHRIs in the Protection of and Promotion of Rights of the Child (15/11/2002) CRC/GC/2002/2.

[100] Suit No. ECW/CC/APP/0808 27 October 2009.

[101] Rul. No: ECW/CCJ/APP/07/10 para 61.

[102] (2000) AHRLR 74 (ACHPR 1995), (2000) AHRLR 18 (ACHPR 1997), (AHRLR 60 (ACHPR 2001)(2003) AHRLR 96 (ACHPR 2003) (n 21,22, 23 and 24 above).

[103] Viljoen (n 68) p 349.

[104] Viljoen (n 68) p 350.

[105] Viljoen (n 68) p 353.

[106] The Optional Protocol to the ICESCR GA Res 63/117, UNGAOR, 63D, Supp No 49 UN Doc A/RES/63/117 (2008).

[107] M Langford ‘Substantive Obligation’ in B Porter et al The Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary (2016) 1-15.

 

 

Legal Framework for Recovery of Proceeds of Crime in Nigeria and Gambia: A Critique 

By Okorie Chimezie Kingsley (PhD), the Head of Department of Public Law, Faculty of Law, Imo State University Owerri, Imo State, Nigeria.

Abstract

Recovery of proceeds of crimes has become a pressing issue for many states, especially for the developing countries, as it is in the developing countries that high levels of crime have plundered their nation’s wealth. This development has necessitated the realization that any mechanism put in place for prevention, detecting and prosecution of crime without a corresponding framework for recovery of proceeds of crime is an exercise in futility. Incidentally in Nigeria and Gambia, legal frameworks for recovery of proceeds of crime are put in place, but a close examination reveals that recovery is cosmetic in content and duplicative in scope. Thus, most of provisions of the laws in this regard are not proactive in character, and not in tune with the modern regime for recovery of proceeds of crime. This gave rise to this work which is comparative based, with a conclusion that legal frameworks for recovery of proceeds of crimes in Nigeria and Gambia are inadequate and this encouraged the age-long tradition of looting public funds with impunity. It is suggested amongst others that laws on recovery of proceeds of crime should be adjusted to incorporate the principle to the effect that the onus does not lie on the agency to prove that the property of that person is a proceed of crime or unlawful activity but that the lifestyle of the person or members of his family or close associates shows that he is enjoying resources above his legitimate and known income. It is now left for the person to justify his lifestyle. This is the principle of illicit enrichment.

Introduction

Since independence till date, recovery of proceeds of crime has been a recurrent challenge to Nigeria and Gambia. Successive governments have put in place various mechanisms, measures and programmes to tackle this challenge, yet no significant progress has been made. The current administration in Nigeria is battling to ensure that Proceeds of Crime Bill, 2017[1] becomes law so that it will complement pre-existing regimes on the crusade against this challenge. Incidentally, the Proceeds of Crime Bill 2017 has attracted a lot of criticisms,[2] which questions its efficacy. In Gambia, the current administration of President Adama Barrow is still swimming under the promise of doing everything possible to recover the assets and stolen funds during former President Yahya Jammeh’s twenty-two-year rule.[3]

The source of this development is not farfetched, because a close survey of the legal frameworks for recovery of proceeds of crime in Nigeria and Gambia shows that same is structurally defective which affects its potency.[4] This structural defect may generally be attributed to the following:

  1. The absence or weakness of the political will on the Government;
  2. The lack of an appropriate and solid legal framework to allow for related action of an efficient and effective sort;
  3. The lack of specialized technical expertise to deal with pertinent cases, including by means of filing charges against the perpetrators and preparing mutual legal assistance request and;
  4. Difficulties encountered in improving the national institutional infrastructure and anti-corruption legislations in which the recovery effort is pursued;
  5. Lack of comprehensive law which is proactive in character in recovery of proceeds of crimes.[5]      

This development calls for an urgent re-assessment of the regimes for recovery of proceeds of crime, using the United Nation’s framework as a starting point. This is the crux of this work. 

United Nation’s Framework for Recovery of Proceeds of Crime

The United Nations General Assembly, while considering the resolution[6] for negotiating the United Nations Convention Against Corruption[7] also considered a draft resolution from Nigeria on behalf of the Group of 77 and China, on the illegal transfer of funds and the reparation of such funds to their countries of origin.[8] Though the draft resolution first called for negotiation of a separate instrument on that subject, it was included in the draft terms of reference of the Ad hoc Committee for the negotiation of United Nations Convention Against Corruption.[9] During the negotiation, the sensitive and complex nature of the asset recovery became evident. There was intense debate on how to reconcile the needs of the countries seeking the return of the assets with the legal and procedural safeguards of the countries whose assistance is needed.[10]

The need for a provision on asset recovery was in United Nations Convention Against Corruption (UNCAC) strengthened by the United Nations Security Council resolution deciding that all United Nation member states should take steps to freeze funds removed from Iraq, and immediately transfer them to Iraq.[11] In the end, a full chapter of the convention was devoted to asset recovery.

The provisions on asset recovery were indeed a breakthrough in the international fight against corruption, and were considered as fundamental principle of the UNCAC.[12] The importance of this provision could never be overstated. The United Nations Office on Drugs and Crime (UNODC) remarked as follows;

This is a particularly important issue for developing countries where high-level corruption has plundered the national wealth, and where resources are badly needed for reconstruction and the rehabilitation of societies under new governments. Reaching agreement on this has involved intensive negotiations, as the needs of countries seeking illicit assets had to be reconciled with the legal and procedural safeguards of the countries whose assistance is sought.[13]

The preamble to the UNCAC emphasizes that the State parties to the convention are determined to prevent, detect and determine in more effective manner international transfer of illicitly acquired assets and the State parties shall afford one another the widest measure of cooperation and assistance in this regard. Chapter V – titled Asset Recovery of the UNCAC – set three procedures and conditions for asset recovery. It requires three measures to be undertaken by the States. They are:

  1. Measures for direct recovery of property;
  2. Mechanisms for recovery of property through international cooperation in confiscation and
  3. Return and disposal of assets.[14]

With regards to the first measure mentioned above, that is, prevention and detection of transfers of proceeds of crime,[15] States parties must require financial institutions within their domestic jurisdiction to:

  1. Verify the identity of customers;
  2. Take reasonable steps to determine the identity of beneficial owners of funds deposited into high-value accounts and,
  3. Scrutinize accounts maintained by or on behalf of individuals entrusted with prominent public functions, their family members and close associates.[16]

Such enhanced scrutiny shall reasonably be designed to detect suspicious transactions for reporting to competent authorities and should not be so construed as to discuss or prohibit financial institutions from doing business with any legitimate customer.[17] The State parties must also prevent the establishment of banks that have no physical presence and that are not affiliated with regulated financial groups.[18]

The State parties must also consider establishing disclosure systems for appropriated public officials by permitting their competent authorities to share that information with authorities in other State parties.[19] However, this requirement is optional. More so, measure for direct recovery of property[20] requires State parties to undertake three specific measures, in accordance with domestic law:

  1. To permit another state party to initiate civil action in its courts to establish title to or ownership of property acquired through the commission of an offence;[21]
  2. To permit its courts to order to pay compensation or damages to another State party that has been harmed by such offence;[22]
  3. To permit its courts to recognize another State party’s claim as a legitimate owner of property acquired through commission of an offence.[23]

The convention also provides mechanisms for recovery of property through international cooperation in confiscation.[24] The State parties shall take measures:

  1. To permit its competent authorities to give effect to an order of confiscation issued by a court of another party;[25]
  2. To permit its competent authorities, where they have jurisdiction, to order the confiscation of such property of foreign origin by adjudication of an offence of money laundering.[26]

For this purpose, each State party shall permit its competent authorities to freeze or seize property and upon freezing or seizure, order issued by a court or competent authority of a requesting State party that provides a reasonable basis for the requested State party to believe that there are sufficient grounds for taking such action and that the property would eventually be subject to an order of confiscation.

A request from another State party for confiscation of proceeds of crime, property, equipment or other instrumentalities shall be given effect to the greatest extent possible.[27] The requested State party shall take measures to identify, trace and freeze or seize proceeds of crime, property, equipment or other instrumentalities. The copies of its laws and regulations, and subsequent changes if any that give effect to this article shall be furnished to the Secretary-General of the United Nations.[28]

If a State party elects to make the taking of the measures conditional on the existence of a relevant treaty, that State party shall consider this convention as the necessary and sufficient treaty basis. Cooperation may be refused or provisional measures lifted if the requesting State party does not react sufficiently or lack of timely evidence or if the property is of de minimis value.[29] In case of lifting of any provisional measures, the requesting State party shall be given an opportunity to present its reasons in favour of continuing the measure. This provision shall not be constructed as prejudicing the rights of bona fide third parties: property confiscated by a State party shall be disposed of including by return to its prior legitimate owners. It shall enable competent national authorities to return confiscated property when acting on the request made by another State party.[30]

Furthermore, the requested State party shall, in the case of embezzlement of public funds or laundering of embezzled public funds when the confiscation was executed in accordance with article 55 of the UNCAC and on the basis of a final judgment in the requesting State party, return the confiscated property to the requesting State party.[31] State parties shall consider establishing a financial intelligence unit responsible for receiving, analysing and disseminating to the competent authorities reports of suspicious financial transaction.[32]

It is said that though the UNCAC, may not signify a conceptual revolution on recovery of assets, it may signify the fullest possible extension of ideals and legal practices coined along the last fifteen years.[33] It provides a consolidated framework in which there is no room for legal obstacles that, inhibits those proceedings. However, the effectiveness of this provision depends on individual jurisdictions, court and civil societies. Thus, this leads to examination of the Nigerian and Gambian frameworks.

Nigeria

A close examination of the Nigerian legal system reveals that Nigerian legal framework for recovery of proceeds of crime is scattered in various Acts of the National Assembly.[34] Thus, there is no statute specifically designated for recovery of proceeds of crime, as seen in some jurisdictions.[35] This arrangement makes it very difficult to mirror at a glance the mechanism for recovery of proceeds of crimes in Nigeria. Hence, the legal framework in this regard is disorganized but be that as it may, we shall attempt to locate some for a discussion.

The principal enactments for the recovery of proceeds of crimes in Nigeria are Economic and Financial Crime Commission (Establishment) Act,[36] and Independent Corrupt and Other Related Offence Act[37] of which the discussion whereof shall substantially be on same. The EFCC Act and Corruption Act provide for criminal conviction mechanism for the recovery of proceeds of crimes.[38] They make provisions for three stages necessary for successful recovery of proceeds of crimes, namely investigative measures to trace the assets, preventive measures to immobilize the asset that is freezing or seizing and confiscation, return and disposal.[39]

Under the investigation to trace the asset, section 28 of the EFCC Act provides: Where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as result of such economic or financial crime and shall thereafter cause to be obtained an interim attachment order from the Court.[40]

From the above, investigation shall commence only when an accused is arrested for an offence under the EFCC Act. Thus, arrest is a condition precedent for investigation which will lead to tracing and attaching of the property acquired as result of such crime. This arrangement is not balanced, thus, investigation, tracing of assets should immediately commenced upon reasonable suspicion of commission of the offence under the EFCC Act. At the point of arrest, the Commission must have gathered sufficient evidence pointing to prima facie case against the accused. Arresting before commencing investigation is absurd as there is no foundation or basis for the arrest. It is the result of investigation that will provide sufficient plank for arrest. This is in line with the standard under the UNCAC which makes rich pronouncement for verification of identity of the customers and ownership of the assets or funds with regards to financial institute.[41] Incidentally, the Nigerian Court of Appeal in the case of Ukiri V Economic Financial Crimes Commission[42] realizing this defect while interpreting section 28 of the EFFC Act held that Arrest in the section includes Invitation hence the Commission can seize assets upon inviting the accused for investigation. This interpretation cannot stand for there is world of difference between Arrest and Invitation, therefore section 28 should be amended in that regard.[43]

Section 29 of the EFCC Act mandates the commission to approach the Court via Ex-parte application for interim order forfeiting the attached property. The Court can only make the order where there is prima facie evidence that the property attached is liable for forfeiture.[44] This provision raises certain issues. Firstly, what is the basis or justification for the interim order over assets already attached or seized by the Economic Financial Crimes Commission? The Commission pursuant to section 28 of the EFCC Act attaches the property primarily to safe guide same which is the purpose the interim order is meant to serve.[45] Perhaps, the interim order is only designs to give judicial stamp to the already safe guided property, thereby passing vote of no confidence in the Commission attachment.

Secondly, what type of evidence will the Commission present in the ex-part application, bearing in mind that investigation and attachment started immediately after arrest and Commission is required immediately to do so for interim order having regard to section 28 of the EFCC Act? The truth is that the evidence supporting the application ought to be a product of thorough investigation rather than product of suspicion. Thirdly, the EFCC Act did not provide what will be the fate of the attached property where the court declined to make interim order having regard that the interim order is discretionary.[46]

Reasonably, the Commission is required to release the property to the owner, but it does not end there. The owner has the right to maintain civil action against the Commission.[47] The Commission cannot rely on section 28 of the EFCC Act as a defence especially, where no iota of justification exists for the attachment.[48] Incidentally, there is no provision for interim order under the Corruption Act and this is a welcome development.

Furthermore, after the interim order, the law requires that the person arrested or invited be prosecuted and if convicted, the court will make final order of forfeiture, following the application of the commission in that regard.[49] Hence, the Commission shall take steps to dispose the asset, and proceeds therefrom shall be paid into the Federal Government Account.[50] But where the person is discharged, the court will make an order revoking the interim order to enable the owner have his property. However, section 33 (2) of the EFCC Act provides that property may be attached where a person is merely discharged on technical ground. This infringes on the right to own property guaranteed under section 43 of the 1999 Constitution (as amended) of the Federal Republic of Nigeria. This is more so, as the person is deemed to be innocent of the allegation, therefore, there is no justification in law why his property should not be released to him upon his discharge irrespective of the ground of the discharge.[51]

It should be noted that the Nigerian courts have invented the practice of making final order of forfeiture where no trial was conducted, let alone the person convicted relying on EFCC Act. This practice is condemnable and cannot pass the test of International Practice as seen in United Nations Conviction Against Corruption. Final forfeitures order without trial is mockery of presumption of innocence guaranteed by Nigerian Constitution where there is no provision under EFCC Act authorizing same. Therefore, Nigerian courts are urged to have a re-consideration of this practice in the interest of global justice for humanity.[52]

However, under the Independent Corruption Practice and Other Related Offences Act, section 48 provides for forfeiture of property where there is no prosecution of an offence or conviction.[53] Thus, the chairman of the commission may before expiration of twelve months from the date of seizure apply to court for forfeiture order for assets obtained as result of or in connection with an offence under the Act. The court should direct to be published a notice in the Gazette and in at least two newspapers which shall be in English language calling upon any person who claims to have interest in the property to appear before the court to show course why the property should not be forfeited to the Government. Where cause is shown to the satisfaction of the court, the property shall be released to the person otherwise, the property shall be forfeited to the Government. This is better practice. 

Foreign assets are not immune from investigation, freezing and forfeiture. Thus, where it is established that any person convicted has assets in a foreign country acquired as result of such economic or financial crime, such assets subject to any treaty or arrangement with such foreign country shall be forfeited to the Federal Government of Nigeria.[54] Where there is no treaty or arrangement, it is submitted that reliance will be placed in United Nations Conviction Against Corruption for co-operation so that assets are effectively transferred and vested in the Federal Government. Also, where the Commission has evidence that any property is the subject-matter of an offence under this Act or was used in commission of the offence, and such property is held or deposited outside Nigeria, the Commission may make an application by way of an affidavit to a Judge of the High Court for an order prohibiting the person by whom the property is held or with whom it is deposited from dealing with the property.[55] 

Another recovery mechanism can be seen in Recovery of Public Property (Special Provisions) Act[56] which empowers the President to constitute a panel to investigate the assets of public officers acquire corruptly or following abuse of office.[57] The Act provides as usual for conviction recovery regime which a convict will forfeit the assets connected with the commission of the offence to the Federal Government.[58]

Provision of section 3 (3) of the Act[59] is worrisome. It provides that any person who without reasonable recue refuse or neglects to declare his assets as required by the Property Act or who makes false declaration shall be guilty of an offence and liable for conviction to imprisonment of a term of not less than five years without option of fine and any undeclared assets whether they are in his name or under him be forfeited to the Federal Government. This provision is too harsh. The object of the Property Act as deciphered from its preamble is not to take away peoples’ property at all cost rather to ensure that property acquired corruptly or unjustly is disposed from the officer. Therefore, to ask a person to forfeit his property to the Federal Government merely because he refused to declare same without first ascertain whether the undeclared property or falsely declared property is a product of corrupt practices or illicit enrichment defeats the object of the Act. More so, it should be noted that section 43 of the Constitution gives the person right to own property and failure to declare same is not enough ground to deny him that right.[60] 

The Panel set up by the President pursuant to Recovery of Public Property (Special Provisions) Act was constituted on August 2017, headed by Okoli Obono-Obia. After three months of existence, the President suspended further activities of the panel following the observation of the Vice President that the activities of the panel run counter to terms of its reference. The alleged activities of the panel has been credited to the  Okoli Obono-Obia’s criticism of the Economic Financial Crime Commission in investigation  of Abdulrasheed  Maina that he had not been found culpable  in any wrong doing, in what seemed like a tacit defence of the fugitive who has been on the wanted list of EFCC for years.[61] This is clear indication of the executive interference indicating the power given to the president to constitute the panel under the Act needs to be amended removing the powers giving same to the Chief Justice of the Federation.[62]

Another statute worthy of consideration is Currency Conversion (Freezing Orders) Act.[63] Thus, section 9 empowers the president to direct that any account or property movable or immovable of any person connected with irregular payment or operation or transaction or currency conversion with any bank be forfeited to the federal government. It is even an offence for any person to fail or refuse or neglect the forfeiture order of the president.[64]

This power given to the president to make forfeiture order under the Act elevated the president to a Court. This is so because there is no provision in the Act that subject the forfeiture order of the president for a review or validation of the Court. Again, it makes provision for forfeiture order without giving the affected person(s) opportunity to defend or show cause why the order should not be made.[65] Furthermore, there is no trial or conviction upon which the forfeiture order of the President can stand. Thus, the Act provides for non-trial forfeiture regime. Therefore, it is submitted that the whole arrangement for non-trial forfeiture mechanism provided for by the Act offends the section 36 of the 1999 Constitution[66] as amended which guarantees fair hearing, and same cannot stand.

Administration of Criminal Justice Act 2015(ACJA)[67] provides for forfeiture mechanism. Thus section 330 of the ACJA empowers the court to make order for a proper custody or selling of the property if the need arise where the property in question is connected to the alleged offence, and attention of the court was draw to same.[68] Furthermore, by virtue of section 346 of the ACJA,[69] an article not pecuniary forfeited in respect of a summary conviction offence or the seizure, forfeiture or disposition of which may be enforced by the court may be sold or disposed of in such manner as the court may direct, and the proceeds of the sale shall be applied in the like manner as if the proceeds were a penalty imposed under the law on which the proceedings for the forfeiture is founded. The only challenge in this section is that it is limited, thus pecuniary article that is monetary in character is outside the purview of the court. This limitation uncalled for.

From the foregoing, it is evident that in Nigeria there is no civil forfeiture mechanism or non-conviction regime for the recovery of the proceeds of crimes. This development led to the Proceeds Crime Bill currently at the floor of the National Assembly. Though the said Bill is not yet a law that may warrant its discussion, but the importance of the Bill to the development of Nigerian Criminal Justice System warrants its discussion to properly guide the Parliament to make the necessary adjustments before it is passed into law.[70]

Proceeds Crime Bill

The Bill is divided into 12 Parts. Part 1 which contains sections 1 and 2 deals with objectives and application. Civil Procedure which encompasses sections 3 to 25 makes up Part 11. Part 111, which is sections 26 to 29 deals with additional investigation powers relating to civil recovery while Part IV deals with recovery of imported or exported cash covering sections 30 to 38. Criminal forfeiture and confiscation forms Part V which spans from sections 39 to 95. Part VI deals with proceeds of crime recovery and management agency in section 96 to 109. Investigation, Search and Seizure is Part VII which encompasses sections 110 to 135. Part VIII is the Administrative Powers of the Agency made up to sections 136 to 145. Part IX in sections 146 to 150 is Confiscated and Forfeited Properties Account while Jurisdiction of Court and General Provisions Relating to Legal Proceedings in sections 151 to 160 is Parts X and XI respectively. The last is miscellaneous which Part XII in sections 161 to 164.[71]

The Bill seeks to make comprehensive provisions for the confiscation, forfeiture and management of properties derived from unlawful activities. The objectives of the Bill are;

  • To provide for an effective legal and institutional framework for the recovery and management of the proceeds of crime or benefits derived from unlawful activities;
  • To deprive a person of the proceeds of an unlawful activity, instrumentalities of an offence and any other benefit derived from an offence committed within or outside Nigeria.
  • To prevent the re-investment of proceeds of unlawful activity in the furtherance of criminal enterprise;
  • To harmonize and consolidate existing legislative provision on the recovery of proceeds of crime.
  • To make comprehensive provisions for the restraint, seizure, confiscation and forfeiture of property derived from unlawful activities.[72]

The Bill seeks to establish Proceeds of Crime Recovery and Management Agency which shall have the power to implement, enforce and duly administer the provisions of this Bill (when it becomes a law). According to Clauses 97, the Agency shall have the power to co-ordinate and enforce all other laws on the investigation, identification, tracing and recovery of the proceeds of unlawful activities, which is similar to section 7(2) of the EFCC Act. This constitutes a clear duplication of roles. Clause 101 of the Bill provides for 17 functions of the Agency, which are similar to the functions of the EFCC as provided under section 6 of the EFCC Act.[73] The functions under listed in the Bill are a compendium of what the Economic Financial Crimes Commission (EFCC), Independent Corrupt Practice Commission (ICPC) and other relevant security agencies of government working on eliminating criminal activities and managing their proceeds, are empowered to do. Hence, the establishment of another agency to add to the number is inapt and unnecessary.[74]

The Agency under Clause 98 of the Bill shall have a part-time Governing Board made up of a part-time Chairman and other members, who shall be representatives not below the rank of a Director from government bodies like the Ministry of Finance, Attorney General of the Federation, Accountant General of the Federation, EFCC, CBN, Nigeria Police, NDLEA et cetera. Given that these agencies from where these board members will be extracted are agencies collectively performing the functions that the proceeds of Crime Agency shall perform (when established), the arrangement amounts to a duplication of functions and clarifies why an additional agency is not needed.[75] 

One of the objectives of the Bills as seen above is to provide for an effective legal and institutional framework for the recovery and management of the proceeds of crime or benefits derived from unlawful activities. Incidentally, legal frameworks already exist in Nigeria, even though the effectiveness in relation to the management of proceeds of crime may be questionable. Several laws provide for the investigation and prosecution of crimes, offences and other unlawful activities, as well as management of their proceeds such as Economic and Financial Crimes Commission Act, Corrupt Practice and Other Related Offence (ICPC) Act and Currency Conversion (Freezing order) Act, et cetera.[76]

Clause 41 and 101(m) of the Bill provide for collaboration with international government in the recovery of funds and assets. This role has been covered in the Executive Bill recently passed by the Senate – Mutual Assistance in Criminal Matters Bill, which seeks to facilitate and obtain mutual assistance in criminal matters between Nigeria and other countries.[77] In addition, the EFCC Act under section 6(j) is empowered to collaborate with government agencies, both local and international in the matters concerning the movement of proceeds or properties derived from the commission of unlawful activities. This amounts to duplication.[78] Furthermore, the Bill seeks to prevent a person found guilty of a crime from the use of proceeds of the crime. To achieve this objective, the Agency to be established under this Bill, shall have the power to apply to the court for an order of forfeiture, restraint, seizure or freezing of accounts. The EFCC has the statutory power under section 20, 26(3) and 34 of the EFCC Act to carry out this function. Where an agency in existence is carrying out this function there is no need to duplicate it.[79]

The Bill seeks to amend certain provisions of the National Drugs Law Enforcement Agency Act (NDLEA), National Agency for the Prohibition of Trafficking in Persons Act (NAPTIP), and Corrupt Practice and Other Related Offence Act (ICPC). While amendments to these legislative provisions listed under Clause 162 of the Bill,[80] may be needed to increase the efficiency of the established government agencies, there is still no clarity on the need to establish an additional entity. However, the amendment seeking to strip the existing agencies of their powers, in other to provide the basis for establishing the proceeds of Crime Agency should be unwarranted and should be deleted from the Bill. The existing government agencies can be strengthened to be more effective and any gaps in the provisions of the Acts establishing them can be corrected with an amendment.[81]

In terms of the structure of the Bill, the provisions are structured in a cohesive and orderly form making it (the Bill) easy to comprehend; however, some of the stand clauses are similar and repetitious that they could have been consolidated rather than stand separately. For instance, Clause 10(2)(c), which provides for the custody of the immovable property without the consent of the court, is like Clause 10(5) in addition, Clause 30(1) and (2) provide for the same matter as well.[82]

Under the Bill, extensive provisions are made that utterly encroach on the privacy of citizens, protected under the Constitution. For instance, the powers of customer information that can be requested from companies whether incorporated in Nigeria or elsewhere give the court wide jurisdictional powers. In addition to this, a customer information order has effect despite any restriction contained in an enactment or otherwise on the disclosure of information Clause 130(1) closely related to this are the monitoring orders that can be imposed on one’s account. It is noteworthy that although monitoring orders can be given for a 90-day period, there is no limit on the number of times further applications can be made to extend the monitoring orders. The clause would have been clearer if it was stated that the renewal of the monitoring orders should be for the life of the case in court rather than being left open for various interpretation.[83]

Clause 151 gives the Federal High Court[84] powers to try offences and impose penalties irrespective of whether the offence was committed in Nigeria and completed outside Nigeria. It is wrong for to give Federal High Court powers to try offences and impose penalties committed outside Nigeria without qualification. It fringes on sovereignty of the other nations. There must be bilateral agreement between Nigeria and Nation in question for this clause to be meaningful.[85]

A careful perusal of the right to the Agency envisaged in what the Bill called Civil Forfeiture reveals that while proof of conviction is not necessary but proof of unlawfulness or criminality of the property attached is necessary. The onus lies on the Agency, though on a balance of probability to prove it and, by our principles of jurisdiction, all the defendant owner of the property needs to do is to introduce doubt and any doubt is resolved in favour of the accused/Defendant. This provision falls short of what is required to fight corruption for it failed to bring into the powers of the Agency, the power to investigate illicit enrichment.[86] 

Finally, it is submitted that the NDLEA, EFCC, ICPC, Customer Service, Police and several other relevant security agencies are enough to tackle crime and related matters, but they lack the strength and efficiency to do so. The solution should not be an additional agency, rather a strengthening exercise by the government with the assistance of the private sector, civil society, international partners and other stakeholders. Amendment to certain provisions of the legislations establishing them is one way to strengthen the existing agencies. The lacuna in the other legislations that are provided for extensively under the Bill can be inserted through the amendment.

It is not the dearth of law that makes it difficult to fight crimes in Nigeria; it is the implementation. It is baseless creating a new agency to duplicate the role of existing agencies; rather strengthening the existing agencies will make a positive impact. While the establishment of the special account at the Central Bank shall increase efficiency in the system, the establishment of additional agency shall add no value to fighting crime in Nigeria. It is therefore questionable whether the mischief that the proposed agency seeks to cure, cannot be achieved by strengthening already existing institutions; rather than making copious amendments to institutions currently empowered with the proposed mandate.

Gambia

In Gambia, there is no specific law specially enacted for the recovery of proceeds of crimes. Thus, certain provisions of the law are dedicated for recovery of proceeds of crime in few laws. Each provides for conviction forfeiture, and they have similar provisions with Nigerian Laws in this regard. Hence it is not intended to reproduce and analyses them having done so while discussing the Nigeria situation.

However, Gambia Anti Corruption Commission Act 2012 is worthy of discussion. It is divided into eight parts with fifty-eight sections. Part five is dedicated to Forfeiture of Assets of Person Convicted of Offence under the Act.  Section 34 provides:-  A person convicted of an offence under this Act shall forfeit to the Government all the assets and properties which may be or are the subject of an interim order of the court after an attachment by the commission.[87]

Incidentally, there is no provision under the Gambia Act that expressly authorizes the officers of the commission to bring applicant for interim attachment in appropriate circumstance. Also, there is no corresponding provision empowering the court to make an interim order. Therefore, where lies the legal framework of interim order of attachment upon which the court on conviction can order for forfeiture of the assets to the Government. This is so because in the absence of interim order of attachment, the Court will have nothing to order for its forfeiture in favour of the Government. This makes Section 34 of Gambia Act meaningless.

The title of section 46 of the Gambia Act to wit, Forfeiture of Property Upon Prosecution for an Offence appears to have solution to short fall of section 34 but the contents worsens the situation.[88] It empowers the court in prosecution of an offence, to make an order for the forfeiture of any property which is proved to be subject matter of the offence or to have been used in the commission of the offence where the offence is proved against the accused, or the offence is not proved against the accused but the court is satisfied that the accused is not the true  and lawful owner of such property, and that no other person is entitled to the property as purchase in good faith for valuable consideration.        

This does not provide for power to make interim order upon which final forfeiture order will stand under section 34. It is submitted that section 46 is wider to cover section 34, therefore section 34[89] should be deleted with its shortfalls.

Another Act worthy of brief discussion is the Money Laundering Act 2003 of Gambia. The Act is divided into seven parts with thirty-six sections. Part five is dedicated to freezing and forfeiture of assts in relation to money laundering. Section 28 provides:

(1) The High Court may, on application by the competent authority, by order, freeze the property in the possession or under the control of a person wherever it may be, if the Court is satisfied that a person has been charged or is about to be charged with a money laundering offence.

(2) The High Court may, in making any order freezing the property of that person, give directions for the disposal of that property for the purpose of

(a) Determining any dispute as to the ownership of the property or any part of it;

(b) Its proper administration during the period of freezing; 

(c) The payment of debts due to creditors prior to the order; or

(d) the payment of moneys to that person for the reasonable subsistence of that person and his or her family.

(3) An order made under this section shall cease to have effect at the end of the period of three working days following the time the order was made if the person against whom the order was made has not been charged with a money laundering offence within that time.[90]

This provision is sound in the sense that it takes care of the shortfall of the section 34 of Gambian Anti- Corruption Commission Act as pointed out above. Again, its beauty lies in the fact that the life span of the order made pursuant to it, is three working days if the person against whom it is made has not been charged. This will checkmate the law enforcement agencies in bringing frivolous application before the court and as well as to compel them to be sure of their evidence before the application is made.

By Section 29,[91] the Court is empowered upon convicting the accused to make an order that property or proceeds derived from or connected or related to the offence be forfeiture and disposed of in such manner as the Secretary of State may direct. Thus, when as result of any act or omission of the person convicted, any property or proceed cannot be forfeiture, the court shall order the forfeiture of any other property of the person convicted for an equivalent value or the person convicted to pay fine to the equivalent value.[92] This provision is good in the sense that corrupt officers who feel that they are smart cannot escape justice even when they have made it difficult for court to access the assets connected to the offence upon which they are convicted. It should be noted that section 30[93] gives the opportunity to any person claiming ownership of the property or proceeds in question to claim same.   

Lessons from the United Kingdom

There is no doubt that the greatest problem of Nigeria and Gambia is corruption, which is a major impediment to the rule of law. Corruption is not only a predicate offence for other crimes, but also the biggest impediment to the implementation of counter measures against other crimes, thus, it produces and protects other crimes. Corruption in developing countries also impairs economic development by transferring large sums of money in precisely the opposite direction to what is needed. Funds intended for aid and investment instead flow quickly back to the accounts of corrupt officials, which are maintained in banks in stable and developed countries, beyond the reach of official seizure and the random effects of the economic chaos generated by corruption at home. The reverse flow of capital leads in turn to political and economic instability, poor infrastructure, education, health and other services, and a general tendency to create or perpetuate low standards of living. Some of these effects can be found in industrialized countries, although here, the ability of various infrastructures to withstand, (and in some cases combat), corruption is greater.[94] In efforts to combat corruption, certain claims about corruption in developing countries are often given to justify the inadequate capacity, and these include excuses such as that corruption is everywhere, the costs of combating corruption are prohibitively high, and resource are limited and there are competing priorities.[95]

Thus, if we are serious about fighting corruptions, we must study and emulate the style of those countries in which corruption is no longer a national problem.  United Kingdom is a good example. In the United Kingdom, assets forfeiture proceeding is initiated under the Proceeds of Crime Act 2002.[96] These fall into various types. Firstly, there are confiscation proceedings, which may follow a criminal conviction. Secondly, there are civil forfeiture proceedings, which take place (in England and Wales) in the magistrate Court with a right of appeal to the Crown Court, having been brought by either the police or customs. Thirdly, there are civil recovery proceedings that at the moment are brought by the Assets Recovery Agency. Under the Serious Crime Act 2007, the ARA’s functions have been transferred to the Serious and Organized Crime Agency and the National Policing Improvement Agency.[97] Neither cash proceedings nor proceedings for a civil recovery order require a prior criminal conviction. In Scotland, confiscation or forfeiture proceedings are initiated by the Procurator Fiscal or Lord Advocate through the Sheriff Court or High Court of Judiciary. Cash forfeiture and civil recovery are brought by the Civil Recovery Unit of the Scottish Government in the Sheriff Court, with appeals to the Court of Session[98].

In the United Kingdom, Confiscation orders cannot proceed without due legal process and at the direction of the courts. The Proceeds of Crime Act for example provides that: The Crown Court must proceed under this section if the following two conditions are satisfied:

 The first condition is that a Defendant falls within any of the following paragraphs:

  1. He is convicted of an offence or offences in proceedings before the Crown Court.
  2. He is convicted to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act;
  3. He is convicted to the Crown Court in respect of an offence or offences under section 70 below (convicted with a view to a confiscation order being considered).

The second condition is that:

  1. The prosecutor or the Director asks the court to proceed under this section, or
  2. The court believes it is appropriate for it to do so.

 The Court must proceed as follows:

  1. It must decide whether the Defendant has a criminal lifestyle;
  2. If it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;
  3. If it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.[99]

Conclusion

Thus, all that is needed for the recovery agency to prove is that the life style of that person is above his income. The onus now shifts on that person to prove how he legitimately made his wealth. The onus does not lie on the agency to prove that the property of that person is a proceed of crime or unlawful activity but that the lifestyle of the person or members of his family or close associates shows that he is enjoying resources above his legitimate and known income. This is the principle of illicit enrichment and without enshrining it into our Bill the effort will not go far enough.

Footnotes

[1] The Bill seeks to make comprehensive provisions for the confiscation, forfeiture and management of properties derived from unlawful activities: Policy and legal Advocacy Centre, Observations on the Proceeds of Crime Bill, 2017 (SB376), placing.org/wp/wp/-content/oploads/2017/06/observation-on-the-proceeds-of—crime, accessed in 3/1/2018.

[2] Ibid

[3] Mustapha K, “Gambian President Pledges to Recover Stolen Assets”, https://aa.com.tr, accessed on 2/3/2018.

[4] Ibid.

[5] Ibid.

[6] UNGA Resolution 55/61 2001.                 

[7] Hereinafter referred to as UNCAC

[8] This, it should be noted facilitated the reparation of Late Sani Abacha loot to Nigeria by Swiss Government.

[9] Dimitri V, “he Negotiation of the Draft United Nations Convention against Corruption” Forum on Crime and Society, vol 2 No 1, December 2002, 154. Hereinafter referred to as UNCAC.

[10] At the first session, Group of 77 and China, EU, Africa and Latin America stressed the need for a provision in this regard. United States also supported the initiative. At the first session of the Ad Hoc Committee, it was decided to organize a one-day technical workshop on asset recovery during the second session of the Ad Hoc Committee. The major themes for the workshop were; Transfer abroad of funds or assets of illicit origin, efforts to identify the location of such funds or assets and confiscation: Return of funds or assets of illicit origin   and prevention of the transfer of funds or assets of illicit origin.  Buku R. R. United Nations Convention Against Corruption: A Critical Overview, http//ssm.Com/abstract=891898.2005, 22, accessed on 3/3.2016.

[11] Security Council Resolution 1483 (2003) at para 23 and 7. Also see “Phillippa W, “The United Nations Convention Against Corruption: Global Achievement or Missed Opportunity” Journal of International Economics Law, Vol 8, No 1 2005, 207.

[12] Article 51 UNCAC.

[13] The Travaux preparatories to the UNCAC indicates that the expression “discourage or prohibit financial institutions from doing business with any legitimate customer are understood to include the notion of not endangering the ability of financial institution to do business with legitimate customers cited in Buku R. R. op cit, 22.

[14] Chapter V, UNCAC

[15] Article 52, UNCAC.

[16] The travaux preparatories of the UNCAC will indicate that the expression discourages or prohibits financial institutions from doing business with any legitimate customers are understood to include the notion of not endangering the ability of financial institution to do business with legitimate customers.

[17] Ibid.

[18] Article 52 para. 4 UNCAC. The travaux preparatories of the UNCAC indicates that the expression physical   presence” is understood to mean meaningful mind and management located within the jurisdiction. Management is understood to include   administration, that is nooks and records, Buku R. R. op cit, 22.

[19] Article 52 para 5, UNCAC.

[20] Article 53 Ibid.

[21] Article 53 sub para, Ibid.

[22] Article 53 sub para, (b), Ibid.

[23] Article 53, Sub para, (a) Ibid.

[24] Article 54, Ibid.

[25] The travaux preparatories will indicate that the reference to an order of confiscation in paragraph 1 (a) of this    article may be interpreted broadly, as including monetary confiscation judgments, but should not be read as requiring enforcement of an order issued by a court that does not have criminal jurisdiction cited in Buku R. R. op cit, 23.

[26] Ibid.

[27] Article 55, UNCAC.

[28] Ibid.

[29] The travaux preparatories will reflect the understanding that the requesting State party will consult with the requesting State on whether the property is of de minimis value, Buku R. R. op cit, 23. 

[30]  Article 57 UNCAC.

[31] The travaux preparatories will indicate that the requested State party should consider the waiver of the requirement for final judgement in cases where final judgment cannot be obtained because the offender cannot be prosecuted by reason of death flight or absence or in the appropriate cases. 

[32] Article 58 of the UNCAC.

[33] Ibid.

[34] Economic Financial Crime Commission (Establishment) Act, Independent Corrupt Practice and Other Related Offence Act, et cetera.

[35] United Kingdom and United States of America.

[36] Cap-Laws of Federal Republic of Nigeria, 2004 as revised. Hereinafter referred to as the EFCC Act.

[37] Cap-Laws of Federal Republic of Nigeria, 2004 as revised. Hereinafter referred to as the Corruption Act.

[38] Section 28, EFCC Act

[39] Guillrtmo Z. Note on Asset Recovery in the UN Convention Against Corruption, Okorie C.K. Corruption, Owerri, Department of Public Law, Faculty of Law, Imo State University, 2015, 65. See sections 28, 29, 30, 31 of the EFCC Act, sections 43, 47 and 48 of the Corruption Act.

[40] Sections 28 of the EFCC Act

[41] Section 52 of the UNCAC.

[42] (2018) 1 NWLR, Part 1599 , p 155.

[43] Section 29 of the Corruption Act has a similar provision which is better. It empowers the Chairman of the Commission to authorize investigation only when he obtains court order in that regard with regard to banks. While section 27 gives the officer of the commission the general power to investigate on reasonable suspicion of commission of crime.

[44] Section 29 of the EFCC Act

[45] Section 28 of the EFCC Act

[46] Section 29 of the EFCC Act

[47] Example tort of trespass.

[48] It is a trite principle of law that in absence of justification, liability lies.

[49] Section 30 of the EFCC Act

[50] Section 31 of the EFCC Act

[51] Section 36 of the 1999 Constitution (as amended) of the Federal Republic of Nigeria.

[52] Ibid.

[53] Section 48 of the ICPC Act.

[54] Section  22  of the EFFC Act.

[55] Section  40  of the Corruption Act.

[56] Cap R4, Laws of Federal Republic of Nigeria 2004 as amended. Hereinafter called Property Act.

[57] Section  1 of the Property Act.

[58] Section 2 of the Property Act.

[59]  Recovery of Public Property (Special Provisions) Act.

[60] Section 43 of the 1999 Constitution (as amended) of the Federal Republic of Nigeria.

[61] Ogundipe S., “Buhari Suspends Panel on Recovery of Public Property: Placed gag Order on Obono-Obla” https://www.google.com.ng, accessed on 05-03-2018.

[62] Ibid.

[63] Cap C 43, Laws of Federal Republic of Nigeria 2004 as amended. Hereinafter called Currency Act.

[64] Section 8(3) of the Currency Act.

[65] Ibid.

[66] Federal Republic of Nigeria.

[67] Hereinafter referred to as ACJA.

[68] Section 330 of the ACJA.

[69] Administration of Criminal Justice Act 2015.

[70] This is anchored in justice.

[71] Proceeds Crime Bill.

[72] Ibid.

[73] Police and Legal Advocacy Centre, “Observation on the Proceeds of Crime Bill, 2017” placing.org/wp/wp-content/uploads/2017/06/observations-on-the-proceeds-of-crime, accessed on 03/03/2018

[74] Ibid.

[75] Ibid.

[76] Ibid.

[77] Ibid, 2.

[78] Ibid.

[79] Ibid.

[80] Ibid.

[81] Ibid, 3.

[82]Ibid.

[83] Ibid, 4.

[84] Federal Republic of Nigeria.

[85] Ibid.

[86] Chukwumaeze U.U., The Proceeds of Crime Bills, 2017-A Great but Insufficient Step in the Fight Against Corruption, being a paper delivered at the Law Week of Nigeria Bar Association, Aba Branch, Abia State Nigeria

[87] Gambia Anti Corruption Commission Act 2012.

[88] Ibid.

[89] Ibid.

[90] Money Laundering Act 2003 of Gambia.

[91] Gambian Anti- Corruption Commission Act.

[92] Section 29 (2) of the Money Laundering Act 2003.

[93] Gambian Anti- Corruption Commission Act

[94] Chukwumaeze U.U op cit.

[95] Ibid.

[96] Wikimedia Foundation Inc,” Provisions of the Act”, https://en.org/wiki/proceeds-crime-Act-2002,accessed on 23/3/18

[97] Chukwumaeze U.U op cit.

[98] Wikimedia Foundation Inc, op cit.

[99] Chukwumaeze U.U op cit.

 

 

Financial Reporting as a Corporate Governance Tool for Strengthening Corporate Business in Developing Economies: Lessons from Nigeria

By Udu, Eseni Azu, Ph.D (UNIZIK), Ph.D (NIGERIA), Lecturer, Faculty of Law, Ebonyi State University, Abakaliki, Nigeria, P.O. Box 1397, Abakaliki, Nigeria; Email: This email address is being protected from spambots. You need JavaScript enabled to view it..

Abstract

Corporate administration and financial audit remain the most important aspects of corporate governance that makes management accountable to stakeholders for stewardship to a company. Thus, the separation of ownership from control of business has made the rendering of stewardship a critical key to corporate governance. Therefore, timely presentation of financial information, which reflects the economic consequences of transactions and events, is a part of good corporate governance. This paper is aimed at appraising financial reporting as a tool for strengthening corporate business to guarantee economic development and sustainability. This paper has employed a doctrinal approach of data collection hinged on appraisal and analysis. Overall, it found that there exists poor quality financial information, which beclouds the market assessment of the value of the securities appropriately, thereby weakening the passive monitoring of the corporate management. Because of the above, there has been a regression in corporate governance, due to poor quality financial reporting. It is therefore recommended that the legal framework for corporate governance should be strengthened. The enforcement mechanism should also be fashioned to compel legal compliance to the corporate governance principles in complementarity to ethical compliance by corporate managers. Directors as trustees are obliged by law to present their stewardship report in the form of financial statements (i.e. balance sheets, profit and loss accounts and statements of changes in financial position) as well as a statement of how the business was managed, to the shareholders at specific times, usually at Annual General Meetings (AGM) for consideration and possible approval. This practice of corporate governance is targeted at ensuring and strengthening the accountability of directors to shareholders.

Introduction

Financial reporting as a concept involves the disclosure of financial information to management and the public about how the company is performing over a specific period. Financial reports are usually issued on a quarterly and annual basis. This is different from management reporting, which is financial information that is disclosed to those inside the company to be used to make decisions within the company. Financial reports are included in a public company's annual report. The board of directors comprises of professional people who are appointed by the company to direct and manage the business and its corporate resources for the benefits of the resource owners. This assertion assumes that directors do not have any equitable interest in the organization. It is difficult to separate corporate financial reporting from corporate governance. There may be two reasons for this. First, shareholders have the right to receive information timely on the economic consequences of transactions entered into by the company and other events on the financial position and performance of the company. Secondly, high quality financial information helps the market to value the shares and other securities appropriately and thus strengthen the passive monitoring of the executive management by those who do not have control rights. Due to the above, there has been an improvement in corporate governance due to right quality financial reporting.[1]The place of financial reporting and auditing in the enhancement of good corporate governance cannot therefore be overemphasised. The requirement for transparency is reflected in the obligations of financial reporting and auditing, narrative reporting and business review placed on the board of directors. At any rate, corporate responsibility is meant to be captured under Social and Environmental Reporting and Sustainability/Development Reporting to be prepared and presented by board of directors during general meetings of members.[2] These obligations are however different from the fiduciary duties of directors, which are owed to the company.[3] The paper argues that financial reporting and auditing enhances corporate governance to ensure accountability by board of directors to shareholders.

Financial Reporting as a Corporate Governance Tool

The major objective of financial reports is to supply information on which management decision-making is based. This will require complete and accurate disclosure of both quantitative and qualitative data.[4] This is in line with the long-standing principle in financial reporting that requires fair and adequate disclosure in order for a good corporate governance to operate.[5] Section 331 (1) and (2) of the Companies and Allied Matters Act (CAMA)[6] states: ‘Every company shall cause accounting records to be kept … the accounting records shall be sufficient to show and explain the transactions of the company and shall be such as to: Disclose with reasonable accuracy at any time, the financial position of the company, and enable the directors to ensure that many financial statements prepared under this part comply with the requirements of this act as to the form and content of the company’s financial statements.

Notably, financial reporting serves two primary purposes. First, it helps management to engage in effective decision-making concerning the company's objectives and overall strategies. The data disclosed in the reports can help management discern the strengths and weaknesses of the company, as well as its overall financial health. Second, financial reporting provides vital information about the financial health and activities of the company to its stakeholders including its shareholders, potential investors, consumers, and government regulators. It's a means of ensuring that the company is being run appropriately. Note that if a company is publicly traded, it is subject to some very strict reporting regulations enforced by the Securities and Exchange Commission (SEC).[7] An audit is the verification of a company’s book and records, performed by an independent expert usually external expert, with a view to ascertaining its compliance with the accounting policy of the company and accounting standard rules.[8] It involves an examination and therefore an investigation into the past history, records and data about a company in order to gauge and discover the legality of the business operations, transactions, tax reporting and the overall handling of finance within the business. The essence of auditing is to ascertain that the books of account correspond with the accounting policies of the company as well as the accounting standards set out by the standard-setting boards. Generally, accountants must use Generally Accepted Accounting Principles (GAAPs) and Generally Accepted Auditing Standards (GAASs).[9] More so, the audited account must show the financial status of the company as it constitutes the proof of the financial status of a company, and as the courts have it, it is the best way of showing the financial position of the company at any given time.[10] The various changes in accounting, financial reporting and auditing were all designed to provide protection to investors. This is being achieved by importing a duty of accountability upon the managers of a company.[11] Auditing is used to provide the needed assurance for investors when relying on audited financial statements. More so, the role of auditing is to reduce information asymmetry in accounting to members, and to minimise the residual loss resulting from managers’ opportunism in financial reporting. Effective and perceived qualities (usually designated as apparent quality) are necessary for auditing to produce beneficial effects as a monitoring device.[12] Thus, it is as important as the effective audit quality. 

Audit quality implies that the auditor discovers an anomaly in the financial statements, and reveals it.[13] As an objective approach, auditing is concerned with an expert opinion on the fairness with which financial statement present in all material respects, a company’s financial position, results of operations and cash flows in conformity with GAAP. Again, to be able to express such an opinion, the auditor must examine the financial statements and supporting records using sound auditing techniques.[14] Given that corporate governance is concerned with aligning the interests of stakeholders with that of management and that the principles of integrity, transparency and adequate disclosure requirements are essential components of good corporate governance, it follows therefore that auditing is employed in observation of these social responsibility bearing in mind the effect that the reporting of the financial statement will have on the shareholders and the community at large. 

The Act requires the accounting records in particular to contain entries from day to day of all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure take place and a record of the assets and liabilities of the company.[15] According to a learned writer,[16] financial statement (through financial reporting) shows the annual state of affairs of the company and they are vital and indeed, of crucial importance not only to members of the company but also to third parties dealing with it. While the financial statements enable a member to know, for instance, whether his investments are growing or depreciating and whether to sell off or retain his shares in the company, they provide a potential investor with information which would either persuade him to invest or dissuade him from investing in a company.[17]

The practice of financial reporting serves as an overview of financial activities of a company. It is a standard practice for companies to prepare and present financial statements in a clear and concise manner for both the company and stakeholders in compliance with the regulations of the locale the company is domiciled, and according to the prescriptions of the board authority to maintain continuity of information and presentation across borders. By virtue of section 331 (1) (2), every company is required to keep accounting records in accordance with this section which shall be sufficient to show and explain the transactions of the company so as to disclose with reasonable accuracy, at any time, the financial position of the company and to enable the directors to ensure that any financial statements prepared under this part comply with the requirements of this Act as to the form and content of the company’s financial statements.[18]

Financial reporting has gradually become a slightly complex activity that is of interest to many persons throughout modern and contemporary society. In the past, it was a relatively simple practice primarily of interest to small group of industrialists and financiers. The development of financial reporting within individual countries differs due to the influences of the territory of each country.[19] For instance, the British view has traditionally been that the main purpose of financial reporting is to provide information for investors across the European continent. The European view has been that financial reports can be used for several purposes or more specifically for corporate governance purposes.[20]As it is, this paper defines financial reporting and accounting as the product of corporate accounting and external reporting systems that measure and publicly discloses audited and qualitative data concerning the financial position and performance of firms. Thus, financial accounting or reporting is the fundamental source of independently certified and promoting systems that provide valuable information to corporate control mechanisms that help to alleviate the agency problem which results from the separation of managers and financiers.[21] For investors to make good and crucial investment decisions, it is imperative to understand the theory of principal-agency relationships. 

Suffice it to say that this theory will be crucial for investors as it will provide them with adequate information with regards to financial reporting. Thus, principal-agent relationship exists between two contractual parties in business terms. It occurs when a person (an agent) acts on behalf of another (the principal). For the shareholders (i.e. the principal) engage management (agents) to act on their behalf and in full authority as delegated to the management to carry out the intention of the shareholders.[22] Given that most agents are experts at taking important decisions, however, when the decisions are conflicting with the interest of the principal, there is bound to be problem arising in this relationship because the principal is unable to monitor the agent’s activities perfectly and get the exact information as the agent without expending any cost hence, the risk of opportunistic behaviour on the side of the management. Often, this heads to information asymmetry, a system where one party has more or better information than the other. This creates an imbalance of power in transactions leading to a kind of market failure in the worst case.

Examples of this problem are adverse selection,[23] moral hazard[24] and information monopoly.[25] Furthermore, agency costs are incurred by the principal while attempting to avoid a moral hazard on the part of the agent. Although, this cost might be expected but not to a large extent, and it could be reduced through strict monitoring measures for effective reduction in agency costs. Therefore, the principal must enforce their interest through monitoring and controlling the agent.[26] Monitoring simply means the gathering of additional information about the firm’s current & future financial and economic possibilities and other information which are considered necessary for shareholders meetings. 

On the other hand, control signifies restrictions of certain management activities like decisions about the number of retained earnings. However, it might not be completely possible for the principal to affect this monitoring measure due to high cost involved and shareholders are indeed never able to replace management completely. So, there always remains a certain level of risk of opportunistic behaviour from the agent’s side due to principal financial limitations. Deduced from above is where the need for corporate governance comes from and why it is important in the contemporary world of corporations. Emphatically, the original need for corporate governance stems from the separation of ownership and control in publicly held companies. Investors seek to invest their capital in profit-making firms so that they can enjoy this profit in the future. Many investors lack the time and enterprise necessary to operate a firm and ensure that it provides an investment return. Thus, investors hire individuals with management expertise to run the company daily to see to it that the company’s activities enhance its profitability and long term performance. However, these managers and or directors often take actions that affect the value of shareholders’ investment.[27] Such attitude of management obviously affects the performance and financial viability of the firm and illustrates the need for corporate governance. More so, the principal and concept of corporate governance has arisen due to the high-profile collapses that were witnessed across the world of which Nigeria was no exception. The scandals precipitated concerted efforts at evolving codes of best practices for companies. There have been instances of corporate fraud on the international scene, which eventually led to the collapse of notable companies. A very popular example is the Enron case in the US.[28]

The collapse of Enron, for instance, had a negative impact on Arthur Andersen, an auditing firm that helped it to call the shots. Some of the company’s principal officers were prosecuted, convicted and sentenced to various terms. Rank Xerox is another popular case.[29] The company had to pay a fine to the tune of 10m dollars following the US SEC investigation of its accounting practices. Other examples are the WorldCom[30] and Parmalat[31] saga in Europe. On the local scene, we also have some notable cases such as the failure of some Nigerian banks in the early 1990’s. Another one is the case of Lever Brothers Plc[32] (now Unilever) in 1998 where over-valuation of stocks running into billions of Naira was discovered. Another is the case of the African Petroleum (AP) Plc where the company’s Board concealed its indebtedness to the tune of about 22 Billion Naira in its offer for sale of shares in 2000. Again, the Cadbury Nigeria Plc’s overstatement of its audited financial statements in its Annual Reports and Accounts for 2005 is another case in point. Upon review of Cadbury’s annual report, the SEC wrote to Cadbury on a letter dated September 22, 2006 to express concern about issues arising from the report in the areas affecting profitability, worsening leverage ratio, deteriorating cash flow, inadequate disclosure, non-compliance with corporate governance code, and obtaining loans for the payment of loans and for the payment of dividends to shareholders contrary to SEC regulations.[33] Also, a very recent case concerning the African Petroleum Plc[34] shares has brought to light the issue of corporate governance practices in a country like Nigeria. Following these collapses therefore, organizations have come to the realization that to maximize returns on their investment, accurate information need to be adequately provided for to reassure investors and the public alike, whose investment decisions are influenced by such information provided for, hence, the need for corporate governance. Thus, corporate governance is a system by which companies are directed and controlled.[35] It is concerned with holding the balance between social and economic goals between individual (shareholder) and communal goals. The aim is to align as nearly as possible the interests of individuals, corporations and society. It implies rules and regulations that ensure that a company is governed in a transparent and accountable manner such that the enterprise survives and meets the expectations of its shareholders, creditors and stakeholders of which society forms a large part of. 

Having noted the concept of corporate governance in passing, it would be difficult trying to separate financial reporting from corporate governance.[36] This is the basis that shareholders have the right to receive information timely on the economic consequence of transactions entered into by the company and other events on the financial position and performance of the company. Therefore, timely presentation of financial information, which reflects the economic consequences of transactions and events, is a part of good corporate governance.  

More so, high quality financial information helps the market to assess the shares and other securities appropriately and thus strengthens the passive monitoring of the executive management by those who do not have control rights (e.g. analyst and credit rating agencies). As a result, high reporting improves corporate governance. Therefore, it is not surprising that with increased focus on corporate governance, the focus on corporate financial reporting has also increased. Almost every country has initiated action to improve the quality of financial reporting to enhance the value relevance of the financial information provided in financial statements. Prudence, reliability and relevance are the cornerstones of financial reporting.[37] Application of the principles of prudence requires a company to recognize a loss or a liability immediately it is identified, while it prohibits a company to recognize an income unless it is earned and its collectability is reasonably certain. Thus, the principle of prudence is a check against the opportunistic behaviour of the management that has the incentive to defer recognition of a loss or liability and to advance the recognition of income. 

Although accounting is moving away from the historical cost basis of accounting, standard-setters have not yet given up this concept of prudence.[38] Notably, the use of accounting information in corporate governance mechanisms can be explicit (direct) or implicit (indirect). Financial report is explicitly used in managerial incentive contracts or debt contracts (direct use), but also contributes to the information contained in stock prices (indirect use). Furthermore, financial accounting information is both an output of the governance process, since it is produced by managers, and also an input since it is used in corporate control mechanisms.[39] As a result, additional governance mechanisms are required in order to ensure the quality, integrity, transparency and reliability of the accounting information supplied by managers, such as adequate internal control systems, independent board members, vigilant audit committees and independent external auditors.[40] Financial accounting information is an input of the governance process.[41] Fundamentally, corporate disclosure and transparency are vital for a strong corporate governance framework. Transparency, which is a desirable characteristic of financial reporting, can be defined as “the extent to which financial reports reveal an entity’s underlying economic reports.”[42] The need for accurate, reliable, timely and accessible financial and non-financial business information is imperative to maintain corporate accountability. As earlier mentioned, the effusion of corporate frauds and failures obviously bring company directors, accounting regulations, auditors and in general the accounting profession into sharp focuses.[43] This brings up the need to examine the role of financial reporting in corporate governance and the extent to which financial reporting serves the needs of corporate governance for the benefit of a wide range of stakeholders and for the befit of society in general. 

It is pertinent to argue that effective system of corporate governance requires an effective financial reporting system, and that an effective financial reporting system requires a well-ordered system of financial accounting.[44] Thus, it follows that where there is accurate, timely and transparent disclosure, certain fraudulent acts and failures would be prevented. One of such situations that transparent corporate financial reporting helps to combat is the financial statement fraud. Financial statement fraud[45] is a deliberate attempt by corporations to deceive or mislead especially investors and creditors, by preparing and disseminating materially misstated financial statements. Misstated financial statement may involve liabilities, or failure to disclose transactions or other information material to a fair presentation of the reported result of operations, and for materially misleading disclosures.[46] Among the most common motivations for companies to commit financial statement fraud are the constant pressure to meet earning projections competition for capital and the perverse compensation arrangements.[47] Imhoff[48] argues that within the U.S. financial reporting environment, managers have increasingly been offered mainly through cash bonus and stock option plans based on accounting results, incentives to manage earnings and to delay or conceal bad news. Financial reporting as a corporate governance tool connects the people that are involved in corporate governance such as the management including the board of directors, auditors, information distributors, analyst and shareholders. It is the bridge that connects the company with the external parties and will be the measurement to determine the performance or outcome of the company. 

The financial information is the first source of independent and true communication about the performance of company managers. This relevance makes the financial reporting as the main attraction to management influence.  The integrity of financial reporting is highly dependent on the performance and conduct of those involved in the financial reporting ecosystems, particularly directors, management and auditors.[49] In other words, the integrity of financial reporting relies on corporate governance. The board of directors has a primary responsibility of overseeing the firm’s financial reporting process. This board of directors together with management will try to produce a financial statement that shows that the company achieved a recommendable profit. The independent person that reviews the corporate reporting is the auditor. They need to follow the auditing standard with competence, diligence and integrity. They are supposed to give their opinion on the reported information.[50] It is the duty of the directors to prepare financial statements. The Companies and Allied Matters Act[51] provides in section 334 (1) that the directors must, in respect of each financial year of a company, prepare financial statement for the year which will include the following: 

  • A statement of the accounting policies;
  • The balance sheet as at the last day of the financial year; 
  • A profit and loss account or, in the case of a company not trading for profit an income and expenditure account for the financial year;
  • Notes on the accounts;
  • The auditor’s report; 
  • The director’s report; 
  • A statement of the source and application of fund; 
  • A value-added statement for the financial year;
  • A five-year financial summary, and
  • In the case of a holding company, the group financial statements.[52]

The financial statements of a private company however, need not include the matters stated in paragraphs (a), (g), (h) and (i) above.[53] The shareholders usually understand the limitations of the corporate structure from its inception, and often appoint representatives to serve their interests. So, the directors and management have duties and must exercise these duties to the shareholders with diligence and with care. They should never be negligent in performing their duties, especially when preparing the financial statement in every occasion. In a viable financial reporting as a very important tool in corporate governance, there are certain basic features that must be present. These characteristics are prudence, reliability, relevance and comprehension.

Information is reliable if it is free from bias and error and can as supposed be depended on by the public who are in one way or the other affected by the result, as represent events and transactions faithfully. Difficulties of measurement can at times affect the reliability of information as financially reported. In addition, information of the financial statement must not be designed to influence anybody or body of persons, because it can affect its reliability negatively. The financial statement if reliable has the following attribute associated with it,[54] namely: representational faithfulness, meaning that for the information or statement to be reliable, it must represent accurately the transactions and other circumstances of the entity. One piece of information may be relevant to the extent that it represents the true transactions of the entity but the circumstances on which the entity operates may render the information unreliable. Others include substance over form, that for the financial statement to be reliable, it should reflect the substance of the transaction and not necessarily the legal form.[55] Another one is neutrality. It means that such financial statement should be designed in such a way that it should not intentionally or by default, mislead the user to plan which the preparer desires. Also, the financial statement must be complete, and balance between costs and benefits.[56]

Furthermore, another characteristic of financial statement is that the information must be relevant. Information in a financial statement is relevant if it helps to influence the economic decisions of users. It will thus help them to evaluate present events and forms the basis for predicting future events as they relate to the entity. It is also to be relevant if it helps to correct previous faulty evaluation that was made in relation to the entity. In addition, the financial statement must be presented in such a way that it is readily understandable by the people concerned who have reasonable knowledge of business, economic activities and accounting and who are willing to study this information diligently.

In all the above, there must be the existence of true and fair report. This means that the financial statement must represent and have the attribute of being true and fair to the best of their knowledge that is the directors that are mandated to prepare the financial statements. These will all ensure that good and effective financial reporting as a tool in corporate governance will be actualized if the directors and the auditors, etc. are diligent enough and not negligent in their respective duties.43

Financial Reporting Failure Leads to Corporate Governance Failure and Vice-Versa 

Corporate governance which is characterized by transparency, accountability, probity, and the protection of shareholders’ rights, cannot be said or proved to exist if there is poor financial reporting. In fact, poor financial reporting can lead to corporate governance failure, and the concerned and affected company can go into bankruptcy. That is why it is usually emphasised that financial reporting is a very vital tool in effective corporate governance. To buttress the above statement, there have been occasions of corporate accounting scandals. Corporate scandals that happen today are not unique. It is continuous from previous episodes that pose threats to the nation’s economy. At the end, either the auditor(s) or the management is to be blamed. So, a good, true and fair financial reporting will ensure that the company functions and lives, but in the other way around, the reverse will be the case.

One of such corporate accounting scandal resulting from poor financial reporting is the case of Enron.[57] Enron accounting scandal was a popular one. Enron was established in 1985 as US based energy company and it was prosperous in its early life that its stock rose to by 311% in 1990s. Though the sign of distress in the company started emerging in 1997 when it wrote off $537 million to settle a contract dispute with another company. It became obvious that Enron was in serious problem when in November, 2001 it restated its account of 1997-2000 to correct accounting abnormality. The restatement brought down its reported earnings for this period by $591 million and increased the debt by $658 million. Consequently, the credit rating agents downgraded the company and it filed for bankruptcy in December 2001. Arthur Andersen that was the auditor of Enron was accused of negligence in its duty and was criticized of compromising its professional position for financial gain and this led to the winding up of the firm.[58] Other corporate accounting scandals are the case of Parmalat, an Italian company, Worldcom,[59] a US-based telecommunication company, among others. To be considered also in respect of corporate accounting scandal is Perwaja Steel Sdn. Bhd,[60] a Malaysia-based company. One of the wellknown corporate governance failures in Malaysia is the scandal of Perwaja Steel Sdn. Bhd. Perwaja was established in 1982 by HICOM BhD, a company owned by the government in collaboration with Japanese Company, Nippon Steel Corporation to fulfill the government’s mission in implementing the heavy industrial policy. The corporate governance of Perwaja was collapsed due to misconduct in the directorship. The director has paid RM 74.6 million to Japan’s NKK Corporation without getting approval from board of directors or tender committees. Later it was revealed that the payment was made via Hong Kong based firm. No qualification of accounts was made by the external auditors during the period 1992 to 1995 with respect to Perwaja’s accumulated losses. Investigation revealed that there was an alarming lack of an internal control system within Perwaja. There are inaccurate records, and this demonstrated a failure of corporate governance in which internal control mechanisms were short-circuited by conflicts of interest that enriched certain directors and has an impact on the reporting failure.[61] 

These cases of corporate scandals show that the importance of financial reporting is very crucial in corporate governance. And that if there is true and fair financial reporting, it will be very difficult for a company to go bankrupt but instead it will immediately redress the wrong as stated and discovered in the financial statements.  

Narrative Reporting as part of Corporate Governance Measures 

Narrative Reporting describes the non-financial information included in annual reports to provide a broad and meaningful picture of the company’s business, its markets position, strategy, and performance and prospects. This includes the director’s report, the chairman’s statement, the directors’ remunerations report and corporate governance disclosure.[62] These make-ups of narrative reporting shall be explained seriatim:

The Directors Report

Directors are required to prepare in respect of each financial year, a director’s report which will be attached to the balance sheet.[63] Therefore, every company must attach to the balance sheet and profit and loss account a director’s reports.[64] According to section 342 of CAMA, there shall be prepared in respect of each year a report by the director which shall contain the following:

  • The names of persons who, at any time during the year, were directors of the company.[65]
  • The financial activities of the company and its subsidiary in the course of the years.[66]
  • Any significant change in the financial activities of the company and its subsidiaries.[67]
  • The report shall also state the matter, and give the particulars required by Part I of Schedule 5 to the CAMA.[68]

On the scope of coverage of director’s report, section 342(1) of CAMA provides that the report shall contain a fair view of the development of the business of the company and its subsidiaries during the year and their position at end of it.[69] Secondly, the director’s reports shall state the amount (if any) which they recommend should be paid as divided and the amount (if any) which they propose to carry to reserves.[70] The law provides for punishment for failure to comply with the requirement. Accordingly, any failure to comply with the requirement of CAMA as to the matters to be stated and the particulars to be given in the director’s report, every person who was a director of the company immediately before the end of the period prescribed for laying and delivery of financial statements, shall be guilty of an offence and liable on conviction to a term of imprisonment for more than 6 months or to a fine of N500.[71] The above provision for punishment notwithstanding, it shall be a defence for the director to prove that he/she took all reasonable steps for securing compliance with the requirements in question.[72]

Chairman’s Statement

Recall that the annual report of a company is a key information source for shareholders of such company to find out its performance in the previous financial year. Its content can be divided into two main categories: quantitative and qualitative. The section under quantitative category is basically the financial statement of the company. However, the qualitative category consists mainly of the chairman’s statement and management discussion. Chairman's statement is a report by a company's chairman once a year that gives information to shareholders about the company's performance during the past year. The chairman’s statement is getting more attention as investors realize that by going through these contents they can gain insight into the overall company performance, business activities, and development and future directions.[73] In an annual report, the chairman’s statement is always located at the start of the report. Since it is a voluntary disclosure,[74] the statement usually comprises what the senior management of the company wants to disclose to the public. Arguably, the Statement exaggerates positive news during the good years and places less focus in bad news in lack lustre years.[75] When a company reports good performance and prospect, the words used in the chairman’s statement tend to be more optimistic, compelling and assertive. 

Interestingly, if the company is reporting poor performance, lengthy explanations about business activities or financial performance are withheld especially to those involving issues. Besides, when negative issues are brought up, the explanation given tends to be ambiguous and will most likely focus on external factors beyond the management’s control. In some cases, when the chairman is trying to hide bad news from the public or facing crisis that has not yet been made known to the public, and the statement might avoid words that indicate certainty or commit the company to a position. Often, the chairman’s statement uses graphs and pictures for support.[76] The chairman’s statement also displays apologies for problems that occurred during the year.

The Directors Remuneration Report

Directors' remuneration reports includes a directors' remuneration policy, and an annual report on remuneration in the financial year being reported on, and on how the current policy will be implemented in the next financial year. By virtue of section 268 of CAMA, a managing director shall receive such remuneration (whether by ways of salary, commission or participation in profits, or partly in one way and partly in another) as directors may determine. According to Orojo,[77] the remuneration of directors is, as a rule, regulated by the Act and articles, but unless so provided, or  there is an agreement to that effect, they are  not entitled to remuneration for services since they are not servants of the company, but are in the position of managers. Accordingly, the remuneration of the directors shall from time to time be determined by the company in a general meeting and such remuneration shall be deemed to accrue from day to day.[78] Also that the directors may be paid all traveling, hotel and other expenses properly incurred by them in attending  and returning from meeting of the directors or any committee of the directors or general meetings of the company or in connection with the business of the company.[79] What is clear from both section 267 and 268 of CAMA is that the remuneration of managing director is a mandatory obligation imposed on the company by CAMA to be determined, however, by directors, but on the part of the directors, the company shall not be bound to pay them, unless where the company agrees to pay or same is fixed by the article of association. Such agreement to pay is usually at the general meeting. And where remuneration of director has been fixed by articles, it shall be alterable only by a special resolution.[80] Consequently, the remuneration of directors is no longer required to be stated in the prospectus, but the aggregate amount of directors’ emoluments must be shown in the notes to the narrative reporting.[81] This report will enable the shareholders to review the agreement to pay directors or alter the article to make changes to the fixed remuneration of the directors where necessary.

Corporate Governance Disclosure

It has been recognized that the ‘prize’ which companies should pay for the privileges of incorporation and limited liability should be a fair degree of openness and publicity about their affairs. The Companies Acts have been largely based on this philosophy.[82] In response to recent corporate governance scandals, governments have adopted several regulatory changes. One component of these changes has been increased disclosure requirements. It has been reported[83] that a major barrier to the flow of relevant information is the risk of opportunism inherent to the manager’s influence in the firm, which is referred to as an incomplete or distorted disclosure of information and calculated efforts to mislead, distort, obfuscate or otherwise confuse the public and shareholders. Companies and Allied Matters Act makes provisions for disclosures with respect to the individual interest of members in the share capital of a public company.[84] The aims for this requirement of disclosure by CAMA are as follows:

  • To reveal the identities of persons who may be acquiring shares in the company with a view to controlling it.
  • To enable the company make its own investigations in this respect without resort to an investigation ordered or supervised by the Corporate Affairs Commission.
  • To help check abuse and corruption. The disclosure obligations are directed towards two areas namely shares held in trust and substantial shareholding.[85]

There is also a requirement of disclosure in respect of loans and other transactions favouring directors and officers.[86] More generally, the principle of cooperate governance disclosure demands for publicity of every decision of general meeting and that of the directors which affects business activities or interests of the members of the company and/or the public. This corporate governance disclosure is usually made as part of the annual report as stipulated by the CAMA.[87] According to Ofo,[88] beyond the disclosure made in the annual reports of companies as stipulated by the CAMA, there is real need to take further steps to ensure that shareholders actually get corporate information. The information could be provided in a dedicated corporate governance section in a company’s website. The corporate governance section or report of the annual financial statement should contain appropriate websites references and links to enable shareholders to access the information.

Business Review

Generally, the functions of the board of directors include inter alia: Defining the business or businesses in which the company shall engage and setting the company’s long term objectives and strategic plans and ensuring that there is adequate machinery for planning.[89] 

In case of every company, there shall be prepared in respect of each year a report by the directors containing a fair view of the development of the business of the company and its subsidiaries during the year and of their position at the end of it.[90] In making the business review, the directors’ report should give details of the general nature of the business, changes in its asset value, director’s shareholdings, training matters, acquisition of its own shares, policy to be disabled, health and safety matters and employee participation policy.[91]

Business review is properly reflected in the financial statement prepared by director. Accordingly, financial statements of a company shall consist of the following items:

  • Statement of the accounting policies
  • The balance sheet as at the last day of the year
  • A profit and loss account or in the case of a company not trading for profit, an income and expenditure account for the year.
  • Notes on the accounts;
  • The auditors’ reports;
  • The directors’ report;
  • A statement of the source and application of fund;
  • A value-added statement for the year
  • A five-year financial summary
  • In case of a holding company, the group financial statements.[92]

When these items are presented appropriately, they stand as a general review of business of a given company.

Social and Environment Reporting  

Social and environmental reporting is usually captured in the chairman’s statement. People generally feel that business and other organizations have social obligations and responsibilities. Social responsibility includes obligations that an organization including company owes the general public and to specific interest groups and they arise from organizational activities that affect society to a greater degree.[93]

In respect to companies, a social responsibility is embodied under the concept of corporate social responsibility.[94] In Nigeria, society has been placing increased demands on big business organizations for greater social responsibilities in the next decade. There has been pressure on business to be involved in solving social and economic problems.[95] The concern includes employee welfare, working conditions, pollution, product safety, marketing practices, employment and community development among others.75 Companies embark on these provisions purely on moral and ethical grounds and never as a legal obligation. Since the investors’ money is involved in such developmental expenditures, the directors, as part of the annual accountability, are required to report on the company’s social outreach for the year. A new plan may be presented through the reporting for consideration by the shareholders at the general meeting.[96]

On the other part, environmental reporting is a national policy as required by Environmental Impact Assessment Act (EIAA).[97] One of the objectives of environmental impact assessment[98] is 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 authorize the undertaking of any activities, those matters that may likely or to a significant extent affect the environment or have an environmental effect on those activities, and same shall be taken into account.[99] Secondly, the Act[100] has also the goal of encouraging the development of procedures for information exchange, notification and consultation between organs and persons when proposed activities are likely to have a significant effect on boundary or trans-state or on the environment of bordering towns and villages.[101] Experiences all over the world have revealed that failure to incorporate and institutionalise EIA into a project and the production process at the outset generally results in higher costs later for curative health and environmental programmes to control pollution and manage industrial wastes.[102]

Environmental responsibility of companies, especially those that their activities affect environment, forms part of the concept of corporate social responsibility. Under the Nigerian law, a registered company can only engage in and apply its funds for businesses which are authorized by its object clause in the memorandum of association.[103] It will therefore be ultra vires for a company acting through the directors to expend its resources for social, political, environmental or charitable purpose except such is justified as being in the interest of the company and to promote its prosperity. The possible exceptions to this rule are where the company’s object expressly permits the use of the company’s money for a specified purpose without any reference to the relevance or utility of the expenditure to the company’s prosperity and where the company, being a charitable organization, applies its funds for a charitable purpose.[104]

As noted above, as far as Nigerian company law is concerned, there is no obligation on a company to act as a good corporate citizen or with altruistic sense of responsibility towards the environment. This has however, been made possible because the objects clause of companies these days is framed so widely as to permit necessary discretion or to engage in any business or activity which will promote the interest of the company.[105] Also, National Policy on Environment imposes an obligation on corporate bodies to take responsibility toward the environment. Thus, if a company expands its funds voluntarily for improving the environment, such expenditure need to be reported to the shareholders at the general meeting. Also, plans for the environment must also be presented before the shareholders for approval or rejection or even amendment. This duty of environmental reporting becomes very necessary since the object/business clause may not have specifically authorized environmental expenditure.[106]

Presumably, acting under the above requirement and exceptions, Nigerian companies indeed have been engaging in one charitable giving or other activities for the improvement of the environment. Some of the examples of these social and environmental responsibilities include the building by Guinness Nigeria Limited of an Eye Hospital in Onitcha,[107] bursaries and scholarships have been provided for secondary and universities education by companies like UAC Nigeria Limited,[108] P.Z Nigeria Limited[109] and Gulf Oil Company (Nigeria) Limited.[110] Equally, research grants and professional chairs in universities have been endowed by First City Merchant Bank Limited,[111] Unity Bank of Africa Limited[112] and International Merchant Bank Limited.[113] With particular reference to environmental improvement, Mobil Producing Nigeria Limited[114] as well as other major oil producing companies have constructed several kilometres of roads in rural areas; provided water, electricity and built schools for rural communities where they operate.[115] All these constructions, buildings, grants and charitable donations are presented in the annual general meeting of a company as ‘Social and Environmental Reporting’.                                    

Sustainability/Development Reporting

According to Black’s Law Dictionary,[116] sustain means ‘to support or maintain especially over long period’. Also, development means ‘a human created change to improve….’ When combined, sustainable development means development that meets the needs of the present without compromising the ability of future generations to meet their own needs…. It is a process of change in which exploitation of resources, the direction of investments, the orientation of technology development, and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations.[117]

Company business or corporate activities should be carried out in such a way as not to obstruct or endanger human and environment development. The social environment in which corporate bodies operate should be preserved for future generation to utilize for continuity of life and its environment. Sustainability forms part and parcel of corporate social responsibility. Regarding a company, its implication is that a company should not cut the bridge after crossing all in effort to make profit or achieve success. The motive for profit or success must be balanced with the need to sustain or develop the sources available for present and future utilization. When a company spends its resources to develop the environment, it should be accounted for. This is the basis for sustainability/development reporting. The Financial Reporting Council has produced guidance on the strategic report and other aspects of narrative reporting, and its Financial Reporting Unit reports provide the results of discussions with investors on best practice disclosures areas.[118] 

Conclusion and Recommendation

Notably, while the financial reporting process provides investors and creditors with information about the entity’s performance, it also impacts the current and future wealth position of its managers. For this reason, the use of accounting performance measures in management compensation contracts has been the most thoroughly researched corporate governance issue. There is however, poor quality financial information, which blurs appropriate market assessment concerning the value of company securities. There is consequential regression in corporate governance due to poor quality financial reporting. Therefore, the paper recommends that the legal framework for corporate governance should be strengthened. The enforcement mechanism should also be fashioned to compel legal compliance to the corporate governance principles in complementarity to ethical compliance. However, the external financial reporting-corporate governance relationship is not limited to financial compensation and results alone, since governance accountabilities are also affected by corporate social and environmental impacts. The reporting environment of a publicly held firm includes a monitoring network comprised of those who follow the firm in the role of owner or investor, an intermediary such as an analyst or an investment banker, and who have actual overnight responsibility such as the external auditor. Ironically, the role of external auditors has been perceived as the most important factor in defecting and preventing financial statement fraud. In recent years, however, the entire corporate governance system (board external auditor, committee, top management team, internal auditors, external auditors, and governing bodies) is responsible for ensuring the integrity, transparency and quality of financial statements. In conclusion, timely, accurate and transparent disclosure of the financial statement of the company is a sine qua non for the observance of good corporate governance, hence, the essence of financial reporting in helping investors to make good investment decisions.

Footnotes

[1] Companies and Allied Matters Act (CAMA), Cap. C20 Laws of the Federation of Nigeria (LFN) 2004, ss.331, 342 and 357.

[2] Ibid., note 1, section 331..

[3] CAMA, Cap. C20 LFN 2004, ss.279, 280 and 282.

[4] Available at: http://m.business-standurd.com/wapnew/storypage-content.php, accessed on 19/02/2018. 

[5] Aguolu, O., Fundamentals of Auditing, 3rdedn, (Institute for Development Studies, Nigeria, 2008) p. 570. 

[6] Cap. C2O Laws of the Federation of Nigeria, 2004.

[7] Investment and Securities Act, 2007, section 60(1).

[8] Ajogwu, F., Corporate Governance in Nigeria, Law and Practice (Lagos Center for Commercial Law Development 2007) p.21. 

[9]‘What is the Different between GAAP and GAAS? What are some examples?’, Available at:  https://www.quora.com/What-is-the-different-between-GAAP-and-GAAS-What-are-some-examples, accessed on 23/03/2018.

[10]Livestock Feeds Plc v. Igbino Farms Ltd (2002) 5 NWLR (Pt.759) CA 118 at 134. 

[11] Crowther, D. & Jatana, R., ‘Agency Theory: A Case of Failure in Corporate Governance: in Crowther, D. & Jatana, R., (eds), International Dimensions of Corporate Social Responsibility, 1, 2005, pp. 135-152.   

[12] Adejemi, S.B. & Fagbemi, T.O.,  ‘Audit Quality, Corporate Governance and Management, Vol.5, N0-5, 2010 p. 171 169-179. 

[13] De Anglo, L.E., ‘Auditors size and Audit Quality,’ Journal of Accounting and Economics, 3, 1981, pp 183-199. 

[14] Braodlly, D & D.T. Dohmateu, ‘Auditing and Its Role in Corporate Governance,’ Bank for International Settlements, FSI Seminar on Corporate Governance for Banks, 20 June, 2006. 

[15] Companies and Allied Matters Act (CAMA), Cap. C20, Laws of the Federation of Nigeria, 2004, section. 331 (3). 

[16] Orojo, O.J., Company Law and Practice in Nigeria, 5thedn, (Dayo Orojo of Royet and Day Publications Ltd, 2008) p. 295.

[17] Available at: https://www.edupristine.com/blog/financial-reporting, accessed on 21/03/ 2018.

[18] Udu, E.A., Principles of Company Law and Practice in Nigeria (Lagos: Mbeyi & Associates (Nig.) Ltd), p. 228.

[19] Baker, R. & Idallagey, P.,. ‘The Future of Financial Reporting in Europe: Its Role in Corporate Governance,’ The International Journal of Accounting, 35:2, 2000, pp. 173-189: 

[20] Ordelheide, D., ‘True and Fair View: A European & a German Perspective’,

European Accounting Review, 2:1, 1993, pp. l & 90; Kuhner, C., ‘Maintaining Economic Stability as a Motored for Statutory Accounting Requirements,” the European Accounting Review, 6:44, 1997, pp. 33-754.

[21] Bushmen, R.M. and Smith, P.A.J., ‘Financial Accounting, Information & Corporate Governance’, Journal of Accounting & Economics, 32:1-3 2001, pp. 237-333.

[22] Olugbenga, W.D., ‘Significance of Financial Reporting to Stakeholders in Nigeria - Investors Perspective, Business Economics and Law Journal, 2070.

[23] This refers to a market process in which undesired results occur when buyers and sellers have access to different information; the bad products or services are more likely to be selected, 

[24] A moral hazard is a situation where a party will have a tendency to take risks because the costs that could result will not be borne by the party taking the risk. 

[25] Ledyard, J.O., ‘Market Failure, The New Palgrave Dictionary of Economics, 2nd ed. 200, Abstract. 

[26] Olugbenge, T.J.D., ‘Significance of Financial Reporting to Stakeholders in Nigeria- Investors’ Perspective’, Business Economics & Tourism, 2070. 

[27] Triole, J., ‘Corporate Governance’, Economics, 69, No.1 2001, p. 2. 

[28] Segal, T., ‘Enron Scandal: The Fall of a Wall Street Darling’, available at: https://www.investopedia.com/updates/enron-scandal-summary/, accessed on 23/03/ 2018.

[29] Locke, R.R., ‘The Collapse of the American Management Mistique’, available at: https://books.google.com.ng/books?id=-5CuI9nGvOcC&pg=PA166&lpg=PA166&dq=Rank+Xerox+collapse&source=bl&ots=ZmHXCL2Bul&sig=00PmgFgNIf3OVZlO2cL3dhIU5zg&hl=en&sa=X&ved=0ahUKEwia_sPZiIPaAhUFJ8AKHYDTBysQ6AEIOzAG#v=onepage&q=Rank%20Xerox%20collapse&f=false, accessed on 23/03/2018.

[30] Romero, S. and Atlas, R.D., ‘Worldcom's Collapse: the Overview; Worldcom Files for Bankruptcy; Largest U.S. Case’, available at: http://www.nytimes.com/2002/07/22/us/worldcom-s-collapse-the-overview-worldcom-files-for-bankruptcy-largest-us-case.html, accessed on 22/03/ 2018.

[31] Borland, V., ‘The Saga of Parmalats Collapse’, available at: https://www.ft.com/content/c275dc7c-cd3a-11dd-9905-000077b07658, accessed on 23/03/ 2018.

[32] ‘Why Bunmi Oni, Auditor Must be Prosecuted,’ https://www.proshareng.com/articles/Frauds%20&%20Scandals/Why-Bunmi-Oni,-Auditor-Must-Be-Prosecuted/847, accessed on 23/03/ 2018.

[33] Sista, S., ‘Cadbury Nigeria Investigation’, available at: http://nigeriavillagesquare.com/forum/threads/cadbury-nigeria-investigation.6493/, accessed on 22/03/2018.

[34] AP's Share Price Scam: NSE/SEC Steps in. (Otedola Vs Dangote), available at: http://nigeriavillagesquare.com/forum/threads/aps-share-price-scam-nse-sec-steps-in-otedola-vs-dangote.30875/, accessed on 23/03/ 2018.

[35] Cadbury, S.A., ‘Report on the Committee on the Financial Aspects of Corporate Governance,’, (London: Gee Limited / Professional Publishing Limited, 1992) p. 21. 

[36] Bhattacharyya, A.K., ‘Transparent Financial Reporting: Essential for Corporate Governance’, Economic Policy, 2012, 17 September. 

[37]Ibid, note 24. 

[38]Ibid, note 24.

[39] Sloan, R.G., ‘Financial Accounting and Corporate Governance: Discussion’, Journal of Accounting and Economics, 32:1-3, 2001, pp. 337-347.  

[40] Rezaee, Z., Causes, Consequences and Deterrence of Financial Statement Fraud,’ Critical Perspectives on Accounting, 16:3, 2005, pp. 277-298.

[41] Arvanitidouetal, V. ‘The Role of Financial Accounting Inormation in Strengthening Corporate Control Mechanisms to Allenate Corporate Corruption; University of Macedonia, Greece 

[42] Barth, M.E. & Sdipper, K., ‘Financial Reporting Transparency’, Journal of Accounting, Auditing & Finance, 23:2, 2008, pp 173-190. 

[43] Parker, L.D., ‘Financial and External Reporting Research; the Broadening Corporate Governance Challenge’, Accounting and Business Research, 37:1, 2007, pp 39-54.  

[44] Baker, R. & Idallagey, P., ‘The Future of Financial Reporting in Europe: Its Role in Corporate Governance, The International Journal of Accounting, 35:2, 2000, pp. 173-187  

[45] Rezaee, Z., ‘Courses, Consequences, and Difference of Financial Statement Fraud,’ Critical Perspectives on Accounting, 16:3, 2005, pp. 277-298. 

[46] Dooly, D.V., ‘Financial Fraud: Accounting Theory and Practice’, Fordham Journal of Corporate & Financial Law, September, 8 2002, pp. 53-88. 

[47] Fahnestock, R.T. & Yost, G.C., ‘The Rationale for and Implications of Recent Business Failures on the Accounting Professions,’ Journal of Accounting and Fiancé Research, 12:5, 2004, pp. 18-131. 

[48] Imphoff, E.A., ‘Accounting Quality, Auditing and Corporate Governance,’ Accounting Horizons, September 17, 2007, pp. 117-128.  

[49] Norwani, N.M., et al, ‘Corporate Governance Failure and Its Impact on Financial Reporting Within Selected Companies’, International Journal of Business and Social Science, vol. 2 No 1 (November, 2011), p. 207.    

[50] Ibid, note 37, p. 208.

[51]Ibid, note 37, p. 209..

[52] Companies and Allied Matters Act (CAMA), Cap. C20, Laws of the Federation of Nigeria, 2004, S. 334(2). 

[53] Ibid, note 40, section 334(3).

[54] Aguolu, O., Fundamentals of Auditing, 3rd edn, (Institute for Development Studies, Nigeria, pp. 578-581.  

[55] Asvanitidouetal, V., ‘The Role of Financial Accounting Information in Strengthening Corporate Control Mechanisms to Alleviate Corporate Corruption, University of Macedonia, Greece.

[56] Udu, E.A., Principles of Company Law and Practice in Nigeria, op. cit., note 18, p. 230.

[57] Alabede, J.O., ‘The Role, Compromise and Problems of the External Auditor in Corporate Governance’, Research Journal of Finance and Accounting, Vol. 3 No 9 (2012), available at URL www.iiste.org, accessed on 21/09/ 2013. p. 119   

[58] ‘The Enron Case Study: History, Ethics and Governance Failures, available at: http://www.applied-corporate-governance.com/enron-case-study.html, accessed on 23/03/ 2018.

[59]Ibid, note 44, p.120.

[60] Norwani, N.M., et al, ‘Corporate Governance Failure and its Impact on Financial Reporting Within Selected Companies’, International Journal of Business and Social Science, vol. 2 No 1 (November, 2011), p. 208.

[61] ‘The Perwaja Steel Scandal,’ available at: https://wtfreport.wordpress.com/2011/12/15/the-perwaja-steel-scandal/, accessed on 23/03/ 2018.

[62] Available at: www.nortonrosefulbright.com/knowledge,accessed on 26/02/2018.

[63] Orojo, J.O., Company Law and Practice in Nigeria, 5th edition (London: Lexis Nexis, 2008) p.303.

[64] Bourne, N., Principles of Company Law, 3rd edition, (London: Cavendish Publishing Ltd, 1998) p.203.

[65] Companies and Allied Matters Act, op. cit, (footnote 1), section 342(2).

[66]Ibid, note 50, section 342.

[67]Ibid, note 50, section 342.

[68]Ibid, note 50, section 342 (3).

[69]Ibid, note 50, section 342(1)(a).

[70]Ibid, note 50, section 342(1)(b).

[71]Ibid, note 50, section 342 (6).

[72] Companies and Allied Matters Act, op. cit, note 1, section 342(7).

[73] Companies and Allied Matters Act, op. cit, note 1, section 334.

[74] Meaning there is no regulatory requirement or accounting guide-lines that applies to it.

[75] As a result of the exaggeration of good news of profits or economic presentation of facts of loss, the unsophisticated investors may be misled by optimistic message presented by the chairman.

[76] ‘Securities Industries Development Corporation’, available at: www.min.com.my/articles/investment, accessed on 2/03/ 2018.

[77] J.O. Orojo, op. cit, note 48, pp. 278-279.

[78] Companies and Allied Matters Act, op. cit, note 1, section 267(1).

[79] Companies and Allied Matters Act, op. cit, note 50, section 267(2).

[80]Ibid, note 62, section 267(2).

[81] J.O. Orojo, op. cit., note 48, pp. 279-280.

[82] Sealy, L.S., Cases and Materials in Company Law, Sixth edition, (London: Butterwork, 1996) p.585; Bauley, J. and lain MC Callum, Company Law, (London: Heine Mann, 1990), p.8.

[83] Cadbury Report (1992).

[84] Companies and Allied Matters Act (CAMA), op. cit, note 50, section 94-98.

[85] Orojo, op cit., note 48, p.202.

[87] See sections 340 and 341 of CAMA; see also sections 273 and 277 of CAMA.

[88] Ofo, N., Corporate Governance in Nigeria: Prospects and Problems’, Apogee Journal of Business Property and Constitutional Law, Vol. 1 No.4, (2010), p.20.

[89] Badaiki, A., ‘Exercise of Company’s Powers and Shareholders’ Control of Corporate Management’, LASU Law Journal. Vol. IV, Issue 1 (2001) p.79.

[90] Companies and Allied Matters Act, op. cit, note 50, section 342.

[91] Bourne, N., op. cit., note 49, p.203.

[92] Companies and Allied Matters Act, op. cit., note 1, section 334(2).

[93] Gan, L., et al, Social and Environmental Reporting, available at: https://www.slideshare.net/NaomiODonoghue/social-and-environmental-reporting-an-essay, accessed on 24/03/2018.

[94] The Concept of Corporate Social Responsibility may be seen as the moral and ethical content of managerial and corporate decisions over and above the programmatic requirement imposed by legal principle and market economy 

[95] Seberu, O.J. and Aremu, O.S., Department of Banking and Finance: The Polytechnic, (Ibadan Nigeria, 2010) p.96.

[96] Kaur, P., ‘Social Reporting: Meaning, Uses and Scope’, available at: http://www.yourarticlelibrary.com/accounting/financial-reporting/social-reporting-meaning-uses-and-scope/57360, accessed on 24/03/2018.

[97] Cap. E12, Laws of the Federation of Nigeria, 2004.

[98] Article 1 (VI) of Expoo Convention defined Environmental Impact Assessment as ‘a national procedure for evaluating the likely impact of a proposed activity on the environment.

[99] Environmental Impact Assessment Act (EIAA), Section 1(a).

[100] Environmental Impact Assessment Act, op. cit., note 78, section.62.

[101]Ibid, note 78 section 1c.

[102] Omaka, C.A., ‘The Concept of Environmental Impact Assessment in Nigeria’, Ebonyi, State University Law Journal, Vol. 2 No 1 (2007) p. 67.

[103] Companies and Allied Matters Act, op. cit, note 50, section 27(1)(c).

[104]Re Horsley and Wright Limited (1982) ch. 442 cited in Omotola, J.A., Environmental Laws Including Compensation (Lagos: UNILAG, 1990) p. 82.

[105] Omotola, J.A. op. cit., note 83, pp. 82-83.

[106] National Policy on Environment, available at: http://www.nesrea.gov.ng/wp-content/uploads/2017/09/National-Policy-on-Environment.pdf, accessed on 24/03/2018.

[107] Available at: https://www.guinness-nigeria.com/gn-foundation/health/, accessed on 24/03/2018.

[108] Available at: http://www.uac.edu.au/equity/, accessed on 24/03/2018.

[109] Available at: https://ngstudents.com/2018/03/19/apply-for-pz-cussons-chemistry-challenge-2018-http-pzchemistrychallenge-com/, accessed on 24/03/2018.

[110] Available at: http://ncfnigeria.org/news-publications/ncf-news/itemlist/category/6-about-ncf?start=14, accessed on 24/03/2018.

[111] Available at: http://www.fcmb.com/csr, accessed on 24/03/2018.

[112] Available at: https://www.unitybankng.com/download/UnityBank_Plc_Annual_Report_and_Accounts2_2014.pdf, accessed on 24/03/2018.

[113] Omotola, J.A., op. cit, note 84 p. 84.

[114] Imoh-Ita, I., ‘Corporate Social Responsibility of Mobil Producing Unlimited and Julius Berger Nigeria Limited

in Akwa Ibom State’, British Journal of Humanities and Social Sciences, 73 April 2015, Vol.13(1), p. 77.

[115] Ibid, note 85, p. 84.

[116] Black’s Law Dictionary, 8th Editions.

[117] World Commission on Environment and Development (1987) Report, also known as Brundt Land report.

[118] Financial Reporting Council of Nigeria Act, No. 6, 2011, sections 8(2), 30 and 53(2).

 

 

A Comparative Analysis of Financial Assistance to States by the Central Government in Nigeria and America 

By Olufemi Abifarin (PhD, College of Law), Joseph Ayo Babalola (University Ikeji- Arakeji), J.O. Olatoke (PhD SAN Faculty of Law University of Ilorin) and E.A. Adesina (Dept of General studies Lagos State Polytechnic Ikorodu Lagos).

Abstract

This paper discusses the constitutionality of the bailout granted to the states by the Federal government of Nigeria. We define and distinguish bailout from Grant-in-aid and pointed out that the federal government did not follow the constitutional procedure of granting aid to states. The Constitution did not use the word bail out but rather mentions grants to states and bailout now the terminology used by every Nigerian today. It is the thrust of this paper that the federal government should have used the appropriate terminology used in the Constitution to describe the assistance of the federal government to the states. The piece is concluded by reiterating that the bailout or grant is not contemplated by the Constitution as loans but financial assistance to states to carry out specific projects or to pay salaries, and the release of the bailout to states without approval of the National Assembly is a fundamental error that should be corrected in future grants while extra-budgetary grants to states is a flagrant violation of the constitution.

Introduction

At the inception of Buhari administration on May 29, 2015 the states of the Federation of Nigeria were in serious financial crisis to the extent that it became difficult for them to pay salaries and allowances to their workers for upwards of eight months.[1] The Governors of the affected states dropped their political differences and came together to approach the president for financial assistance to bail them out of the problem.[2] This request is in addition to their monthly statutory allocation from the federation account as stipulated in Section 162(4) of the 1999 Constitution as amended. Their internally generated revenue is marginal because no serious effort has been made by the States to improve, even in the face of dwindling oil resources occasioned by fall in price of crude oil in the international market.[3]

The President relying on Section 164(1) of the Constitution granted the request of the Governors for financial assistance and released the sum of 700 billion naira with certain conditionalities attached to the release of the money from the Central Bank of Nigeria. It was later discovered that the money released was not a grant or financial assistance but a loan to be repaid within 20 years.[4] The states requested 18 months’ moratorium on the repayment while the federal government granted only one month moratorium.[5] The one month moratorium is in adequate given the indebtedness of these States to their workers and the various labour crises taking place.

Meaning of Grants and Bailout

Before we go further in this discourse, we shall define the terms bailout and grants. Grant-in-aid is defined as a sum of money given by a governmental agency to a person or institution for a specific purpose particularly federal funding for a state public program.[6] The Constitution provides grants for state by specifically stating that the federation may make grants to supplement the revenue of that state and subject to such terms and conditions as may be prescribed by the National Assembly.[7] The Constitution in the marginal note mentioned grant-in-aid[8]. Therefore, it is logical to conclude that grants to state and grant-in-aid to States are synonymous.[9] The American Constitution specifically mentioned grant-in-aid to states.[10]

In other words, for the state to qualify for the grant, the state need not be in debt. The grant can be made to state to carry out some specific infrastructural projects,[11] while a bailout is defined as a rescue of an entity usually a corporation or an industry from financial trouble.[12] A bailout is normally to help an entity from financial trouble, rather than for any specific project like grant-in-aid. It can be granted to states to assist in financial crisis. The term ‘bailout’ suited the situation of States in Nigeria before the grant but since Nigerian government is based on the Constitution,[13] it is better to use the Constitutional term in describing actions of government. It is better to locate any action of government within the Constitution and other organic laws, rather than using terminology that is not contemplated by the Constitution.

Nigeria government has made this error before. For instance, while the Constitution made use of the word ‘removal’ of President or Governor[14] from office, the courts and the general populace prefer to use the term impeachment[15]. Also, the Constitution made use of ‘pardon’ and ‘respite’ for convicted criminals, while the government preferred the use of the word ‘amnesty’ to describe the type of pardon granted to repentant militants of the Niger Delta of Nigeria.[16] Nigeria as a Constitutional democracy- should therefore rethink its use of appropriate phrases in accordance with the provisions of the Constitution instead of using words or terms that are outside the Constitution. Grants and bailout are not synonymous. Therefore, although our states needed bailout but our Constitution did not make provision for bailout but rather, only grants to states. According to Justice Niki Tobi:

“Before I proceed to analyse this section: I should take a matter by the way at large. It is the use if the word “impeachment”. The word is used freely and indiscriminately by the parties. The two courts below also used the expression freely, though not indiscriminately. Where do they get the word in section 188 of the Constitution, I ask? It is clear from the section I have stated above that there is no such word in the section, and there is no such word in the section. And so I ask once again, where do all counsel and the court get the word? Because I did not want to hide my ignorance (if he is an ignorance at all on the issue), I raised it during the hearing of the appeal. Mr. Ayanlaja graciously called my attention to section 191 of the Constitution where the word is used. That did not satisfy my query. The action was filed on the basis of section 188 and not on the basis of section 19(1) Section 191 (1) merely provides that the Deputy Governor of a State “shall hold the office of the Governor of the State if the office of Governor becomes vacant by reason of death, resignation impeachment, permanent incapacity or removal of the Governor from office…[17]

In view of the fact that the action was brought under the section 188, it is my view that the originating summons and all that follow by way of other court processes and proceedings should honestly and loyally follow the wording of section 188. This was not the position in the first relief and a number of other court processes. In the first relief, the plaintiffs/respondents claimed:

“A declaration that the purported Notice of Allegation of Misconduct made against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State, as a preparatory step to his impeachment by the Defendants is unconstitutional, null and void, and of no effect whatsoever, having regard to the provisions of section 188(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria.”[18]

Section 188(1) and (2) does not provide for the word “impeachment”. The appropriate word is removal, although section 188(1) contains the verb “removal” in the circumstances, the first relief should have used the word “removal” in the place of “impeachment”. What is the meaning of impeachment? Black’s Law Dictionary defines the word as follows:

“A criminal proceeding against a public officer, before a quasi-political court, instituted by a written accusation called articles of impeachment; for example a written accusation of the House of Representatives of the United State to the Senate of the United State against the President, Vice President, or an officer of the United State, including Federal Judges.”[19]

This definition with a slant for the United States Constitution does not totally reflect the consent of section 188 of the Constitution, as it conveys an element of criminality. Section 188 is not so worded. The section covers both civil and criminal conduct. I am not saying that the definition vindicates the totality of the impeachment provisions of the United State Constitution but it is my view that the word should not be used as a substitute for the removal of provisions of the section 188 procedure one for the removal of Governor or Deputy Governor, not of impeachment.[20] Nigeria as a sovereign State should obey the law as it is and not resort to twisting the law as it ought to be.

Bailout or Grant from which Account?

A pertinent question to ask is: From what account should the Federal Government bring the grants to states? The answer to this question can be found in the Constitution. It is clear from the provisions of the Constitution that the federal government can only make grants to the states from its own account. This means the federal government from its own account after the federation account had been shared in accordance with the provisions of the Constitution.[21]

The federal government cannot make grant to any state from the federation account because the federation account belongs to the three tiers of government[22]. But when any money in that account has been shared, then the federal government can make a grant to any state from its own share of the federation account[23]. The federation account is the distributable pull account according to S162 of the Constitution. All tiers of government can also decide to create a reserve fund from which grants can be made to the States on demand, such as the excess crude oil account, which is separated before the rest is shared.

The National Assembly has a duty to pass the Appropriation Bill into law. The Appropriation Bill is the national budget which consists of income and expenditure of the federation and provision is made for the share of each state and local government in the budget. This share of the budget that belongs to the states and local governments is referred to as ‘monthly statutory allocation’ which states and local government rely heavily upon to the neglect of their internally generated revenue. The Constitution provides for this allocation in Section 162 (4).

Purpose of the Grant

Each state applying for federal grant must state the purpose for which the money will be applied. The state must apply the money for the purpose of the grant. If the grant was approved by the National Assembly, it sets the criteria for the use and conditions and terms which the state must comply with.[24] But since the executive have refused to take it to the National Assembly to approve, the NASS[25] is unable to effectively monitor the application of the grant to the states. This was why so many states are accusing their governors of misuse of the funds.

Is the Grant/Bailout a Loan, Assistance or Gift?

The grant or bailout is supposed to provide financial assistance to the state concerned, and not a loan.[26] A state has the right to apply for a loan from the Federal Government, and the Federal Government has the right to grant the loan or refuse to grant the loan. But the grant or bailout envisaged by Section 164(1) of the 1999 Constitution cannot be a loan but financial assistance to a state concerned. Therefore, the conversion of the grant to loan for states has not only compounded the problems of the state, but is also illegal. The bailout is now a burden instead of being a relief to the states.  This paper has argued that the grant envisaged by Section164 (1) of the Constitution is supposed to be a gift to the states, to help the states out of their financial crises.

Procedure for making Grants to States

The procedure for making federal grants to states in Nigeria is stated clearly in the Constitution. The Constitution states clearly that the NASS must approve any grant before it can be effective.[27] But in Nigeria, this procedure was breached because some argued that since the money has been appropriated in the budget as grant to state, it need not pass through the National Assembly again. Even newspaper reports show that the so-called bailout in Nigeria is extra budgetary,[28] which gives more reason as to why the National Assembly should be relevant in the exercise. An extra-ordinary expenditure is an expenditure that is outside the national budget as approved by the NASS. The Nigerian Constitution does not give room for extra-budgetary spending. This must either be a budget or supplementary budget.

While we are unable to support this argument because a sum may truly be set aside in the National budget as grants to states, it is speculative in the sense that no state can be pinned down for such a grant at the stage of budget approval. But within the year, when states begin to make requests to the Federal Government for financial assistance, the proposed grants by the executive should be presented to the National assembly for approval. These proposed grants will not only name the states concerned, but also name the amount granted and the purpose for which it is granted.[29] This will also enable the National Assembly to set up a Monitoring Committee to superintend over the prudent management of the grant. This is referred to as oversight function of the National Assembly over the fund, and due to the fund belonging to the Federal Government. This leads us to the next question:

Can the National Assembly Monitor the Grant?

This question is also important in view of the provisions of the Constitutions that stated the legislative jurisdiction of the National Assembly and States House of Assembly[30]. This question is also important because APC[31] Ekiti State alleged that the State Governor had misappropriated its bailout fund instead of using it for payment of salaries and allowances of workers[32]. Other States also alleged misappropriation of the fund and Citizens of the states called on the National Assembly instead of the States Houses of Assembly to probe the use of the money by the State Government[33].

To have a clear picture of the legislative limits of both the National Assembly and State Houses of Assembly, it is apt to relay the entire provisions of the constitutions on legislative powers of the Federation and the States in Nigeria. 

Legislative Power of the Federal Republic of Nigeria

The Constitution provides that:

  1. The legislative powers of the Federal Republic of Nigeria shall be vested for the National Assembly for the Federation which shall consist of a Senate and a House of Representatives.[34]
  2. The National Assembly shall have powers to make laws for peace, order and good government of the Federation or any parts thereof with respect to any matter included in the Exclusive Legislative list set out in Part 1of the Second Schedule to this Constitution[35].
  3. The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in the Constitution, to be the conclusion to the Houses of Assembly[36].
  4. In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say-[37]
  • Any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the school column opposite thereto; and[38]
  • Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.[39]

     5. If any law enacted by the House of Assembly of a State is inconsistent with any law validity made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to        the extent of the inconsistency be void.[40]

    6. The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.

    7. The House of Assembly of a State shall have power to make law for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say-[41]

  • Any matter not inclined in the Exclusive Legislature List set out in Part I of the Second Schedule to this Constitution.[42]
  • Any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and[43]
  • Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.[44]

    8. Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly should not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.[45]

    9. Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.[46]

How the Legislative Power is Exercised in Practice

In a federation, the national government is a government exercising limited or enumerated powers. Almost all the powers exercisable by the national and state governments are listed in the Constitution. The federal government has no power other than what is granted to it in the Constitution or that could be reasonably implied from the Constitution.[47] It is the state government that have the residue of power (residual power).[48] In theory, states are nearly as restricted in powers as is the national since the Constitution defines these powers. As could be gleaned from Section 4 of the Constitution, the National Assembly has its legislative powers spelled out clearly in Section 4(1), (2), (3) and (4) of the Constitution, while Section 4(5) asserts the supremacy of any law made by the National Assembly when there is any conflict between it and any law made by the House of Assembly of State.[49] This Section also resolved the issues of the doctrine of covering the field in legislation.

The legislative power of the State House of Assembly is defined by Section 4(6) and (7) while Section 4(8) subjects the laws made by either the National Assembly or State House of Assembly to judicial review by the courts, and Section 4(9) preclude the legislature from making retrospective criminal law. This has been extended to retrospective civil law by the Courts.25a On the general intendment of Section 4, the Supreme Court had ruled on the Superiority of the Federal government that:

“…a situation where the Chief Executive of the country or a federal functionary could be Subject to Sanction by a State House of Assembly or State Chief Executive or functionary could be subject to authority of National Assembly would offend not only against the spirit but the letters of the Constitution. Each of the States’ legislative Assemblies and the National Assembly is Sovereign in its own house neither interferes with the government of the others. This is the true basis of federalism; to be otherwise would lead to anarchy…”[50]

Looking closely at this Statement of the Supreme Court, it is the State House of Assembly that has power of oversight over the activities of the state government but where federal special grant is involved, it is logical for the National Assembly to be vested with power to oversee the prudent management of the grant especially if the grant was approved by National Assembly under Section 164(1). Yet, where the President by-passed the National Assembly in making the grant, the National Assembly has no business in overseeing the prudent management of the grant. The National Assembly has the power to query the action of the President however, as a violation of the Constitution. As such, we will now examine how American government handles a similar provision in its Constitution.

Grant In-Aid in America

In a paper of this nature, it is not out of place to compare the Nigerian Constitution with that of United States of America U.S. because both are operating federalism and presidential system of government. In the U.S., the federal government can and does make grants-in-aid to state governments whereby federal monies are spent under state supervision.[51] A modern development of federalism has been the emergence of grant-in-aid. A grant-in-aid is assistance, usually financial given to one political jurisdiction by another to be augmented and spent for a specified purpose.[52] Grants made by the federal government to states usually carry five conditions in America. These are (1) that the granted funds be used only for the stipulated activities (2) that the funds be supplemented by state funds as a marching basis (3) that the federal government maybe set standards and inspect results (4) that a separate administrative agency may set up to perform the activities and (5) that merit rather than politics, control the selection and management of the personnel to administer the grant.[53]

In America, the spending power of the National government is derived from section 8 of Article 1 of the constitution. The government may spend money on paying its debt, providing for the defence of the country and providing for the general welfare of the citizens and there are three constitutional restrictions on the spending power of the federal government, namely; (1) no money may be spent except on appropriation by the congress (2) a statement of receipts and expenditure must be published from time to time and (3) appropriation or the money may not extend for a longer period of two years.[54]

What is important about American grant-in-aid is that no money can be granted to any state by way of assistance without appropriation by the Congress.

This same principle should hold for Nigeria as section 164 (1) is not ambiguous but clear and simple.[55]

Another important aspect of American federalism is that states are expected to grant aid to local government, just as the Constitution of Nigeria makes provision for states to give to local government parts of its internally generated revenue. But instead of this, states are grabbing and diverting local government revenue to their use in Nigeria thereby impoverishing the local governments whereas in America the federal government grants not less than $10 billion to states, while states grant not less than $30 billion to local government annually.[56]

Concluding Remarks

We have examined critically the grant or bailout to states by the federal government and observed that the financial assistance to states by the federal government was referred to as grants by the constitution therefore the use of the word bailout is abnormal. We also observed that the president who is the chief executive of the federation unilaterally disbursed the funds to the states without recourse to the National Assembly which amounted to violation of the Constitution[57]. We noted that the National Assembly that is supposed to protest the bypassing of the institution by the President made a faint protest, and this has caused the Executive to progress in its errors and the bypassing of the National Assembly in making the grant that has robbed the National Assembly of its power of oversight on the prudent management of the fund.

We equally observed that the grant that is supposed to be a gift or financial assistance to the states as contemplated by section 164 (1) is now turned to loans, thereby compounding the financial crises of the states instead of it serving as a relief to the states. We also contrasted the Nigerian situation with America and concluded that such grants in America normally pass through the Congress, and then Congress set conditions of grants and monitor the execution of any project that the grant is to be used to execute.

We also observed that ours is extra-budgetary grant or bailout in Nigeria.[58] The constitution does not contemplate extra-budgetary spending, which is why there exists provisions for supplementary budget in section 164 (1).

Recommendations

The Executive should always obey the Constitution by securing legislative approval for future grants to states. The intended grants to states within a year should be captured in the budget of that year, and even if the specific states and the amount granted is not stated in the budget, the subsequent approval by the National Assembly will contain the name of the states and the amount approved for those States. The National Assembly should also set the terms and conditions of the grant, and monitor the spending of the grant by ensuring that it is spent on the subject matter of the grant.

The National Assembly should ensure that there is no extra budgetary grant to states- any grant should either be captured by the annual budget or supplementary budget. The government should also ensure it uses the correct grant used by the Constitution, instead of bailout that is not used by the Constitution. The grant is not designated to be a loan but a gift for financial assistance to states.

Footnotes

[1] Bashir.A. Ramoni Constitutionality of Bailout funds for States and Alternative Remedy, The Guardian 26 January 2016 P47 Najeem A. O. Ijaiya, Olufemi Abifarin and Oladoyin Awoyale Granting of Bailout Funds to State by the president of Nigeria: A Relief or a Burden Joseph Ayo Babalola University Law Journal vol3 No1 (2016) P90

[2] Ibid                                                               

[3] O. Akaaka, Natural Gas Development in Nigeria: The Legal Perspectives Rivers State University of Science and Technology Law Journal vol 1 2003 p 198

[4] Ibid

[5] Ibid

[6] Black’s Law Dictionary 8th Edition Thompson West Publication USA 2008 P 720

[7] Section 164 (1)

[8] Section 164 (1) Marginal note

[9] See marginal note to Section 164 (1) e.g federal granting in aid to State revenue

[10] Robert B. Possey American Government

[11] Ibid

[12] Black’s Law Dictionary P152

[13] Section 1(2) of the 1999 Constitution of FRN as amended.

[14] Section 143

[15] Section 188 of the Constitution

[16] Alhaji Abdulkadir Balarabe Musa V Speaker, Kaduna House of Assembly 1982 (3) NCLR 450 Abaribe v Speaker Abia, House of Assembly 2003 1 CHR 225. See Complaint of Justice

[17] Per Niki Tobi at 354

[18] Per Niki Tobi at 355

[19] Per Niki Tobi at 355

[20] Niki Tobi in Adeleke v Inakoju 2000 (pt 353) p 1 at 80, Contrary to Section 175 of the Constitution

[21] Section 162 (1)

[22] Section 162 (3)

[23] B.A. Ramoni Op Cit note 1

[24] Section 162 (1)

[25] National Assembly, then INEC V Musa 2003 3 NWLR (part 806) 72

[26] Najeem A.O. Ijaiya, Olufemi Abifarin and Oladoyin Awoyale Granting of Bailout to States by the president of Nigeria, A relief or burden Joseph Ayo Babalola University law Journal Vol 3 No 1 (2016 P90) see also Bashir A. Ramoni 26 January 2017 P 47.

[27] Section 164 (1)

[28] #1.75 trillion Extra-budgetary bailout for States The Guardian 5 may 2017 p 1

[29] Robert. B Posey op cit #1.75 trillion The Guardian 5 may 2017 p 1

[30] Section 4 (2) and Section 4 (7)

[31] All Progressive Congress

[32] Bailout funds: EFCC probes Fayose’s government over alleged diversion the nation onlineng.net>bailout-funds-EFCC accessed on 24-3-18

[33] You can’t probe how I spent bailout funds Fayose tells Senate http://www.premiumtimesng.com>news accessed on 24-3-18

[34] Section 4(1) of the 1999 Constitution of FRN as amended

[35] Section 4(2)

[36] Section 4(3)

[37] Section 4(4)

[38] Section 4(5)

[39] Section 4 (6)

[40] Section 4(7)

[41] Section 4 (7) (1)

[42] Section 4 (7) (a)

[43] Section 4 (7) (b)

[44] Section 4 (7) (c)

[45] Section 4 (8)

[46] Section 4 (9)

[47] Robert.B. possey op cit

[48] Section 4(7)(a), Olufemi Abifarin, DavidF. Atidoga A Critical Analysis of the Scope and limit of legislative power of National Assembly and States Houses of Assembly in Nigeria Confluence Law Journal Vol 1 No 1(2006) P11, Benjamin Ogwo Conflict in the legislature process in Nigeria: The Relevance of the Doctrine of Pith and Substance and Covering the field Confluence Law Journal vol 1 No 1 (2006)P 112

[49] Sections 1 (1) and 4 (5)

[50] Attorney General of Federation V Attorney General of Ogun State 1982 1-2 SC 13 at 115

[51] R.B. Possey Op Cit

[52] Robert B. Possey op cit

[53] Ibid

[54] Ibid

[55] Sections 59, 80, 81, 82 and 83 on Control of Public funds

[56] R.B. Possey op cit

[57] Section 164 (1)

[58] #1.75 trillion Extra-budgetary bailouts for States The Guardian 5 may 2017 p 1

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