UNIVERSITYOFIBADAN [JB LAW JOURNAL4™ Vol. 9, July. 2019 rv< mt\ oi i\» Artides Issues in Child Development in Nigeria 1 -9 Olunta Bertha Nnenna Joy N. Ezeito Impediments to Enforcement of Environmental Treaties against Oil Pollution under International Environmental Law 10-46 Isaac 0 Babatunde. Enobong Mbang Akpambang Examining Some Gains and Pitfalls of Nigeria's Companies 47 - 65 and Allied Matters Act: Urgent Need for Review Ikenga K.E. Oraegbunam. Charles M Ezeh Delimitating the Prosecutorial Powers of Police Officers for 66-81 a More Efficient Criminal Justice Administration in Nigeria Sylvester C Udemezue An Appraisal of the Seminal Innovations between the 82-98 Defunct FEPA Act and NESREA Act in Nigeria Macaulay J. D Akpan An Examination of Consumer Protection and its Link to 99 - 113 Trademark Law in Nigeria Ibijoke P Byron Towards Repositioning the Industrial Arbitration Panel (IA P) for the Effective Settlement of Trade Disputes in Nigeria 114 - 129 David Tarh-Akong Eyongndi Person and Citizen rights in the Constitution of the Republic of Poland 130 - 139 Jaroslaw Skowyra Statelessness: a West African Reality 140 - 149 Adeniyi I. Olatunbosun Autonomy and Management of Federal Universities under the 150 - 160 Universities Autonomy Act P Eht Oshio Corruption as an Anathema to Human Rights Laws and 161 - 180 Practice in Nigeria Dr. O lusegun Onakoya An Assessment of Publications Deposit Law in Nigeria 181-213 Olusesan O liy ide IBADAN UNIVERSITY LIBRARY Ibadan U niversity Press Publishing House U niversity o f Ibadan Ibadan. N igeria ISSN 1595-7047 © 2 0 1 9 Faculty o f Law. U niversity o f Ibadan. N igeria Designed & Printed by: FlyW ox wwvv.nvwox.com p rin tsd Hvwox.com +234 703 8406 891 All rights reserved. No pari o f this puhlication may he reproduced. stored in a retrieval System, or ransmitted in any form or by any means. electronic, mechanical, photocopying, recording. or otherwise. without prior permission o f the Copyright owner. IBADAN UNIVERSITY LIBRARY C ontents Page Editorial Board/Editorial Committee v Guide to A uthors vi Editorial vii Issues in Child Development in Nigeria 1-9 Otunta Bertha Nnenna & Joy N. Ezeilo Impediments to Enforcement of Environmental 10-46 Treaties against Oil Pollution under International Environmental Law Isaac O. Babatunde & Enobong M bang Akpambang Examining Some Gains and Pitfalls of 47-65 Nigeria’s Companies and Allied Matters Act: Urgent Need for Review Ikenga K.E. Oraegbunam & Charles M. EZEH Delimitating the Prosecutorial Powers of 66-81 Police Officers for a More Efficient Criminal Justice Administration in Nigeria Sylvester C. Udemezue An Appraisal of the Seminal Innovations between 82-98 the Dein net FEPA Act and NESREA Act in Nigeria Macaulay J. D. Akpan An Examination of Consumer Protection and its 99-1 13 Link to Trademark Law in Nigeria Dr. Ibijoke P. Byron Towards Repositioning the Industrial 114-129 Arbitration Panel (IAP) for the Effective Settlement of Trade Disputes in Nigeria David Tarh-Akong Eyongndi Person and Citizen rights in the Constitution of the 130-139 Republic of Poland Jarosiaw Skovvyra Statelessness: a West African Reality 140-149 Professor Adeniyi Olatunbosun Autonomy and Management of Federal Universities 150-160 under the Universities Autonomy Act Professor P. Ehi Oshio iv IBADAN UNIVERSITY LIBRARY Corruption as an Anathema to Human Rights Laws and 161-1 80 Practice in Nigeria Dr. Olusegun Onakoya An Assessment of Publications Deposit Law in Nigeria 181-213 Olusesan Oliyidc v IBADAN UNIVERSITY LIBRARY Corruption as an Anathema to Human Rights Laws and Practiee in Nigeria Dr. Olusegun Onakoya* Abstract Corruption. though a universal phenomenon. its menace in Nigeria is alarming as it pervades through everv strata of the society vvith its huge adverse effects on the populace. Over the years. the incidence of corruption has growri to become a 'norm' in Nigeria, vvith the nation becoming a pariah state in the comity of nations. However. the practiee is widely considered to have greater impact on the nation compare to its citizens, it is therefore justifiably domiciled under the Nigerian Criminal Law usually as an offence to be prosecuted by the state on behalf o f its citizens. This paper therefore considers the impact/effect of both private and public corruption on the Human Rights Laws and Practiee in Nigeria, vvith emphasis on analysis of corruption as a violation of the entrenched rights of citizens. Critical issues such as legal framework for human rights and various anti-corruption laws were examined. It is observed that successive governments in Nigeria are usually blamed for economic woes and decay in infrastructure, often attributed to incompetence and negligence while its agencies, such as Police Force. Artned Forces. banks. private persons who are active collaborators are often over-looked. The paper therefore concluded that the impact of corruption could only be holistically measured by the rate of violations of the citizens' rights as provided for by the law and same made punishable. It is further submitted that such infringement on the right of persons occasioned by corrupt practices should not only be tried as abuse of rights but also attract some form of compensation for the victims. Keywords: Corrupt practices. Human Rights. Judicial process. Law reform. Senior Lecturer at the Department of Commercial and Industrial law. Faculty of Law University of Ibadan. Nigeria. segunkoyaa71 @yahoo.com; o.onakoya@mail.ui.edu.ng IBADAN UNIVERSITY LIBRARY Corruption as an Anathema to Human Rights Laws and Practice in Nigeria Corruption: an Anathema to Human Rights Laws and Practice in Nigeria? Corruption is an insidious plague tliat has a wide ränge o f corrosive effects on societies. It undermines democracy and rule of law. Icads to violations o f human rights . . . erodes quality o f life. . Introduction The United Nations. among numerous organisations and agencies has identified corruption as a universal phenomenon with huge adverse etTects on the economies o f the affected nations. Nigeria, like other developing nations has unsuccessfully fought the scourge through diverse means. However, all the efforts o f successive govemments at eradicating the menace have proved abortive. Government at various times enacted laws aimed at combating corruption. with many agencies set-up to ensure proper and effective implementation o f such legislations. Until recently (Fourth Republic). curbing corruption was primarilv considered exclusive business o f government at various levels. Corruption. being a crime is perceived as offence against the state hence the passive attitude o f private persons towards the act.: The reason for this attitude is not far-fetched. as private persons used to perceive the resources stolen or misappropriated as that o f the state and not privately owned. Such resources arc usually informally categorized as 'national-cake' meant to be shared by those opportune to do so.3 However. it is cheering to note that today. members o f the public, non-governmental organizations and human rights groups are now actively involved in anti-graft war. This is borne out o f paradigm shift in the perception o f private persons. who now see state resources as being meant to be equitably distributed or deployed for the benefits o f its citizens. Annan K.A. 2004. Forward to the United nations Convention Against Corruption. Retrieved March 12, 2016 front Intps: www.unodc.ori> documents brussels UN Convention Acainst Cor ruption Much unlike offences of stealing, rape. minder and manslaughter etc. Public officers as defined by the fifth schedule to the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended are persons usually involved in the sharing and ’eating' of the said 'national cake' 162 IBADAN UNIVERSITY LIBRARY University o f Ibadan Law Journal It therefore appears that gradually Nigerians are beginning to see the connection between corruption and enjoym ent o f human rights. PiIlayJ explained the relationship between the two concepts (corruption and human rights) thus: Let us be clear corruption kills . . . Corruption hits the poor first and hardest, breeds impunity o f perpetrators; exacerbates inequity, weakens governance and institutions, erodes public trust. undermines the rule o f law; and denies victims the right to effective redress, thus creating 'a vicious cycle o f crim e.' Human Rights issue had since N igerian 's independence in 1960 become an integral and essential aspect o f the nation's Constitution. Successive Constitution in Nigeria up tili date provides for the "fundamental rights" o f her citizens and these rights are enforceable where one or more o f it is likely to be breached or where breached out rightly. These rights were only discountenanced during the military regimes when the juntas promulgate "the Suspension and modification" decrees by which some provisions o f the Constitution, particularly the aspects bordering on fundamental rights are suspended.' To underscore the central nature o f human rights to citizens life and property, the C hief Justice o f Nigeria, by virtue of the power conferred upon him in section 46(3) CFRN 1999 (as amended) makes rules for the enforcement o f fundamental rights.4 56 A major issue yet to be explicitiy addressed is whether corruption should be analysed and treated as human rights violation. Human rights law does not explicitiy prohibit corruption. while human rights institutions and tribunals rarely apply rigorous human rights analysis to the problem. Similarly. human rights defenders and anti- corruption activists rarely engage or work together on issues of 4 See Annual Report of United Nations High Commissioner and Secretary- General. retrieved April 27, 2016 ffom www.ohchr.org/Documents HR Council Remilar Session/Session23 A.HRC.23.26 HN.pdf 5 Instances of such promulgations include; the Constitution (Suspension) and Modification) Decree No. 1 of 1966 and he Constitution (Suspension of Modification) Decree no. 1 of 1984 which heralded the military take- over. 6 See Fundamental Rights (Enforcement Procedure) Rules 2009. 163 IBADAN UNIVERSITY LIBRARY Corruplion as an Anathema to Human Rights Laws and Practice in Nigeria common interests.7 The ideals o f lofty provisions on human rights that adorn the pages o f our Constitution would not be realisable where the menace o f corruption is not effectively checked. Conceptual Clarifications Etymologically, the word concept is derived from the Latin conceptas or concept am and it means a thing conceived suggesting a mental creation.8 Il is also defined as 'a general notion'. Il is essential that vve delimit the meanings o f the basic concepts that constitute the title o f this work. The basic concepts are: "Corruption". "Human Rights”, “ Rule o f Law" and "Anathem a", all o f which are primary to this paper. C orrup tion According to B lack's Law Dictionary9, corruption is defined as depravity. perversion, or taint; an impairment o f integrity, virtue, or moral principle; especially, the impairment o f a public officials duties by bribery. Corruption is the act o f doing something with an intent to give some advantage inconsistent with official duty and the rights o f others; a fiduciary's or official's use o f a Station or office to procure some benefit either personal ly or for someone eise, contrary to the rights o f others. The United Nations identified corruption as a global menace and deficit to governance defines the endemic problem as: The abuse o f office or private gains, public office is abused for private gain, when an official accepts. solicits or extorts a bribe. It is also abused when private agents actively offer bribe to circumvent public policies and processes for competitive advantage and profit. Public office can also be abused for personal benefit even if no bribery occurs. through patronage and nepotism, the theft of 7 Olaniyan. K. 2014. Corruption and Human Rights Law in Africa Oxford. Hart Publishing. Pp. 6-7. 8 Mavfield. M. 2007. Thinking for Yourself 7"' ed. Boston (MA). Thomas Wadsworth, P. 56. 9 B.A. Garner (ed.) 2004. Black's Law Dictionary. 8"' ed. St. Paul Minn. West Publishing Co. P. 371 I 164 IBADAN UNIVERSITY LIBRARY University oflbadan Law Journal States assets or the diversion o f state revenue.10 1 Nve in his w ork" described corruption as 'behaviour' vvhich deviates from the formal duty o f a public role because o f private-regarding (fam ily or close associates). pecuniary or Status gain. or violates rules against the exercise o f certain types o f private regarding influence. In summary, corruption is a complex social, political and economic phenomenon that affects all countries in varying degree. Corruption undermines democratic institutions. slovvs economic development and contributes to governmental instability. Corruption attacks the foundation o f democratic institutions by distorting electoral processes, preventing the rule o f law and creating bureaucratic quagmires whose only reason for existing is to solicit for bribes. The consequence o f vvhich economic development is stunted because foreign direct investment is discouraged and small businesses within the country often find it impossible to overcome the start-up cost required as a result o f corruption.12 H um an Rights The concept o f human rights founded on the fundamental principle o f human dignity, equality and respect. is tlius inherent to the human condition, and as such has reduced the absolute content o f the concept o f sovereignty13. Rights and freedoms as well as that o f their guarantees cannot be divorced from the System o f values and principles that inspire it. In a democratic society. the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule o f law form a triad .14 15 B lack 's Law D ictionary '3 defines human rights as the freedoms. immunities and beneflts that. according to modern values, all human 10 World Bank. 1997. Helping Couniries to Combat Corruption: The Role o f World Bank. Retrieved May 3, 2016 from http://web.worldbank.org 11 Nye. J. (1967). Corruption and Political Development: A cost-ßenefit analysis. 61 American Political Science Review, p. 421 12 wwv\ unodc.oru en'corruption index htm?ref=inenuside. Retrieved May 3,2016. Olaniyan. K. 2014. Corruption and Human Rights Law in Africa. Oxford Hart Publishing. P. 61. 14 Ibid. p. 59 15 Ibid. p. 758 165 IBADAN UNIVERSITY LIBRARY Corruplion as an Anathema to Human Rights Laws and Practice in Nigeria beings should be able to claim as a m atter o f right in the society in which they live. Simply, human right is the rights o f individuals to liberty and justice16 or rights o f every person as to justice and freedom 17.8 1 In a broader sense. human rights dcpicts the following: the right to life. liberty and security o f person: the right to freedom o f thought. speech and communication o f Information and ideas; freedom of assembly and religion; the right to government through free elections; the right to free movement vvithin the state as free exit from it. the right to asylum in another state; the right to nationality; freedom from arbitrary arrest and interference vvith the privacy o f hörne and family; and prohibition o f slavery and torture; . . . The right to work. to protection against unemployment, and to join trade unions; the right to a Standard o f living adequate for health and well- beings; the right to education; and the right to rest and leisure.1 s Also, human rights are succinctly defined as rights inherent to all human beings, irrespective o f the nationality. place o f residence. sex. national or ethnic origin. colour. religion. language. or any other Status. These rights are all interrelated. interdependent and indivisible.19 In the same vein. fundamental rights, especially those believed to belong to an individual and in vvhose exercise a government may not interfere as the rights to speak. associate. work etc. It is based on principle o f respect for the individual. Their fundamental assumption is that each person is moral and rational being who deserves to be treated with dignity.20 Rule of Law Definitive Statements by Western philosophers and scholars on this subject generally express the concept o f the rule o f law as the absolute supremacy or predominance o f regulär law. enforceable in ordinary courts as opposed to the influence o f arbitrary power. 16 Collins. 2007 Englisli Dictionary Ninth Edition. Glasgow. Harpercollins Publishers, P. 794 17 M. Robinson and G. Davidson (ed.) 1999. Chambers 21" Century Dictionary. Revised Edition. Edinburgh. Chambers Harrap Publishers Ltd. P. 655. 18 See generally, Universal Declaration of Human Rights (1948) and European Convention on Human Rights 1950 (ECHR) 19 Definition ofHuman Rights. Retrieved May7. 2016 from www.tihchr.org 2" ww'w.dictionarv.com browsc humanrighls. retrieved May 7. 2016. 166 IBADAN UNIVERSITY LIBRARY University o f Ibadan Law Journal Rule o f law is the restriction o f the arbitrary exercise o f power by subordinating it to well-defined and established laws. This concept is further defined as absolute predominance or supremacy o f ordinary law o f the land over all citizens, no m atter how powerful.21 Dicey who first expounded the concept based it on three principles that - ( I) legal duties and liability to punishment, o f all citizens. is determined by the ordinary (regulär) law and not by any arbitrary. official fiat, government decree. or wide discretionary-powers. (2) disputes between citizens and government officials are to be determined by the ordinary courts applying ordinary law. and the (3) fundamental rights o f the citizens (freedom o f the person. freedom o f association. freedom o f speech) are rooted in the natural law. and are not dependent on any abstract constitutional concept. declaration. or guaranty.22 A nathem a The word 'anathem a' simply refers to something that is detested or abhorred.2' It could also mean a formal ecclesiastical curse of excommunication or a formal denunciation o f a doctrine. a strong curse or imprecation or something accursed.24 *Such a thing or person is usually greatly dislikcd or detested.2' Anathema also denotes abhorrent, hateful. odious. repugnant, repellant, offensive, abomination. abhorrence. aversion. monstrosity. outrage. evil. disgrace. bane or pariah. Form s o f C orrup tion There are different forms and areas. where corruption manifests and these are diverse. In Nigeria, you lind corruption or corrupt practices in almost every Stratum o f peoples ’daily activities. A broader Classification divides the menace into two major Segments, namely: Retrieved July II. 2016 from www.businessdictionarv.com definition rule-ot-law.html Dicey. A. V. (1982) Introduction io the Study o f Law o f the Constitution. 6"1 edition, London Macmillan and Company Limited, pp. 135-136. r ' Chambers 21sl Century Dictionary (2002) Revised edition, Edinburgh; Chambers Harrap Pubiishers Ltd. p. 43. -1 Collins English Dictionary (2007) Ninth Edition. Glasgour harpencothins Pubiishers, p. 58. The New International Webster’s Comprehensive Dictionary of the English language (2004) Encvclopedic ed. Naples Florida. Tvphoon Int. Corp.. P. 53. 167 IBADAN UNIVERSITY LIBRARY Corruption as an Anathema to Human Rights Laws and Practice in Nigeria (1) private and (2) public sector corruption. The Classification underscores the fact that corruption is everywhere. Aside the above Classification, corruption is also usually classified in term s o f the particular aspect o f life it appears, such as political, bureaucratic. judicial corruption and the likes. There is no doubt that corruption permeates nearly every facets o f private and public life. Private and Public Sector Corruption Corruption in the private sector takes many forrns, among them bribery, undue influence, fraud. money. laundering and collusion. Private sector corruption contributes to environmental damage, health and safety problems. economic instability and human rights violations by diverting scarce resources, both financial and human-'’. This form o f corruption undermines the productivity o f private com pan ies/bus iness enterprises and distorts efficient corporate governance. Companies offen pay bribes or rig bids to win public procurement contracts. Many Companies hide corrupt acts behind secret subsidiaries and partnerships. Or they seek to influence political decision-making illicitly. Others exploit tax laws. construct cartels or abuse legal loopholes. Private Companies have huge influence in many public spheres.62 7 Public Corruption encompasses a breach o f trust and/or abuse of public office by any person entrusted with responsibiIities such Position attracts, usually in collaboration with their private sector accomplices28. In essence, when public officer vvithin the ambit of statutory defmition. (usually at all levels o f government) asks. demands, solicits. accepts. or agrees to receive anything o f value in return for conferment o f unmerited favour or accord Privileges in the course o f performing their official duties. it is known as public corruption. However, there is a strong link and collaboration between the private and public corruption. while the effects are usually damaging to developing economies such as Nigeria. Another broad division or major categorization o f corruption is Political (Grand) and Bureaucratic (Pretty). 26 Smith, D. J. (2007) A Cultiire o f Corruption. New Jersey, Princeton University Press, p. 55. 27 Corruption by topic- Private Sector. Retrieved September 6, 2016 froin www.transDarencv.ora lonic detail private-sector. 28 Public Corruption. Retrieved Sept. 6, 2015 froin littns: uww.law. comell.edu/wex/public-corruption. 168 IBADAN UNIVERSITY LIBRARY University oflbadan Law .Journal Political or Grand Corruption This is defined as the abuse o f political power by the government leaders to extract and accumulate for private enrichment and to use politically corrupt means to maintain their hold on power.29 It is usiially the use o f powers by public officers for unlawful private beneflts. particularly when the act relates vvhether directly or remotely related to their official duties30. Political corruption takes diverse forms. which principal among them are: bribery. extortion. cronyism, patronage, nepotism. graft, embezzlement or the oftlcial misuse o f resources for personal, friends and or relatives benefits. Often. political corruption facilitates criminal enterprises such as money laundering. drug-trafficking and human trafficking among others. This is no doubt 'g rand ', 'huge ' or ‘enormous' in quantum and effect. In any society where political corruption is unrestrained, kleptocracy (which literally means "rule by the thieves") dominates. Naturally. when "political corruption" is mentioned what readily comes to mind. more often than not is electoral fraud but it is more than that. There are situations where alter government is formed, public interests become secondary and government officials divert scarce resources from poor and disadvantaged people. Private, more than public interests dictate policy.31 Bureaucratic or Petty Corruption Bureaucracy has been defined as "governm ent by officials".32 It also means “any administration in which action is impeded by unnecessary official procedures and red tape".33 43Explicitly. the word bureaucracy is defined as a System o f government by officials who are responsible to their department heads and not elected.3J They are found in all the three arms o f government. namely the executive. legislative and judiciary Bureaucratic corruption is therefore the 29 Political corruption. Law and Legal definition. Retrieved Sept. 7, 2016 from http://defmetions.uslegal.eom/p/political-corruption/ Political Corruption. Retrieved Sept. 7, 2016 from Science Daily - littns: www.sciendaih .com 31 Politics and government. Retrieved Sept. 7, 2016 from http: vvvvw.transparencv-ori’ topic details politics and Government. 32 The New Webster’s Dictionary of English Language, international edn. P. 129. Collins English Dictionary. Ninth edn. P. 226. 34 Chambers 2 lsl Century Dictionary. Revised edn. P. 189 169 IBADAN UNIVERSITY LIBRARY Corruption as an Anathema to Human Rights Laws and Practice in Nigeria misuse o f power by public offlcials for personal gain in violation of laws that govern public servants and moral principles. In ils basic form, it occurs when a public servant demands and accepts bribcs or kickback, in Order to perform bis official duties. This specie o f corruption is prevalent in Nigeria and it occurs at all segments and levels o f public administration, such as police stations. schools, tax Offices, custom Services offfees, ministerial Offices and government parastatals. immigration offices, judiciary and others. In Nigeria, people encounter daily bureaucratic corruption which is usually the offshoot o f faulty implementation o f government policies. This form o f corruption has become severely endemic to public life. Judicial Corruption Judicial Corruption or corruption in the judiciary could be summed- up as general misconduct o f judges and other judicial officers through taking and giving o f bribes and other forms o f gratification with a view to influencing the right course o f justice. This sometimes manifests in undue interference or bias during the proceedings in court or giving a ridiculously light sentence upon conviction as a result o f gratification. In Nigeria, sections 98. 98A and 98B o f the Criminal Code Acty' provide for 'official corruption' targeted against misconduct involving bribery, extortion and other similar acts by public offlcials. The provisions o f law cited above. applies to the judicial officers by virtue o f Part II. fifth schedule to the Constitution o f the Federal Republic o f Nigeria 1999 (as amended). ' -5 Ifediore. J. p.. The effects of bureaucratic corruption in economic development: the case of Sub-Saharan African in okafor, C.. Olorunfemi. J. F. and Osuagvvu, A.. Analyzing the effectiveness o f relevant laws and crime control theories in the j'tghl against corruption in Nigeria, being paper presented at 46lh NALT Conference of University of Ilorin. April 22-25, 2013 P. II •,6 Cap. C38 Laws of the Federation of Nigeria (LFN) 2004 ’7 The schedule provides for the dass of offices whose holders are referred to as 'public officers'. It provides inter alia that the Chief Justice of Nigeria, Justices of the Supreme Court. President and Justice of the Court of Appeal, all other judicial officers and all staff of court of law fall within this dass. 170 IBADAN UNIVERSITY LIBRARY University o f Ibat /an Law Journal Similarly. Section 1(1) o f the Criminal Code Act States that, 'judicial officer' includes the C hief Judge and a Judge o f High Court, a Magistrate, the President and .lustice o f the Court o f Appeal, the Chief Judge and Judges o f the Federal High, the C hief .lustice of Nigeria and a .lustice o f the Supreme Court, and when engaged in any judicial act or proceeding or inquiry. an administrative officer. In addition to the aforestated provisions. section 98C (3) provides for additional d a ss o f officers, so classified as judicial officers thus: (3) In this section. "Judicial officer" mans. in addition to the officers mentioned in the definition o f that expression contained in section l(i) o f this code - (a) a member o f a customary court; (b) a member o f a juvenile court: (c) an arbitrator. umpire or refree: (d) a person called upon to serve as an assessor in any civil or criminal proceedings; (e) a member o f a jury; (0 a member of a tribunal o f inquiry constituted under the Tribunals o f inquiry Act: and (g) any person before whom, under any law in force in Nigeria or any part thereof. there may be held proceedings in which evidence may be taken on oath. An interesting angle to the Provision o f law; specifically enacted to cover the process o f prosecuting corrupt judicial officers is contained in section 98C which provides inter alia that- (1) A judicial officer cannot be arrested without warrant for an offence under section 98. 98A or 98 B o f this code. (2) No proceedings for an office under section 98. 98A or 98B o f this Code shall be instituted against a judicial officer except on a complaint or information signed by or on behalf o f the Attorney-General o f the Federation or by or on behalf o f the Attorney-General o f the State in which the offence is alleged to have been committed... 171 IBADAN UNIVERSITY LIBRARY Corruption as an Anathema to Human Rights Laws and Practice in Nigeria It is evident that the above provision o f law seeks to protect judicial officers from frivolous arrests given the sensitive position they occupy. Judicial corruption in its wildest form involves a deviation from certain accepted Standards o f behaviour not only for material or non-material gains, such as the furtherance o f personal or Professional ambitions. but also involve moral turpitude and violation o f judicial ethics all o f which in the long run affect the independence and impartiality o f the judiciary. According to Sagay. corruption by a judge is a crime that should be classified as a crime against hum anity because it erodes the trust and confidence o f the people in judicial process.38 Legal Framework for Human Rights in Nigeria In Nigeria, the successive constitutions enacted into law since independence had always provide for the protection o f human and (peoples) inalienable rights. The Constitution o f the Federal Republic o f Nigeria. 1979 and 1999 respectively provides for "Fundamental Human Rights" which clearly speit out the enforceable rights. The following are the outline o f the fundamental rights recognized by the CFRN 1999 (as amended). i. Right to Life39 ii. Right to enjoy respect for the dignity o f person4'1 iii. Right to personal liberty41 iv. Right to fair hearing42 in judicial process (or quasi or administrative panels). 58 "Corruption in judiciary, Crime against humanity." The Punch October 18. 2016. Retrieved March 1. 2017 from http: •punchng.convcorruption- iudiciarv-crime-humanitv-savs-saaav :'q Section 33(i) further States that no one shall be intentionally deprived of his life. 40 Section 34(a0-(c) provides further no person shall be subject to torture or to inhuman or degrading treatment. no person shall be held in slavery or servitude , and that no person shall be required to perform forced or compulsory labour. 41 See generally section 35(1) of CFRN 1999 (as amended). this right includes Talse' or unjust incarceration. Hovvever. it becomes imperative to note that the provision in subsections (I) (a)-(0. (2)-(7) have considerably whittle down the potency of the said provision of law. 4: Section 36(1) refers. Even though, with its avalanche of provision it remains one of the most enforced rights in Nigeria particularly by the 172 IBADAN UNIVERSITY LIBRARY Universiiy o f Ibadan Law Journal v. The right to privacy o f citizens, their homes, correspondence, telephone conversations and telegraphic communication and protection.'1’’ vi. Fundamental right lo Ireedom o f thought, conscience and religion. including freedom to change ones religion or belief, and also right to propagate such religion or belief in worship, teaching, practice and observance.* 44 vii. Freedoms o f expression. right o f persons to hold opinions. receive and impart ideas and Information without interference.45 46 viii. Right to associate and assemble freely without any inhibition.16 ix. Right to move freely and reside in any part o f Nigeria.47 x. Right not to be discriminated against by virtue o f tribe, place o f origin. sex. religion or political opinion/affiliations.48 xi. Rights to acquire and own immovable property in any part o f Nigeria and protection o f such real property or chatteis from being compulsorily acquired.49 50 Similarly. the African Charter on Human and People's Rights (ratification and enforcement Act'’0) o f which N igeria is a signatory and domesticated provides extensively for 'hum an and peoples rights’. Section 1 o f the Act provides that - As from the comm encem ent o f this Act. the provisions o f the African Charter on Human and judicial arm of government. This right has its roof in the two age-long common law principles. namely: audi alleram pariern and nemo judex in causa sua. *■’ See section 37 ofCFRN 1999 (as amended) 44 Section 38 refers. 45 Section 39 CFRN 1999 (as amended). 46 See general ly the Provision of section 40. 47 See section 41. note also the proviso/limitation in sub-section 2 of the Provision. 48 Section 42 ( I ) - (3) refers. 49 See Sections 43 and 44 of the Constitution respectivelv. Flowever, the proviso to the latter section are too many as to reduce the potencv of. or the effect of the principle provision. The provisos are contained in sun- section 2 (a)-(m) and sub-section 3 thereto. 50 Cap. A9 Laws of Federation of Nigeria 2004. 173 IBADAN UNIVERSITY LIBRARY Corruption as an Anathema to Human Rights Laws and Practice in Nigeria Peoples' Rights which are set out in the schedule to this Act shall. subject as hereunder provided. have force o f law in Nigeria and shall be given full recognition and effect and be applied by all authorilies and persons exercising legislative, executive and judicial powers in N igeria .'1 The Act could be described as an amplified Version o f the CFRN 1999 (as amended). The principal Highlights o f the rights as contained in the Act and obvious extension o f the chapter 4 of CFRN 1999 (as amended) are; (i) rights to liberty and security o f life51 235, (ii) right to enjoy the best attainable state o f physical and mental health; right o f persons to be protected by the state by Provision o f physical and mental health lacilities" and also; right of persons to education54 .5 Article 18(4) o f the Act provides particularly for the aged and the disabled to the extern that they shall have right to special measures o f protection in keeping with their physical or moral needs. The principal legislations examined above and other laws enacted specifically to protect different categories o f persons. such as infants/children. disabled and i11iterates among others are evidence that there are no dearth o f laws as far as human rights protection in Nigeria are concerned. However. a fundamental problem is the very germane issue o f enforcement. particularly o f certain acts which bother on rights violation but usually classified under corrupt practices in most cases by public officers. Effects o f C orrup tion on H um an Rights The principal effect o f corruption in developing countries particularly Nigeria is extreme poverty. The word ‘poverty’ could be diversely defined or explained. Chambers 2 l sl Century D ictionary" defines poverty as the condition o f being poor. want. poor quality. inadequacy or deflciency. It was also described as the condition o f being without adequate food. money etc.; scarcity or 51 The Provision under reference is a direct compliance with Article I of the Act inter-alia compelled members who subscribed to the 'charter' to adopt legislative or other measures to give effect to them. 52 See Article 6 of the Act. 53 Article 16 (1) & (2) the Act. 54 Article 17(1) of the Act. 55 Revised edition. page 1087 174 IBADAN UNIVERSITY LIBRARY University oflbadan Law Journal dearth, a poverty o f idea or absence o f elements conductive to growth and productivity,'6 The United Nations Commission on Human Rights and Sub- Commission on the promotion and protection o f Human Rights in one o f its reports gave a comprehensive definition o f 'poverty ' in the following words - [A] string o f misfortunes; poor living conditions. unhealthy housing. homelessness. failure-often-to appear on the welfare rolls. unemployment. ill-health. inadequate education, marginal ization, and an inability to enter into the life o f societv and assume responsibility. The distinguishing feature is that these deprivations-hunger. overcrowding, disease and illiteracy-are cumulative, each o f them exacerbating the others to forms horizontal vicious circle o f abject poverty.'' In the recent years. a number o f international Organisation at the global and regional levels have identified and admilted the devastating effects o f corruption on the protection o f human rights and development. The effects o f corruption on governance particularly in the developing nations are diverse and have grave effects on human rights, vvhich may be civil, political. economic, social and cultural. as well as right to harness ones potentials given an enabling environment.'* Mis-use or mis-application o f public funds or outright embezzlement o f public resources often hamper the governm ent's desire to provide public services/infrastructures for the benefit o f the people. Such Services ranges from Provision o f good Health facilities. transportation. electricity supply. educational facilities (wcll-equipped libraries, laboratories. qualified and well trained human resources) as well as other welfare Services. In countries where corruption is pervasive. it affects every strata o f governance at all levels. All arm s o f government and their agencies6 857 56 Collins English Dictionary, ninth Edition, page 1274. 57 United Nations Rights Study Series, No. I. 58 Human Rights and anti-corruption, retrieved may 10, 2017 from wwk .ohchr.orü El I Issucs 1) evclopmcm (loodGovernance Paccs Anlicoi ruption.asnx 175 IBADAN UNIVERSITY LIBRARY Corruplion as an Anathema to Human Rights Laws and Practice in Nigeria will under-perform since their performances are impaired by graft. 1t is presently widely acknowledged that corrupt practices among public officers in Nigeria have reached a stage where every right violation are traceable to the vice. The impact o f corruption in Nigeria cannot be over-emphasised. it has led to gross underdevelopment with several millions o f Nigerians at the receiving end. There is no doubt that the preponderance o f corruption has eroded what would have been the gains o f fundamental rights o f Nigerians as clearly speit out by Constitution of the Federal Republic o f Nigeria (CFBN) 1999 (as amended). Arguably. o f what use is right to life when the law enforcement agencies saddle with the responsibility o f protecting life and properties are inadequately equipped to discharge their duties. Corruption and corrupt practices contributed largely to ineffective policing in Nigeria, which invariably has led to increase in waves o f crime, such as murder. armed robbery. kidnapping and terrorism with lots o f lives being lost daily. A recent arms deal scandal in Nigeria, otherwise referred to as "D asuki's arms deal" or "Dasukigate" by Nigerian tabloids is on all fours with the our discourse. A fortner National Security Adviser to the erstwhile President o f Federal Republic o f Nigeria."’ retired Colonel Sambo Dasuki was alleged to have corruptly enriched him self with a huge sum o f $2.2 billion being money earmarked for procurement o f arms for the militarv in its fight against insurgency in Nigeria (fight against Boko Haram terrorist group operating in the North Eastern part of Nigeria). The money was allegedly shared among some stakeholders in President Jonathan 's government and the People Democratic Party o f N igeria.59 60 The suit against Dansuki is still pending in court since when he was first arraigned. The case has witnessed several adjournments. However. what remains uncontroverted is the fact that either no arms were procured for the military or at best the supplies were obsolete and inadequate for effective fight against insurgency. It is submitted that this is a negation o f the Provision o f section 33(1) o f the CFRN, 1999. Though. it seems the letter o f the provision linder reference focused 59 President Goodluck Ebele Jonathan (2011-2015) 6(1 Dasuki’s arms deal scandal and blood of the innocent, retrieved July 1, 2019 from vangaardngr.com. Ever since his arraignment in Suit Number: FHC/IKJ/CS/248/2011 among other cases, he was neither released on bail as directed by court nor his prosecution being done expeditiously. 176 IBADAN UNIVERSITY LIBRARY Universily o f Ibadan Law Journal on govemment extra-judicial deprivation o f lives yet it is undoubtedly the right o f govem m ent to protect the lives o f her citizens. In the same vein. the provision o f 44(1) CFRN 1999 has on many occasions beeil violated by corrupt public officers who sometimes use the influence o f State Governors to revoke the right of occupancy purportedly in Iine with the provisions o f the Land Use Act, 1978 which specifically States that Right o f Occupancy may be revoked for overriding public interest61 o f no little signiflcance is also the subtle move to acquire vast expanse o f land in almost every part of Nigeria for the herdsmen, vvhose pre-occupation is cattle- rearing. In the recent times there have been intractable conflicts between the herdsmen and farmers in some parts o f the country. These conflicts have led to loss o f lives and properties o f innocent Nigerians. For instance, in February 2016. as result o f a clash between herdsmen and farmers in Benue State. 40 persons were killed and about 2,000 persons displaced. Most recently. more than 92 Nigerians were massacred by suspected herdsmen in Benue and Niger State/’2 The Federal Government under the leadership o f President Mohammed Buhari appears to favour the land allocation for herdsmen in different parts o f the country through any process practicable. The initial attcmpl was the unsuccessful grazing bill moved on the floor o f the eight assembly (National Assembly). The bill which was sponsored by Senator Zainab Kure was to provide for the establishment. preservation and control o f National Grazing Reserve Commission and for purposes connected therewith.63 Unsuccessful attempl at passing the said national grazing bill to law paved way for another controversial project,64 w-hich is also aimed 61 See section 28 of the Land Use Act, 1978. This provision was breached in CSS Bookshops Ltd. Registered Trustees of Muslim in Rivers State and 3 Ors. [2005] 11 NWLR 530 at 564 and 577 SC among other cases. 62 A critical analysis of Conflicts between herdsmen and farmers in Nigeria, retrieved July 1. 2019 from https: www.aiol.info hts> 6- National Grazing Bill, retrieved June 30. 2019 from nass.gov.ng 64 The Rural Grazing Area (RUGA) is an arrangement which seeks to settle migrant pastoral families. This also involves land allocation for the 177 IBADAN UNIVERSITY LIBRARY -'-jpiion as an Anathema i Human Rights Laws and Practice in Nigeria at acquiring land from the owners for the use ot the herdsmen. which business is more o f private gains for individuals rather than for the public interest as envisaged bv the Land Use Act. I he chain effect o f corruption is more obvious in Nigeria and other developing countries, when compared to the developed countries. Corruption causes underdevelopment, which in turn causes extreme poverty, extreme poverty allows easily for breach or violation o f human rights. The Constitution o f the Federal Republic o f Nigeria 1999 as amended provides for a lofty Provision on right to fair hearing. O f particular interest is section 36(6) (b) which provides that "every person who is charged with a criminal offence shall be entitled to ... be given adequate time and facilities for the preparation o f his defense... The Nigerian Tribüne in its publication o f March 19. 2017 x-rayed the impact of-the high cost o f litigations on Nigerians and concluded that it has adverse and unfavourable effect.6'’ The bottomline is that poverty which is an offshoot o f corruption may deprive a prospective litiganl from venting his grievances through legal process when he cannot afford the legal expenses. which include. but not limited to; filing fees and solicitors" fees. Therefore. such a person even where the law provides that he has the right to defend him self in person or by legal practitioners o f his own choice is limited due to paucity o f funds. It is noteworthy that the rights accorded Nigerians by virtue o f chapter IV o f CFRN 1999 (as amended) have all beeil eroded through entrenched corruption and corrupt practices both in private and public sectors. It is imperative to note that the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act56 6 which is enforceable in Nigeria is broader in space, compared to the provisions o f the CFRN 1999 (as amended) on the subject. Many of the provisions of the Act are meant to strengthen the rights of Nigerian. however Iike its corrosive effect on the Chapter IV o f purpose to accommodate the herdsmen and their herds. retrieved June 30, 2019 ffoni https://wwvv.pulse.ng>tznhkvc. 65 Costly litigation: Any hope for the common man? retrieved June 30, 2019 from tribuneonline.com. 66 Cap. A9 LFN 2004 178 IBADAN UNIVERSITY LIBRARY Universily oflbadan Law Journal CFRN 1999 (as amendcd), endemic corrupt practices liave rendered the Act largely ineffective. Unfortunately, measures by successive government in Nigeria to ensure that corruption is eradicated liave yielded title or no result. I Iowever. one thing is clear. the States inability to meet the peoples' needs as a result o f corruption is a violation o f the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and other lavvs that guarantee rights o f persons. There is ho doubt that a consistent flght against corruption and corrupt practices is very important to the realization o f human rights, lt is obvious that it ultimately allows for efllcient and proper use o f public resources and ultimately improves citizens' vvell-being. access to public infrastructural facilities and enhances Nigerians' Standard of living.67 A cursory look at the right to the dignity o f human persons and the parlous state o f Nigerian prisons vvhich subject the inmates to inhuman and degrading treatment speaks o f the obvious infraction on the rights o f some o f diese men and women.68 In one o f its editorials, the Punch Newspapers condemned the unwholesome state o f Nigerian prisons as follows: Judged by the parlous state o f its prisons. Nigeria is a nasty and underdeveloped country feigning to be developing. It is a falling state where the prisons are overcrowded. Illthy and underfunded.69 In spite o f the enforcement clauses/provisions in the Act and CFRN 1999 (as amended). corruption in N igeria has rendered what would liave beeil gains and benefits o f the laws illusory. The enforcement o f provisions o f African Charter on Human and Peoples’ Rights provides as follows: 07 Olaniyan. K. (2014) Corruption and Human Rights Law in Africa, Oxford. Hart Publishing, P. 8 68 Section 34(1) CFRN 1999 (as amended) provided for the right to dignity of human person. Article 5 of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) provides int er alia that "every individual shall liave the right to the respect of the dignity inherent in a human being... all forms of... cruel, inhuman or degrading punishment and treatment shall be prohibited.” "" Prison congestion: Acting on Buhari’s alarm. Retrieved June 30. 2019 from https//punchng.com>prison-congestion 179 IBADAN UNIVERSITY LIBRARY Corruption as an Anathema to Human Rights Laws and Practice in Nigeria As from the com m encem ent o f this Act. the provisions o f the African Charter on Human and Peoples' Rights which are set out in the schedule to this Act shall. subject as thereunder provides. have force o f law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria. Conclusion It is therefore a holistic approach to fight against corruption. if the offence could be viewed as infringement on the rights o f persons. While the aforesaid may be considered as a step tovvards eradicating corruption in Nigeria, the issue o f enforcement should be clearly thought and spelt-out. It is suggested that the procedure for enforcement o f fundamental rights may serve as template for treatment o f corruption as a breach or infraction o f person’s rights. It will however be necessary to develop a legal framework that will harmonise the two concepts. namely: corruption and human right, with a view to establish a connection between them. This. it is believed will have far-reaching positive effects on efforts to eradicate corruption in Nigeria. For instance. the difficulties heilig faced by private persons who seek to seek redress for public sector corruption will be removed. without necessary recourse to the freedom o f Information Act 2011 which is not applicable yet in many States o f the federation. 180 IBADAN UNIVERSITY LIBRARY