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4
ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015: AN ADDED VALUE TO THE
TORT OF PUBLIC NUISANCE IN NIGERIA

BY
OGWEZZY MICHAEL C*
Abstract
The Administration of Criminal Justice Act (ACJA) 2015 is a legislation enacted by the
Nigerian government and signed into law by former President, Goodluck Ebele Jonathan on
15th May, 2015. This is the first time that Nigerian Parliament deliberately enacted a law with
a component dealing with Public Nuisance unlike the Criminal Code Act which dealt with it
as a “common nuisance” under some relevant provisions. The Criminal Code Act is no doubt
one of the anachronistic laws whose provisions are begging for serious amendments. The
Administration of Criminal Justice Act made provisions for ceasing and abetting of Public
Nuisance by individuals and corporate bodies and where such act persist after an order to
remove has been issued by the court, specific punishment to be meted out to such persons and
who has the right to bring an action before the Court. This paper therefore intends to examine
the contribution of the Act to the development of the Civil Law of Tort in Nigeria by
criminalizing Public Nuisance as a means of protecting the society from the harmful effect of
nuisance by unscrupulous individuals and corporations.

Keywords: Nigeria, Tort, Public Nuisance, Criminal Justice Act.

Introduction
The tort of nuisance is a common law remedy set out to protect the right to use and enjoy
land, without interference from others1. The word nuisance is popularly used to mean a source
of inconvenience or annoyance to the people in a given community or neighborhood. Tort is a
legal wrong for which the remedy is a common law action for unliquidated damages and which
is not exclusively the breach of a contract, or the breach of contract, or the breach of trust or
other merely equitable obligation.2 Kodilinye noted that tort may be broadly defined as a civil
wrong involving a breach of duty fixed by the law, such duty being owed to persons generally
and its breach being redressed primarily by action for damages. The essential aim of the law of
tort is to compensate persons harmed by the wrongful conduct of others, and the substantial law
of tort consists of the rules and principles which have been developed to determine when the law
will and when it will not grant redress to damage suffered. 3 Whereas, Criminal law is the branch
of law which seeks to protect the interest of the public at large by punishing certain conducts

1*LL.B, (Ibadan) B.L, (Enugu) ML.D, (DELSU) MASIO/LL.M, (ZH/Switzerland) LL.M, Ph.D (Nigeria), Senior
Lecturer and Head of Department, Private and Property Law, Adekunle Ajasin University, Akungba- Akoko, Ondo
State. Nigeria, Email address: ogwezzym@yahoo.com . This paper was originally published in Niger Delta
University Law Journal, 1(1). (2016), 47-61.
C Elliott & F Quinn Tort Law (2005) 247.
2R F V Heuston Samond & Heuston Law of Tort (1992) 11.
3 G Kodilinye Nigerian Law of Torts (1982) 1.
5
which are believed to be harmful to the society to permit such conducts to exist or continue.
Punishment is imposed generally by means of imprisonment or fine or both. Thus, the main
object of criminal law is to punish wrong doers thereby seeking to protect the collective interests
of the citizenry against the detrimental conduct of its constituent members. The Administration
of Criminal Justice Act, 2015 was enacted to ensure that the system of administration of criminal
justice in Nigeria promotes efficient management of criminal justice institutions, speedy
dispensation of justice, protection of the society from crime and protection of the rights and
interests of the suspect, the defendant, and the victim. 4 This Act made provision for the
protection of the public from nuisance committed by individuals and corporate body under
sections 72-79. The crux of this paper is to address the various provisions that seeks to
criminalize the continued perpetuation of public nuisance after a conditional order for removal
has been made by a court.
Definition of Nuisance
The term nuisance is derived from the latin expression “nocumentum” which mean an
annoyance or a harm or interference. 5 According to the Blacks Law Dictionary, nuisance is
defined as “a condition or situation… that interferes with the use or enjoyment of property.
Liability may or may not arise from the condition or situation”. 6 Nuisance could be defined as an
act or omission that is an interference with, disturbance of, or annoyance to a person in the
exercise or enjoyment of: (a) A right belonging to him as a member of the public when it is
public nuisance, or (b) His ownership or occupation of land or of some easement, profit or other
right used or enjoyed in connection with land, when it is a private nuisance. 7 The tort of nuisance
protects the right to the use or enjoyment of land or any property, an interest in land or any part
of the environment. It involves an unreasonable and therefore, an unlawful, interference with the
right of use and enjoyment.8 What constitutes nuisance is incapable of a useful generic definition
and whether a particular conduct or act is a nuisance is a question of fact; it all depends on the
surrounding circumstances.9 Fatula puts it this way “ordinarily, the word nuisance means
anything or person that causes annoyance, irritation, trouble or inconvenience. In law, it is not
4Administration of Criminal Justice Act 2015, Section 1.
5A Omotosho The Law of Tort in Nigeria (2009) 71.
6 B A Garner, Black’s Law Dictionary (2000) 875.
7Per Eso, J.S.C. in A E. Ipadeola and Anor v. Oshowale and Anor (1987) 5 S.C. 376, at 389 and Lase Fajuke v. O.
O. Kpoluyi (2005) All FWLR (pt. 277) 833 C. A at 834.
8 A O N Ezeani & R U Ezeani Law of Tort, (2014) 13.
9 Ibid.
6
even the inconvenience, irritation or trouble that is actionable as nuisance though what is
considered as nuisance is often subjective and depends upon the facts of each case”.10
Types of Common Law Nuisance
There are basically two types of common law nuisance viz: Private Nuisance and Public
Nuisance.11 A third type of nuisance exists which is Statutory Nuisance. 12 This is because the
common law of nuisance has been supplemented and to a large extent replaced by array of
statutory powers designed to control environmental damage. These types of nuisance will be
examined in the following sub-heading and there after this article will analyse the provisions of
the Administration of Criminal Justice Act, 2015 and how it added value to the development of
the law of nuisance in Nigeria.
Private Nuisance
Private nuisance is the interference with the right of specific people. Private nuisance is one
of the oldest causes of action known to common law, with cases framed in nuisance going back
almost to the beginning of recorded case law.13 Private nuisance therefore is an unlawful
interference with a person’s use or enjoyment of land, or some right over, or in connection with
it.14 The tort of private nuisance essentially arises from unlawful interference with the use and
enjoyment of the land. It is the unlawful interference with a person’s use or enjoyment of land, or
some right over, or in connection with it. 15 In Hunter v. Canary Wharf Ltd 16, Lord Lloyd stated
that, “the tort of private nuisance takes three forms: encroachment on a neighbour’s land, direct
physical injury on the land; or interference with the enjoyment of the land. The varieties of the
third form are almost infinite but it is still a tort against the rights of property and therefore lies
only at the suit of a person with sufficient interest in the land”.
A private nuisance involves a particular injury to a specific individual landowner. In this
case, the suit against the wrongdoer may be brought by the affected individual. If he can

10 O A Fatula Fundamentals of Tort, (2009) 73.

11 A Omotosho (n 5 above) 71.
12 Statutory nuisance could be liked to Legalised nuisance which as nuisance sanctioned by legislative, executive or
other official action and therefore immune from liability such as a city park. It could be qualified nuisance as well
which is a condition that though lawful in itself, is no negligently permitted to exist that it creates an unreasonable
risk of harm and , in due course actually permits an injury to another. It involves neither an intentional act nor a
hazardous activity. See B A Garner, Black’s Law Dictionary (2000) 875.
13 O A Fatula (n 10 above) 78
14 J Cook Law of Tort (2005) 304.
15 A Omotosho (n 5 above) 508. See the dictum of Scott L. J in Read v. Lyons & Co. Ltd (1945) K.B. 216 at 236.
16 (1997) A.C 655 695
7
establish that his enjoyment of his property was significantly diminished, he may recover
monetary damages and/or injunctive relief. Private nuisances may be brought under any of the
three tort theories (strict liability, intentional tort, negligence). Most nuisance suits are based
upon a theory of intentional tort. A nuisance may begin as a negligent act; however, once a
neighboring landowner objects to the activity and the person creating the nuisance refuses to
stop, the activity becomes intentional.
Kodilinye noted that private nuisance falls into three categories: (a) Physical injury to the
plaintiffs property, e.g. where the plaintiff’s crops are destroyed by fumes from the defendant’s
factory; or where vibrations from the defendant’s building operations cause structural damage to
the plaintiff’s house. (b) Substantial interference with the Plaintiff’s use and enjoyment of his
land, e.g where the plaintiff is subjected to unreasonable noise or smells emanating from the
defendant’s neighbouring land. (c) Interference with easements and profits, for example where
the defendants wrongly obstructs the plaintiff’s right of way or right to light. 17 Essentially, the
whole of the law of private nuisance represents an attempt to preserve a balance between two
conflicting interests: that of one occupier in using his land as he thinks fit and that of his
neighbour in the quite enjoyment of his land.18 To buttress the above doctrinal discourse, the case
of Abiola v. Ijoma19 stands as a good reference point. In this case, the plaintiff and defendants
occupied adjoining premises in a residential area in Surulere. The defendant kept poultry at the
back of his house as a pastime. In 1969 the defendant purchased four hundred day old chicks
which he kept in pens erected against the boundary wall, which was about 5 feet from the
plaintiff’s house. The plaintiff claimed that the excessive noise made by the chickens in the early
hours of the morning disturbed his sleep, and that nauseating smells from the pens interfered
with his comfort. He sought damages and an injunction to restrain the alleged nuisance. In the
judgement, the plaintiff was awarded damages and an injunction restraining the further acts of
nuisance by the defendant.

Public Nuisance

17G Kodilinye (n 3 above) 93.

18O A Ayodele, Civil Liability for Oil Pollution Under Nigerian Law Nigerian Institute of Advanced Legal Studies,
Lagos, Journal of Law and Public Policy, Vol.1, (2012) 291 - 324.
19 (1970) 2 All NLR 268
8
 Public nuisance is considered to be inconvenience caused to the public at large in their
enjoyment of their common interest. It includes interference with public health, safety, public
peace, public morals and convenience. Any act which appears to interfere with these rights and
interests would be actionable under public nuisance. 20 A public or common nuisance is that type
of nuisance which materially affects the reasonable comfort and convenience of life of a class of
the public who come within the sphere or neighborhood of its operation. 21 It is a nuisance
which is so wide spread in its range or so indiscriminate in its effect that it would not be
reasonable to expect one person as distinct from the community at large to take proceedings to
put a stop to it. A public nuisance is a criminal offence but becomes actionable tort if it causes
any special or peculiar damage to an individual’s use or enjoyment of land or any part of the
environment.22 Hence, in Attorney General v. PYA Quarries Ltd, Lord Denning explained the
rational for public nuisance thus, “A nuisance which is so widespread in its range or is so
indiscrimination in its effect that it would not be reasonable to expect one person to take
proceedings on his own responsible to put a stop to it should be taken on the responsibility of the
community are large”. According to Omotosho what is discernable from the forgoing
explanation is that a public nuisance is caused by some unlawful act or omission which affects
the convenience, the decency, the health or even the safety of public generally or a segment of it.
Interestingly today, most of these issues are now the subject of extensive statutory control and
legislative regulations. For instance sections 192 and 193, of Penal Code, Section 234 of the
Criminal Code.”
The definition of public nuisance is vague and it has been rightly said that nuisance “covers
a multitude of sins, great and small”. 23 Public nuisance at common law include such diverse
activities as carrying on an offensive trade, keeping a disorderly house, selling food unfit for
human consumption, obstructing public highways, throwing fireworks about in the street and
holding an ill-organised pop-festivals24 and parties by blocking public passage ways like roads,
streets and avenues.
Who can bring an Action (Claimant) with Respect to Private and Public Nuisance?

20 B A Susu Law of Tort (2004) 66.

21 H Spencer Public Nuisance-A Critical Examination (1989) CLJ 55
22 A O N Ezeani & R U Ezeani Law of Tort, (2014)
23Southport Corp v. Esso Petroleum Co. Ltd (1954) 2 Q B 182 at 196 per Lord Denning
24Attorney General for Ontario v. Orange Productions Ltd (1971) 21 D.L.R (3rd) 257.
9
 In the case of private nuisance which offence boarders on the interference with the use of
private land, it is he who has a legitimate ownership of the land that has the right to sue for
nuisance. Kodinlinye aptly stated that “since private nuisance is essentially an interference with
the use and enjoyment of land, only a person who has an interest in the land affected is entitled to
bring an action”.25 Thus, an owner in fee simple, a leasee under a lease or a person having a
statutory right of occupancy will have sufficient interest in the land to maintain an action. A
person having no legal, equitable or statutory interest in the property, such as a guest, a lodger or
a member of the owner’s family cannot sue for private nuisance.26
Again it is argued that a person who has a reversionary interest in Land cannot sue in
private nuisance. For you to sue, you must have the right of direct possession as such where a
property is let to a tenant having exclusive possession, the landlord cannot maintain an action in
nuisance in respect of any activity of the defendant which occurs during the tenancy unless he
can show that such activity has caused or is likely to cause permanent damage to the property,
for example, damage due to vibrations set up in the defendant’s land which will injure his
reversionary interest.27 So in the case of private nuisance, “he alone has a lawful claim (for
private nuisance) who has suffered an invasion of some property or other interest in land”.28
In the case of public nuisance, whenever it is committed, any person who has suffered special
damage can sue in respect of it so along as he can show that he has suffered particular damage
over and above that suffered by members of the public. This therefore make the category of
persons who have the capacity to sue in public nuisance more than those in private nuisance
because the Plaintiff need not have an interest in land, and he can recover damages for personal
injuries.
A public nuisance is akin to statutory or common law nuisance which is usually punishable
by penalty. As a result any injury caused by public nuisance, if at all, is one to the public at
large. It is only the Attorney General that can sue, being “the Chief Law Officer and the guardian
of the rights of the public”. A failure to bring an action in the name of the Attorney General will,
thereof, render it procedurally defective and incompetent. Individual will only have right of
action if he can show that he has suffered some particular direct and substantial harm to his

25G Kodilinye (n 3 above) 103.

26Ibid, See Malone v Laskey (1907) 2 K.B 141.
27 Ibid.
28 Read v. Lyons & Co. Ltd (1947) A.C 156 at 183.
10
person or property over and above that sustained by the community at large he has a right of
action in tort for the nuisance.29 In Jimoh Lawani and Ors (for themselves and on behalf of other
inhabitants and farmers of Ewekoro, Ibagun, Egbado alaguntan and Otun Villages near Itori via
Abeokuta) v. The West African Portland Cement Company Limited, 30 where a class action was
taken by the inhabitants of five villages who live within the neighbourhood of the operations of
the defendant company for nuisance committed by their operation in the neighbourhood. In this
case, the defendants argued that the acts complained of amounted to public nuisance and as such
only the Attorney General could sue; and that the plaintiffs had no right to bring the action. The
court held that the nuisance upon which this action was founded was a public nuisance, and
therefore the plaintiffs had no right to bring it; and that the only way it could be brought was by
an action ex-relation by the Attorney General.31
However, in the case of Interland Transport Limited v. J. A. Adediran and Anor (as
representatives and on behalf of all members of Ire-Akari Housing Estate Association,
Isolo),32 the court emphasized the great constitutional significance of section 6(6) (b) of the 1979
Constitution,33 and held that there was no more need to sue in public nuisance through the
Attorney-General.34
Who can be sued (Defendant) with Respect to Private and Public Nuisance
Whether it is private and public nuisance, a claimant affected by nuisance could bring an
action against the owner of the land where the nuisance originated, the present occupier of that
land, the person who created the nuisance.

(a). The Creator of the Nuisance

29 O A Ayodele, (n 18 above) 301-302.

30 (1973) 3 U.I.L.R (Part iv) 459; see other cases: Chief A. S. Amos and Ors (for themselves as individual and on
behalf of Ogbia Community Brass Division) v. Shell-BP Petroleum Development Company of Nigeria Limited and
Anor. (1977) 6 SC 109 affirming (1974) L.R.S.C. 21.
31 Ibid.
32 (1986) 2 NWLR (Part 20 78, (1986) 2 C. A. (Part 1) 18.
33 Section 6(6) (b) of the 1979 Constitution is in tandem or in pari-materia with section 6(6) (b) of the 1999
Constitution of Federal Republic of Nigeria, which provides as follows: “The judicial powers vested in accordance
with the foregoing provisions of this section - shall extend, to all matters between persons, or between government
or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination
of any question as to the civil rights and obligations of that person.”
34See O A Ayodele, (n 18 above)
11
 In law of nuisance, the creator of a nuisance is responsible for the damages resulting there
from. The creator of a nuisance may always be sued even though they are no longer in
occupation of the land from which the nuisance originates. This rule must be read in the light of
the House of Lords decision in Cambridge Water Co. v. Eastern Counties Leader Plc,35 as
follows, “it is the believe that the defendant should have been able to foresee damages of the
relevant type when the act alleged to be a nuisance occurred. The defendant will not be liable for
continuing damage when they are unable to rectify the situation”. Anybody who creates a
nuisance by either a deliberate act or omission or otherwise can be sued for nuisance, regardless
of whether the person owns or occupied the land from which the nuisance originates.36
(b). The Occupier of Land
In nuisance, most times the occupier of the land is the defendant in a case because it is
occupier’s land where the nuisance originates from into the public environment. In this
circumstance, an occupier need not be the owner of the land- where land is rented, the tenant will
usually be considered the occupier, and can be sued for creating nuisance. An occupier of land
can also be held liable for nuisance caused on that land by third parties, such as trespasser or
previous occupiers if the occupier is or ought to be aware of the potential for nuisance to be
caused and fails to take steps to prevent it.37 In Sedleigh-Denfield v. O’Callaghan, the
defendants, an order of monks, occupied some land where there was a ditch. The local authority
had built a pipe which took water away from the ditch, this was done without the defendants’
knowledge and in legal terms, the workers who built it where considered trespassers. The pipe
had a grate to keep out leaves, but it was wrongly placed, and eventually, some three years after
the pipe had been laid, it became completely blocked with leaves. As a result, neighbouring land
owner by the claimant became flooded. By this time the defendants knew that the pipe existed,
because it drained their own land, and the House of Lords held that an occupier who know of a
danger and allows it to continue is liable, even though they have not created the danger in the
first place. In thesame manner, an occupier can also be liable for nuisance caused by naturally
occurring hazards on their land this is because under the law of tort an occupier means a person
having control of premises, whether personally or through his servants or agents. In most cases
the occupier will be the creator of the nuisance (e.g where he causes unreasonable noise or

35 (1994) 1 All ER 53.

36C Elliott & F Quinn, Tort Law (2005) 255.
37 Ibid, See Sedleigh-Denfield v. O’Callaghan (1940).
12
noxious fumes to be emitted from his factory; or where he builds a wall on his land which
collapses and damages the plaintiff adjourning property) but that will not necessarily be so.38
(c). The Landlord or Owners
It is the understanding that where a land is occupied by someone other than the owner, it is
generally the occupier rather than the owner that is responsible for nuisance caused by the
occupier. Though, there are three circumstances where the landlord or owner may be held liable,
viz: (i) the landlord will be liable where a nuisance already existed when the land was let, and
they knew or ought to have known about it. (ii) Land owners will be liable where the land is let
out, but the lease provides that the landlord has an obligation to repair the premises, or the right
to enter and do repairs but failed, neglected or refused to carry out that obligation. (iii) The
landlord can also be liable for nuisance caused by the occupier where the landlord is said to have
authorised the cause of the nuisance. For example where the purpose for which the tenancy or
lease is created is certain to create a nuisance.39
It is important to state that often times; it is the occupiers of the land from which the
nuisance originates that is sued whether the nuisance is created by them or by their servants.
They are however not liable for those created by their independent contractors unless the
occupier is under a non-delegable duty or the contractor is working on the highway and creates a
danger to high way users.
Public Nuisance under the Administration of Criminal Justice Act, 2015
One of the greatest innovations of Nigerian Criminal Law and by extension the Law of Tort
is the enactment of the Administration of Criminal Justice, Act (ACJA) of 15 May, 2015 40 which

38 Ibid
39 C Elliott & F Quinn, (n 36 above) 256.

40 Criminal procedure in Nigeria is governed by two principal legislations which were handed down to us by the
British Colonial Administration, namely: the Criminal Procedure Act (CPA)1 and the Criminal Procedure Code
(CPC) 2. Each state in Nigeria has either adopted the CPA or the CPC. These laws have been applied for many
decades without significant improvement. As a result, the criminal justice system has lost its capacity to respond
quickly to the needs of the society to check the rising waves of crime, speedily bring criminals to book and protect
the victims of crime. The Administration of Criminal Justice Act (ACJA) 2015 responds to Nigeria’s dire need of a
new legislation that will transform the criminal justice system to reflect the true intents of the Constitution and the
demands of a democratic society, eliminate unacceptable delays in disposing of criminal cases and improve the
efficiency of criminal justice administration in the country. See Akinseye-George, Innovative provisions of
Administration of Criminal Justice Act 2015, The Nation, 02 June, 2015 available on
http://thenationonlineng.net/innovative-provisions-of-administration-of-criminal-justice-act-2015/ accessed on 28
November, 2015. The ACJA, 2015 has been described as one revolutionary legislation in the advancement of
criminal procedure in Nigeria. It is indeed revolutionary in the sense of repealing the erstwhile Criminal Procedure
Act which applied in the South and the Criminal Procedure Code which applied in the North. With the ACJA,
13
expressly provides for the offence of Public Nuisance under Part 6. This part contains eight
distinct sections (72 to 79) which deals with conditional order for removal, service of order,
suspect to whom order is addressed to obey or appear before court, consequences of failure to
obey order or to appear, procedure where suspects appear, consequences of disobedience to order
made absolute, order pending inquiry and prohibition of repetition or continuance of nuisance.
Public nuisance is a common law offence involving environmental danger or loss of amenity or
offensive public behaviour. It covers a wide range of minor crimes that threaten the health,
morals, safety, comfort, convenience or welfare of a community.
(a) Conditional Order for Removal of Nuisance
Section 72 of the ACJA provides conditional order for removal of nuisance and states that,
“were a court considers, on receiving a police report or other information and on taking such
evidence, if any, as it thinks fit, that an offence relating to public nuisance is being committed,
the court may make a conditional order requiring the suspect: within a time fixed in the order to
cease committing the offence and to amend or remove the cause of the nuisance in such manner
as is specified in the order; or to appear before the court at a time and place to be fixed by the
order and apply to have the order set aside or modified in manner hereinafter provided”. 41
By virtue of this provision, the court is empowered to receive information not only from the
police but from other members of the public, individuals or corporate body who feels that public
rights of enjoyment are being infringed upon by a tortfeasor or suspect. The court will give a
conditional order for the removal of the cause of nuisance or have the order set aside or modify
same for extension of time if the time given by the court is inadequate to evacuate the course of
the nuisance or where the tortfeasor feels that he is not responsible for the cause of the nuisance
or where the information is probably false or malicious. Again, where the suspect is not the only
one responsible for the cause of the nuisance, an extension of time will be necessary for the other
proper or necessary parties to be joined in the suit as such the names suspect in the information
has to appear before the court in person before the court can make any order order based on the
initial information brought before it. Though, if the suspect obeys the order by removing the
cause of the nuisance, the order issued by the court need not be modified or set aside. It becomes

Nigeria now has a unique law applicable in all federal courts and with respect to offences contained in federal
legislations.

41Administration of Criminal Justice, Act (ACJA) of 15 May, 2015, Section 72(a)(b)

14
express in law. Hence the order is conditional thereby enabling the suspect to either amend or
remove the nuisance or appear in person before the court and apply for the order to be set aside
or amended. The order will only be only set aside where the suspect can prove that he is not
responsible or liable for the cause of the nuisance.
(b) Service of order upon a conditional order made under section 72 of the Act
Section 73 stipulates the manner in which the service of conditional order made under
section 72 of the Act shall be carried out. It is the intendment of the law makers that the service
of order under this section shall if practicable be served on the suspect against whom it is made
in manner provided for the service of a summons. The proviso thereafter, is that where an order
under section 73(1) cannot be served in the manner laid down in that subsection, it may be
served by registered letter through the post, addressed to the suspect against whom it is made at
his last known address or, where his last address is not known, then by affixing a notice in some
conspicuous place in the town or village or near which the nuisance or offence is being
committed.42 The implication of this provision is that the service of court order shall be in person
against whom it is directed in the summons but where it is practically difficult to serve the
suspect in person, probably because he is elusive to the service of court order, a substituted order
of service will be applied for and obtained from the court and served in the appropriate manner
by the official process server (bailiff). In effecting such substituted order, a conspicuous place
means a place that could be easily noticed by every member of the public, and this is done by
affixing the court orders in such place as market buildings, village square, and town hall or near
the source of the nuisance. The substituted service also involves officially posting the court order
through a registered letter to the last known residential addressed to the suspect. This is to
prevent unnecessary delay complying with the conditional order to amend or remove the cause of
the nuisance or any other form of excuse on the part of the suspect to appear before the court or
continue in the act of nuisance to the public.

(c) Suspect to whom order is addressed to obey or appear before court modified
Under section 74 of the ACJA, a suspect against whom an order under section 72 of the
Act is made shall perform, within the time and in the manner specified in the order, the act
directed by the order; or appears in accordance with the order and applies to have the order set

42Ibid Section 73(1)(2).

15
aside or modified.43 While section 72 provides for what the court will do in circumstances when
a report or information is brought before it, section 74 provides for the duty imposed on the
suspect by the aforesaid section. Under this section, the Act gives the suspect the opportunity to
cease the nuisance in accordance with the order given under section 72 but where an amendment
was allowed under the initial order to modify the terms, for example where the time provided
allowed for the evacuation of the nuisance is limited; the court could extend the time to give the
suspect the opportunity to abet the nuisance within his ability. Again if he thinks that the manner
specified for the removal of the source of the nuisance is not practicable as provided for by the
court order, an amendment could be sought for a more convenient means to be adopted in the
removal of the nuisance. Under section 74, the suspect is expected to appear in court to modify
the order if necessary or carry out the conditions therein. If he carries out the order, then he
extinguishes the cause of action and therefore sections 75 to 79 of the act will become
inapplicable or not enforceable.
(d) Consequences of failure to obey order or to appear
The ACJA provided punishment for disobedience of court order and it states that “where a
suspect against whom an order under section 72 is made, does not perform the act specified in
the order or appear and apply to have the order set aside or modified, he is liable, where the act:
offends public safety, to a fine of one hundred thousand naira for individual and one million
naira in case of a corporate body or imprisonment for a term of six months; or threatens human
life, to a fine of two hundred thousand naira for individual and two million naira in case of a
corporate body or imprisonment for a term of twelve months”. 44 Here, acts which offends public
safety means nuisance that could threaten human welfare, human health, human movement,
public discomfort, the display or exhibition of obscene materials, unwholesome noise from
welding and fabrication sites, smell from poultry farms, obstructing a public passage way like
roads or canals, heavy vibrations from seismic companies but could not lead to loss of human
life. On the other hand, where the act of nuisance complained of will threaten human life, such
acts will include: gas flaring into the surrounding atmosphere, release of chemical substances
into water, sporadic gun shots into the air etc. The difference in fine and imprisonment between
individuals and corporate bodies under section 75 no doubt is informed by the fact that the scale
of nuisance committed by individuals will be of a less magnitude and less harmful than that
43Ibid Section 74(a)(b).
44 Ibid Section 75(a)(b).
16
committed by a corporate body. However the court has the discretion determine the level of harm
and to choose either fine of imprisonment where appropriate for an offender under the act. The
beauty of this section is that it placed a distinction on life threatening sources of nuisance in
particular than public nuisance in general. Though where a nuisance qualifies as both an offence
against public safety and a threat to human life, it is suffice to say that the victim can seek
remedy under section 75(a) and (b).
(e) Procedure where suspect appears
Where a suspect against whom an order under section 72 of the Act is made to appear and
applies to have the order set aside or modified, the court shall take evidence in the matter in the
same manner as in a summary trial. Where the court is satisfied that the order, with or without
modification, is reasonable and proper, the court shall make it absolute with such modification, if
any, as the court thinks fit; and not satisfied it shall cancel the order. 45 Under section 76,
admission of evidence in a case of nuisance is to be taken as it is the practice in summary trials
and this arises where the suspect chooses to make an order for modification or setting aside an
order made by the court under section 72 of the Act. The summary trial will involve the formal
judicial examination of evidence and determination of legal claims in adversary proceedings. On
the other hand, where the court feels that the order made under section 72 is reasonable, it will
strike out or cancel any application for setting aside or an amendment of the initial order, and
make the initial order under section 72 absolute.
(f) Consequences of disobedience to order made absolute
Where the acts directed by an order under section 72 of the Act which is made absolute
under sections 75 or 76 (2)(a) of the Act is not performed within the time fixed and in the
manner specified in the order, the court may cause it to be performed and may recover the cost of
performing it either by: the sale of any building, goods or other property removed by its order; or
seizure and sale of any other movable property of the person against whom the order under
section 72 was made in manner prescribed for the recovery of a fine. 46 The import of section 77
is premised on the fact that public nuisance could be harmful to the entire society and there is
need to take immediate action wherever they occur. Where the suspect refuses to carry out the
initial court order made in accordance with section 72 which was subsequently made absolute
under section 76, section 77 empowers the court to take it upon itself to abet the nuisance and
45 Ibid Section 76(1) (2)(a)(b).
46 Ibid Section 77(a)(b).
17
recover the cost by attaching and sale of the property of the suspect to offset the cost of
evacuation of the nuisance. It is worthy of note that where an individual refuses to obey a
conditional order as provided under section 72, the consequence of such disobedience as
provided in section 75 does not preclude the further consequence under section 77. This implies
that, an order is made absolute at the instance of disobedience by the suspect under section 74
vis-avis section 75.
(g) Order pending inquiry
Where the court making an order under section 72 of the ACJA considers that immediate
measures should be taken to prevent imminent danger or injury of a serious kind to the public, it
may issue such further order to the suspect against whom the order was made as is required to
obviate or prevent the danger or injury pending the determination of the matter. 47 In default of
the suspect, immediately disobeying the further order referred to in that subsection or if notice of
the order cannot, by the exercise of due diligence, be served on him immediately, the court may
use or cause to be used such means as it thinks fit to obviate the danger or to prevent the injury.48
The bureaucracy in the administration of criminal justice will lead to more harm than good
if court’s judgment is to be delivered before public nuisance is to be abetted. Hence it is the
requirement of section 78 that where the suspect disobey the order under section 72 a further
order has to be made for the suspect to abet the sources of the nuisance in other to prevent the
danger or injury associate with the continuance of the nuisance. Where this becomes difficult to
actualise, the court may take it upon itself and use any available means possible to prevent the
danger and injury that will result for the continued occurrence of the nuisance.
(h) Prohibition of repetition or continuance of nuisance
The prohibition of repetition or continuance of nuisance is usually by the common law
remedy of nuisance, hence section 79 of the ACJA 2015 provides that a court may, in any
proceedings or under in any criminal proceedings in respect of a public nuisance, order any
suspect not to repeat or continue the public nuisance. This section provides for equitable remedy
of injunction which is an order or decree by which a party to an action is required to do or refrain
from doing a particular thing. Injunction is the main remedy for nuisance, and it aims to make
the defendant stop the activity which is causing the nuisance. An injunction is a discretionary
order of the court compelling a person to do or stop doing a particular act. As long as the plaintiff
47Ibid Section 78(1)
48 Ibid Section 78 (2)
18
has evidence that they will suffer harm from the defendant’s actions, a court can order an
injunction even if the plaintiff has not yet suffered any harm. To obtain an injunction, a claimant
has to show that there is no plain, adequate and complete remedy at law and that an irreparable
injury will result unless the relief is granted. An injunction can be awarded by the court at the
conclusion of the case (a “final injunction”) if damages will not adequately compensate the
plaintiff for the injury suffered. In addition, plaintiffs often request that the court issue an
injunction to stop any damage being done to them while the court case is being heard (an
“interlocutory injunction”). An injunction may be perpetual, which orders the activity to stop
completely, or it may be partial, and for example, simply limit the times at which the activity can
be performed. Since it is a discretionary remedy, an injunction may be refused even though
nuisance is proved.49

Conclusion
It is the view in this paper that Nigerian law or tort has developed with the enactment of the
Administration of Criminal Justice Act, 2015. The law has made it practicable for the police and
private individuals to bring an action against a suspected tortfeasor. The law also obviates the
technical difficulties required in getting the Attorney General to sue on behalf of members of the
public who are affected by an act of public nuisance. The law also made individuals and
corporate bodies liable for public nuisance under the criminal law of Nigeria and provided an
interface between criminal law and law of tort. Though the common law50 principles of nuisance
still exist but now side by side with statutory enactments which are actionable in courts. The
ACJA by its wordings have shown the commitment of the Nigerian government to punish acts of
public nuisance by the nature fine and terms imprisonment provided for anyone or corporate
organisations found guilty under the act. The act have also provided for a speedy manner of
prosecuting acts of public nuisance which involves summary trial in order to do away with delay
49C Elliott & F Quinn, (n 36 above) 263-264. Other remedies which exist for a claimant under the tort of nuisance
are damages and abatement. Damages for personal injuries can be recovered for injuries suffered to the claimants
land, or the enjoyment of it, and also for injury to the claimants which is associated with the loss of enjoyment, such
as loss of sleep, or discomfort caused by noise or smells. The remedy of abatement involves self help, and allows the
claimant to take steps to end the nuisance. This may be most applicable in the case of private nuisance and where the
claimant needs to enter the defendant’s land for this purpose, notice must be given; if it is not, the abator will
become the trespasser.
50Common law is law that exists independently of any legislation. It is a set of laws and principles that has been
continually developed by courts over hundreds of years.
19
associated with criminal trials in Nigeria. The Act took into cognizance the necessity of ensuring
public welfare, public health and safety in the administration of criminal justice in Nigeria in
addition to the provisions made under the Constitution of the Federal Republic of Nigeria 1999 51
and other extant laws.

BOKO HARAM INSURGENCY AND ITS IMPLICATIONS ON THE RIGHTS OF THE

FEMALE GENDER IN NIGERIA

S. AYOOLUWA ST. EMMANUEL

LL.B (Akungba-Akoko, Nigeria) LL.M (Ibadan, Nigeria) B.L (Kano, Nigeria),
Lecturer and Doctoral Candidate, Faculty of Law,
Adekunle Ajasin University, Akungba-Akoko, Nigeria.
Email: kristalplus@yahoo.com OR simon.stemmanuel@aaua.edu.ng.
Telephone: +2347030166377, +2348186530667

51 Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 17(3)(c) and 20.
20
Abstract

The Boko Haram insurgency in Northern Nigeria and counter-insurgency measures adopted by
the Nigerian Government has caused humanitarian crises and wanton destruction, thereby
having adverse impact on the Nigerian nation and its citizenry especially the female gender. The
situation has aggravated and degenerated into internal displacement, loss of livelihood and
criminal acts such as abduction, murder and rape. This paper examines the various human
rights violations perpetrated on the female gender as a result of the insurgency and counter-
insurgency operations, it highlights the various women and girls’ rights instruments and in
conclusion, posits that gender equality, economic empowerment for female folks, partnership
with foreign superpowers and adopting an effective intelligence network are possible means of
putting a stop to the insurgency and reducing its effect on the female gender in the Country.

KEYWORDS: Boko Haram, Insurgency, Counter-Insurgency, Nigeria, Female Gender, Rights

1. Introduction
Terrorism can be said to be the antithesis of human rights and the greatest threat to universal
peace and stability in contemporary times. The international community’s response to terrorism
has been the gradual development, since 1963, of a legal infrastructure of 16 terrorism-related
conventions and protocols, multilateral treaties, supplemental agreements and series of Security
Council resolutions relating to terrorism, many of them adopted under the authority of chapter
VII of the United Nations Charter, which empowers the Security Council to adopt resolutions
legally binding on all Member States of the United Nations.52
Nigeria, the most populous country in Sub-Saharan Africa, with an estimated population of
182,425,202, out of which 90,049,168 are females (49.4 percent of the total population), 53 is
presently facing terrorism as a result of an ongoing sectarian insurgency, which is spear headed
by the Jama’atu Ahlis Sunna Lidda’awati Wal-Jihadl sect also known as Boko Haram, whose
intention is to create an Islamic state in Northern Nigeria, that will address the ills of the society
and whose nucleus belief are the strict adherence to the Holy Quran and Hadith and their
interpretation by Ahmad ibn Taymiyyah (1268-1328 CE).54 The insurgency and Nigerian
52United Nations Office on Drugs and Crime (UNODC); Legislative Guide to the Universal Legal Regime against
terrorism (2008). Available at www.unodc.org/terrorism/legislative accessed on 3rd March, 2015.
53 Available at http://countrymeters.info/en/Nigeria. Accessed on 14th January, 2016.

54 Cook, D; Boko Haram: ‘A New Islamic State in Nigeria’ Available at www.bakerinstitute.org/.../BI-pub-

BokoHaram-121114.pdf accessed on 7th November, 2015. See also Africa Report N*216, Curbing Violence in
Nigeria (II): The Boko Haram Insurgency (International Crises Group, Brussels, April 2014) 7 cited in Taiwo, E. A;
“Boko Haram Terrorism and its Impact on the Right of the Girl-Child to Education in Nigeria” (2013), 2 (1),
21
Government’s response to it through the use of the military in internal security operations due to
the ineffectiveness of the Nigerian police has, left hundreds dead, destroyed human habitations
and means of livelihood. It has also caused internal displacement, abduction, rape, physical
abuse, human trafficking and forced marriages on the female gender. The insurgency and
counter-insurgency operations pose major challenges to the protection of the rights of the female
gender in the North-Eastern part of Nigeria as a result of the collapse of social and moral order.
These challenges affect the substance of human rights norm and their scope of application. This
work in the subsequent sections, will examine the rights of the female gender violated by
insurgency and counter-insurgency operations. It also highlights the legal framework for the
protection of the female gender and concludes with necessary recommendations.

2. Definition of Key Terms

Gender: is a social construct which is not necessarily synonymous with women but for the
purpose of this paper, gender connotes the female gender and it will be used interchangeably
with the word “women”.

Gender based violence: “is violence directed against women based on their subordinate status
in society. It includes any act by males or male-dominated social institutions that inflict physical
or psychological harm on women or girls because of their gender. It is violence intended to
establish or reinforce gender hierarchies and perpetuate gender inequalities including harmful
traditional practices targeting women such as honour killings, acid throwing, female genital
mutilation (FGM) and forced marriage”55

Insurgency: is “an attempt to take control of a country by force.”56

Akungba Law Journal, 16 – 47 at 24. See further Mohammed, K, ‘The Message and Methods of Boko Haram’ in
Perouse de Montclos, M. (ed), Boko Haram: Islamism, Politics, Security and the State in Nigeria, West African
Politics and Society Series Vol. 2 (African Studies Centre, Leiden and French Institute for Research in Africa,
University of Ibadan, Ibadan & Ahmadu Bello University, Zaria, 2014) at 14. Available at
https://openaccess.leidenuniv.nl/.../ASC-075287668-3441-01.pdf accessed on 8th September, 2015.

55 Barkindo, A; Gudaku, B. T & Wesley, C. K; “Our Bodies, Their Battleground; Boko Haram and Gender-Based
Violence against Christian Women and Children in North-Eastern Nigeria since 1999” Available at
https://www.worldwidewatchmonitor.org/.../…3117403.pdf accessed on 7th November, 2015

56Honby, A. S; “Oxford Advanced Learner’s Dictionary of Current English” Oxford University Press, Oxford, 7 th
Edn.
22
Reproductive Rights: ‘Reproductive Rights rest on the recognition of the basic right of all
couples and individuals to decide freely and responsibly the number, spacing and timing of their
children and to have the information and means to do so, and the right to attain the highest
standard of sexual and reproductive health. They also include the right of all to make decisions
concerning reproduction free of discrimination, coercion and violence’57

Rights: can be defined as “a power, privilege or immunity guaranteed under a constitution,

statutes or decisional laws or claimed as a respect of long usage.”58

Terrorism: there is no universally accepted definition of terrorism. However, for the purpose of
this paper, terrorism is the ‘use of violent action in order to achieve political aims or to force a
government to act’59

3. The emergence and evolution of Boko Haram

The terrorists’ attacks of 11th September, 200160 have led to the worst backlash in the
international protection of human rights since the concept was introduced in the UN charter after
the Second World War. In contemporary times, terrorist groups have developed from
dependence on State sponsorship. Many of them now operate as non-state actors. These non-
state actors make use of porous borders, interconnected international systems on finance,
communications and transit, thereby reaching every corner of the globe. Some of these groups
remain focused on local or national political dynamics, while, others seek to affect global
change.61

57 UN Programme of Action adopted at the International Conference on Population and Development (ICPD),
Cairo, 5 – 13 September 1994, UN Doc. A/CONF.171/13 1994, Para 7.3. Available at
http://www.choiceforyouth.org/information/sexual-and-reproductive-health-and-rights/official-definitions-of-sexual-
and-reproductiv. accessed on 7th April, 2016

58 Isiramen, C. O; “Humanism and Women’s Rights in Nigeria” cited in Dada, F. O; “The Justiciability and
Enforceability of Women’s Rights in Nigeria” (2013), 2 (1), Akungba Law Journal, 216 – 232 at 216

59 Hornby op cit

60 The attacks are also referred to as the 9/11 attacks wherein the twin World Trade Centre in New York and the
Pentagon in Philadelphia, both in the United States were bombed by Islamic extremists affiliated with the terrorist
group, Al Qaeda.

61 Council on Foreign Relations. Available at http://www.cfr.org/terrorism/global-regime-terrorism/p25729.

accessed on 19th February, 2015
23
One of these groups is a salafi-jihadi sect by the name, Jama’atu Ahlis Sunna Lidda’awati Wal-
Jihadl62 but popularly known as Boko Haram.63 This deadly sect has been waging a sectarian
insurgency against the Nigerian State since 2009 though it materialized in 2002. The group
started as an Islamic movement under Mohammed Yusuf. It was exemplified by intense speeches
of its leader which included verbal attacks on secular authorities.64
Vicious altercations between the sect and security forces started in June, 2009, when an
encounter between members of the sect and a joint police and military unit known as ‘Operation
Flush’ over the enforcement of a government law that made compulsory, the use of helmets by
all motorcyclists, turned violent.65 As a result, about 17 members of sect were shot and injured by
security operatives during the fracas.66
Consequently and due to infuriation, the sect resorted to sporadic violent attacks against the
police and other Government institutions across the north-eastern states of Nigeria to avenge
what they considered as police brutality against its members.67 Successive conflicts between
members of the sect and security forces left more than 800 people dead, including the extra-
judicial killing of the leader of the sect, Mohammed Yusuf in July 2009.68
The extra-judicial execution of its leader marked a turning point in the radicalization of the
leadership, hierarchy and modus operandi of the sect; a more dire and drastic leader in the person
of Abubakar Shekau, who was previously Mohammed Yusuf’s deputy emerged.
Since then, the sect has changed its modus operandi from using low level guerilla tactics to
outright warfare by carrying out insurmountable violent and brutal attacks such as bombing of
places of worship, suicide bombings, kidnapping, assassinations of individuals and groups
especially Christian minorities, prominent politicians and clerics who opposed it, across

62 Which means “People Committed to the Propagation of the Prophet’s Teachings and Jihad”
63 Which means western education is forbidden. It is believed that the group took its name or was accorded its name
as result of strong opposition to western education and initial withdrawal from the society. See Cook op cit at 4.

64 Mohammed, op cit at 9 - 10

65 Odomovo, A. S; “Insurgency, Counter-insurgency and Human Rights Violations in Nigeria”, the Age of Human
Rights Journal, 2014, pp 46 -62 at 48

66 Forest, J., Confronting the Terrorism of Boko Haram in Nigeria, JSOU Press, Florida, 2012, 63

67 Odomovo, op cit at 48

68 Forest, op cit at 64
24
Northern Nigeria and the Federal Capital Territory of Abuja, 69 which the Nigerian Police could
not curtail. This necessitated the deployment of the armed forces and paramilitary security outfits
to the affected areas especially in North-East Nigeria.
In addition, the fruition of Boko Haram can be said to have some political undertones. Yusuf was
always political and wanted an Islamic government but not in a violent way. 70 According to
Taiwo, the swift growth of the sect is associated with political influence and power struggle in
the region.71 Yusuf formed an alliance with Ali Modu Sheriff, a one-time All Nigeria Peoples’
Party (ANPP) Governor of Bornu State between 2003 - 2011, who at that time was a serving
Senator of the Federal Republic of Nigeria. 72 The aim of the said alliance was to use the large
youth followers of Yusuf, who constitute a significant electoral bloc to vote out Mala Kachalla,
who with help of Sheriff, became the Governor of Bornu State upon return to civil rule in 1999.73
However, the alliance did not come free of charge. Sheriff promised to implement strict Shariah
such as criminal punishments; flogging for theft and fornication, amputation and stoning to death
for adultery but reneged on this promise upon election into office. 74 Although, Sheriff created a
ministry of religious affairs and put a close confidante of Yusuf, in person of Buji Foi in charge
of it (in return for the support rendered by Boko Haram to him during the election campaign). 75
This led to a fissure in the above mentioned alliance and Yusuf began to address his sermons at
Sheriff, branding him as an apostate and a turncoat.76
According to Harnischfeger, Yusuf returned from his self-imposed exile in Saudi Arabia after a
rapprochement with the state, negotiated by the then Borno State deputy governor, Adamu

69 Notable examples are the bombing of the Police Headquarters and United Nations (UN) offices in June and
August, 2011 respectively
70 Africa Report, op cit at 9

71 Taiwo op cit at 24

72 Africa Report op cit at 11. See also Taiwo op cit at 24 - 25

73 Ibid

74 Taiwo op cit at 25

75 Harnischfeger, J, ‘Boko Haram and its Muslim critics: Observations from Yobe State’ in Perouse de Montclos,
M. (ed) op cit, 33 – 62 at 40. It should be noted that Foi later resigned as Commissioner for Religious Affairs in
2007 due to protest. See Africa Report op cit at 12
76Taiwo op cit at 25
25
Shettima Dibal and Sheikh Ja’afar Mahmud Adam, during the 2005 pilgrimage in Mecca, Saudi
Arabia.
According to Mohammed,77 three different but relating stages can be discerned in the evolution
of Boko Haram. The first stage is what can be termed as the Kanama phase (2003-05), when a
militant jihadist group led by Muhammad Ali, a Nigerian radicalised by jihadi literature in Saudi
Arabia and believed to have fought alongside the mujahideen in Afghanistan, waged war on the
Nigerian state but was repelled with casualties on both sides.78
The second stage commenced with the collapse of the Kanama uprising and ended with the
suppression of Boko Haram proper in July 2009.79 This period, which can be dubbed the dawah
phase, was dedicated to intensive proselytisation, recruitment, indoctrination, and radicalization
of its members.80 This stage involved extensive criticism of the extant secular system; debates
with opposing ulama (clerics) on the propriety or otherwise of Western education,
Westernization, democracy, secularism, unceasing criticism of the corruption and bad
governance under the then Governor of Bornu State, Ali Modu Sheriff (2003-2011) in addition
to the conspicuous consumption and opulence of the Western-educated elite in the midst of
poverty.81
The third phase began with the 2009 suppression of the movement and the killing of its
leadership in gory and barbaric form by Nigerian security agencies. 82 Mohammed posits further
that during this period, Boko Haram went underground, re-organised, and resurfaced in 2010
with a vengeance.83 The sect not only targeted their perceived opponents, but indiscriminately
attacked security officials, politicians associated with the ruling All Nigeria Peoples Party
(ANPP) government in Bornu State.84 As the military crackdown increased, the sect became

77 Mohammed op cit at 10

78 Ibid

79 Ibid

80 Ibid

81 Ibid

82 Ibid

83 Ibid

84 Ibid
26
desperate and more militant, thereby resorting to more desperate measures, which they had
despised in the past, such as burning of school buildings, attacking telecommunications base
stations, killing and kidnapping of foreigners, slaughtering as opposed to shooting of opponents,
and killing of health officials at routine vaccination clinics, as well as random shooting of pupils
and teachers at schools.85
The drivers of radicalization of Islamic groups include both internal and external developments 86
and the deadly sect is no exception. Although the grievances of Boko Haram are largely local, its
major influences have been foreign.87 Mohammed posits further that the basic message of radical
Islam, whether in the Middle East, North Africa, or northern Nigeria, is the same, which
primarily is that ‘it is the duty of Muslims to revolt against and change apostate rulers and
governments in order to help re-establish a proper Islamic state.’88 He concluded that the main
differences among radical groups are in the methods and not the ideals.89

4. The Legal Framework for the Protection of the Female Gender in Nigeria
Though Nigeria has acceded to and ratified various international instruments on the protection of
the female gender, it is yet to domesticate most of them. The Nigerian Constitution 90 remains the
grundnorm for the protection of the rights of the female gender in the country. Attempt will now
be made to highlight the various instruments. Various international and regional instruments that
are germane to the rights of the female gender that Nigeria has ratified include; Universal
Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights
(ICCPR), Optional Protocol to the ICCPR concerning Individual Petition, International Covenant
on Economic, Social and Cultural Rights (ICESCR), Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Elimination
of all Forms of Discrimination against Women (CEDAW), Geneva Convention relative to the

85 Ibid

86 Ibid at 21

87 Ibid

88 Ibid

89 Ibid

90 Cap C.23 Laws of the Federation of Nigeria, 2004

27
Protection of Civilian Persons in Time of War, African Charter on Human and Peoples’ Rights,
the Beijing Declaration, the Vienna Declaration and Programme of Action amongst a host of
others. These instruments oblige states to guarantee non-discrimination and equality (de jure and
de facto) on the basis of gender, sex, sexual orientation and gender identity. 91 These assurances
of non-discrimination and gender equality are essential in ensuring the realization of economic,
social and cultural rights which are often impacted by terrorism and counter-terrorism
operations.92
These instruments fall under four general categories.93 The first category consists of the
comprehensive International Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights, (ICCPR and ICESCR).94 The second category consist of comprehensive
regional conventions such as the African Charter on Human and People’s Rights, 1981. The third
category consists of conventions dealing with specific wrongs such as genocide, racial
discrimination or torture. While the fourth category deals with conventions related to the
protection of particular set of people such as women and children. The relevance of some of
these instruments will now be considered herein after -

3.3.1 The International Covenant on Civil and Political Rights (ICCPR)

91 United Nations General Assembly; “Report of the Special Rapporteur on the Promotion and Protection of Human
Rights and Fundamental Freedoms while Countering Terrorism” 8. Available at www2.ohchr.org/English/…/A-64-
211.pdf

92 Ibid at 8 - 9

93 Brownlie, I, Principles of Public International Law (6th Ed, New York: Oxford University Press, 2003) p.536

94 These covenants were unanimously accepted by the General Assembly of the UNO in 1966 but came into force
in 1976
28
This instrument governs fundamental rights such as; right to life, 95 right to dignity of human
person,96 right to liberty and security, 97 and the prohibition of propaganda of war and of
incitement to national, racial or religious hatred.98
Consequent upon the foregoing, every citizen of Nigeria, has a right to life and he or she shall
not be intentionally deprived of this inherent right unless in the execution of the sentence of a
court in respect of a criminal offence of which he or she has been found guilty. Furthermore,
every citizen is entitled to respect for the dignity of his person. Therefore, he or she cannot be
subjected to inhuman treatment. This is not the scenario in the Boko Haram insurgency. Female
victims of the various attacks launched by the deadly sect were deprived of their lives without no
just cause. It is pertinent to state that by virtue of this instrument, Nigeria is under compulsion to
ensure and protect these rights without any distinction whether as a result of race, color, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status.99

3.3.2 International Covenant on Economic, Social and Cultural Rights (ICESCR)

This covenant was promulgated in accordance with the principles proclaimed in the Charter of
the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family based on the foundation of freedom, justice and peace in the
World.100 It was also promulgated in accordance with the Universal Declaration of Human Rights
(UDHR) and in recognition of the ideals of free human beings enjoying freedom from fear and

95 Article 6 of the International Covenant on Civil and Political Rights (ICCPR) 1966 (Entry into force in 1976).
This right is also guaranteed in the constitutions of many Nations. For examples, see Constitution of the Federal
Republic of Nigeria 1999 s. 33 and Constitution of the Republic of South Africa, 1996 s. 11

96 Article 7 of the ICCPR. This right is also guaranteed in the constitutions of many Nations. For examples, see
Section 34 of the Constitution of the Federal Republic of Nigeria 1999

97 Article 9 of the ICCPR. This right is also guaranteed in the constitutions of many Nations. For examples, see
Section 35 of the Constitution of the Federal Republic of Nigeria, 1999

98 Article 20 of the ICCPR

99 Article 2 of the ICCPR

100 Preamble to the International Covenant on Economic, Social and Cultural Rights (ICESR)1966 (Entry into force
in 1976)
29
want, which can only be achieved if conditions are created whereby everyone may enjoy his
economic, social and cultural rights, as well as his civil and political rights. 101 This covenant
guarantees the right to work by all.102 Furthermore, it guarantees adequate standard of living
rights such as rights to food103, health104 and shelter.105

3.3.3 Convention on the Elimination of all Forms of Discrimination against Women

(CEDAW)
This convention was adopted in 1979 and can be said to be the principal instrument for the
protection of women at the international plane. It enjoins State parties to prohibit discrimination
against women by embodying the principle of the equality of men and women in their national
constitutions or other appropriate legislation106 and adopting appropriate legislative and other
measures prohibiting all discrimination against women, including sanctions where appropriate. 107
It charges States to establish legal protection of the rights of women on an equal basis with men
and to ensure through competent national tribunals and other public institutions the effective
protection of women against any act of discrimination 108 amongst others. This instrument
governs fundamental rights such as; right to education, 109 employment rights,110 and equal access
to healthcare.111 The convention places on States to take into account problems faced by rural

101 Preamble to the ICESR

102 Article 6 (1) to the ICESR

103 Article 11

104 Article 12

105 Article 11

106 Article 2 (a)

107 Article 2 (b)

108 Article 2 (c)

109 Article 10

110 Article 11

111 Article 12
30
women and the significant roles played by such women in the economic survival of their
families.112

3.3.4 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT)
This convention guarantees the right of both men and women not to be subjected to torture and
other cruel, inhuman or degrading treatment or punishment. Article 4 of the convention charges
State parties to criminalize torture with appropriate penalties within their respective jurisdictions.
States Parties are also enjoined to afford one another the greatest measure of assistance in
connection with criminal proceedings brought in respect of any of the offences referred to in
article 4, including the supply of all evidence that are necessary for such proceedings at their
disposal.113
The convention further mandate each state party to ensure that education and information
regarding the prohibition against torture are fully included in the training of law enforcement
personnel, civil or military, medical personnel, public officials and other persons who may be
involved in the custody, interrogation or treatment of any individual subjected to any form of
arrest, detention or imprisonment.114 The convention also obligate states to ensure that, its
competent authorities proceed to a prompt and impartial investigation, wherever there is
reasonable ground to believe that an act of torture has been committed in any territory under its
jurisdiction.115 Under the convention, any individual who alleges he or she has been subjected to
torture has the right to complain and have his or her case promptly and impartially examined by
competent authorities.116

112 Article 14

113 Article 9 (1)

114 Article 10

115 Article 12

116 Article 13
31
States must take steps to ensure that the complainant and witnesses are protected against all ill-
treatment or intimidation as a consequence of the complaint or any evidence given. 117 Each State
Party must also ensure in its legal system that the victim of an act of torture obtains redress and
has an enforceable right to fair and adequate compensation, including the means for full
rehabilitation as possible. In the event of the death of the victim as a result of an act of torture,
his dependants shall be entitled to compensation.118
Article 16 directs Each State Party to prevent in any territory under its jurisdiction other acts of
cruel, inhuman or degrading treatment or punishment which do not amount to torture, when such
acts are committed by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.119

3.3.5 Geneva Convention IV and Additional Protocols I and II Relative to the Protection of
Civilian Persons in Time of War
The Geneva Conventions which were adopted before 1949 were in respect of Combatants and
not Civilians.120 Although some provisions in respect of the protection of populations against the
consequences of war and their protection in occupied territories are contained in the Regulations
concerning the laws and customs of war on land, annexed to the Hague Convention of 1899 and
1907.121 This provision became inadequate during World Wars I and II because of the dangers
emanating from air warfare and of the problems relating to the treatment of civilians in enemy
territories and in occupied territories.122 Consequently, the Geneva Convention IV was
introduced by the International Committee of the Red Cross (ICRC) in order to improve the
situation of war victims.123

117 Ibid

118 Article 14

119 Article 16

120 International Committee of the Red Cross (ICRC), ‘Treaties, States Parties and Commentaries’; Convention
(IV) relative to the protection of Civilian Persons in Time of War, Geneva, 12 August, 1949. Available at
https://www.icrc.org/ihl/INTRO/380. Accessed on 8th April, 2016

121 Ibid

122 Ibid
32
Two Additional Protocols were adopted in 1977, to extend and strengthen the protections
provided in the Geneva Conventions.124 These treaties form part of the law of armed conflict and
contain certain provisions that apply specifically to women.125
Examples of these provisions includes but not limited to the protection of women against any
attack on their honour, in particular against rape, enforced prostitution, or any form of indecent
assault.126

3.3.6 African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights (ACHPR) also known as the Banjul Charter
is an international human rights instruments for the protection of human rights on the African
Continent.127 The oversight and interpretation of the Charter is within the purview of the African
Commission on Human and Peoples’ Rights, which was established in 1987, with headquarters
now in Banjul, The Gambia.128
Article 2 of the Charter enshrines the principle of non-discrimination on the grounds of race,
ethnic group, colour, sex, language, religion, political or any other opinion, national and social
origin, fortune, birth or other status. While Article 18 calls on all States Parties to eliminate every
discrimination against women and to ensure the protection of the rights of women as stipulated
in international declarations and conventions.129

123 Department of Economic and Social Affairs, Division for the advancement of Women, United Nations; ‘Sexual
Violence and Armed Conflict: United Nations Response’ Published to Promote the Goals of the Beijing Declaration
and the Platform of Action, April 1998. Available at www.un.org/womenwatch/daw/publication....cover.pdf.
Accessed on 7th April, 2016

124 Ibid

125 Ibid

126 Article 27 of the Geneva Convention IV, 1949. Similar provisions are contained in Articles 76 (1) and Article 4
(2) (e) of the Additional Protocols I and II of 1977 respectively.

127 African Commission on Human and Peoples’ Rights, ‘African Charter on Human and People’s Rights’
available at http://www.achpr.org/instruments/achpr/ accessed on 7th April, 2016

128 Ibid

129 Article 18 (3)

33
3.3.7 Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women in Africa
This protocol is also known as the Maputo Protocol. 130 State parties to the protocol in furtherance
to the provisions of Article 66131 of the African Charter on Human and Peoples’ Rights and in
reaffirming the principle of gender equality alongside recognizing the crucial role of women in
the preservation of African values based on the principles of equality, peace, freedom, dignity,
justice, solidarity and democracy agreed to this protocol.132
The protocol amongst other things guarantees elimination of all discrimination against
women,133elimination of harmful practices,134 and women rights such as dignity, 135 life, integrity
and security of person,136 and equality in marriage. 137 Provisions on access to justice and equal
protection before the Law,138 right to participate in the political and decision making process, 139
140
protection of women in armed conflicts, right to education and training141 and economic and
social rights142 are enshrined in the Protocol.

130 It was adopted by the African Union on 11th July, 2003 at its second summit in Maputo, Mozambique and came
into force on 25th November, 2005, after the ratification of the requisite 15 member nations of the Union.

131 This Article provides for special protocols or agreements, if necessary, to supplement the provisions of the
African Charter
132 Preamble to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in
Africa. Available at www.achpr.org/files/instruments/women....achpr_instr_proto_women_eng.pdf . accessed on
19th March, 2016

133 Article 2

134 Article 5

135 Article 3

136Article 4

137 Article 6

138 Article 8

139 Article 9

140 Article 11

141 Article 12

142 Article 13
34
3.3.8 The Beijing Declaration and Programme of Action
The Beijing Declaration and Programme of Action is the outcome of the Fourth World
Conference on Women: Action for Equality, Development and Peace organized by the United
Nations from the 4th – 5th September, 1995 in Beijing, China.
Governments are mandated to intensify efforts to ensure equal enjoyment of all human rights and
fundamental freedoms for all women and girls who face multiple barriers to their empowerment
and advancement because of such factors as their race, age, language, ethnicity, culture, religion,
or disability, or because they are indigenous people.143
Paragraph 232(a) of the Declaration obliges Governments to give priority to promoting and
protecting the full and equal enjoyment by women and men of all human rights and fundamental
freedoms without distinction of any kind as to race, colour, sex, language, religion, political or
other opinions, national or social origins, property, birth or other status.
While, Paragraph 133 of the Declaration states that ‘violation of human rights in situations of armed
conflict and military occupation are violations of the fundamental principles of international human
rights and humanitarian law as embodied in international human rights instruments in the Geneva
Conventions of 1949 and the Additional Protocols thereto’

3.3.9 The Vienna Declaration and Programme of Action

The Vienna Declaration and Programme of Action is the outcome of the 1993 UN World
Conference on Human Rights held in Vienna. Of particular significance was the recognition that
violence against women, such as domestic abuse, mutilation, burning and rape, is a human rights
issue.144 Previously, these acts had been regarded as private matters, and therefore not
appropriate for government or international action. 145 Even the Convention on the Elimination of

143 Paragraph 32 of the Beijing Declaration and the Platform for Action, Fourth World Conference on Women,
Beijing, China, September 4-15 1995, U.N. Doc. A/CONF.177/20 (1996). Available at
www.beijing20.unwomen.org/…/…/BeijingDeclarationAndPlatformForAction-en.pdf. accessed on 19 th January,
2016

144 Department of Economic and Social Affairs, Division for the advancement of Women, United Nations; ‘Sexual
Violence and Armed Conflict: United Nations Response’ Published to Promote the Goals of the Beijing Declaration
and the Platform of Action, April 1998. Available at www.un.org/womenwatch/daw/publication....cover.pdf.
Accessed on 7th April, 2016

145 Ibid
35
all Forms of Discrimination against Women (Women's Convention), adopted in 1979, has no
specific provision on violence against women.146
The declaration provides that ‘the human rights of women and of the girl-child are an
inalienable, integral and indivisible part of universal human rights and that the full and equal
participation of women in political, civil, economic, social and cultural life, at the national,
regional and international levels, and the eradication of all forms of discrimination on grounds of
sex are priority objectives of the international community.147
Article 38 of the Declaration states that "Violations of the human rights of women in situations
of armed conflict are violations of the fundamental principles of international human rights and
humanitarian law. All violations of this kind, including in particular murder, systematic rape,
sexual slavery, and forced pregnancy, require a particularly effective response."

3.3.10 Declaration on the Protection of Women and Children in Emergency and Armed
Conflict
This declaration was proclaimed by General Assembly resolution 3318 (XXIX) of 14 December
1974 upon the recommendation of the Economic and Social Council contained in its resolution
1861 (LVI) of 16 May 1974. This declaration is as a result of women and children suffering
victimization, inhuman acts and serious harm during armed conflict due to suppression,
aggression, colonialism, racism, alien domination and foreign subjugation.148
Article 1 of the declaration prohibits attacks and bombing of civilian populations, while Article 2
prohibits the use of chemical and biological weapons on civilian populations.
Under this Declaration, states are duty-bound to abide by their obligations under the Geneva
Protocol of 1925 and Convention of 1949.149 The declaration criminalizes all forms of repression
and cruel and inhuman treatment of women and children, including imprisonment, torture,

146 Ibid

147 Paragraph 18 of the Vienna Declaration and Programme of Action, World Conference on Human Rights,
Vienna, Austria, June 14-25, 1993, U.N. Doc. A/CONF.157/23 (1993). Available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx
148 Preamble to the Declaration on the Protection of Women and Children in Emergency and Armed Conflict.
Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtectionOfWomenAndChildren.aspx. accessed
on 20th March, 2016

149 Article 3
36
shooting, mass arrests, collective punishment, destruction of dwellings and forcible eviction,
committed by belligerents in the course of military operations or in occupied territories.150
States involved in armed conflicts, military operations in foreign territories or military operations
in territories still under colonial domination are mandated to make all efforts to spare women and
children from the ravages of war by ensuring that all necessary steps are taken to ensure the
prohibition of measures such as persecution, torture, punitive measures, degrading treatment and
violence, particularly against that part of the civilian population that consists of women and
children.151
In conclusion, the Declaration provides that women and children who found themselves in
emergency or conflict situations should not be deprived of their inalienable and inherent rights
such as shelter, food and medical aid, in accordance with the provisions of the Universal
Declaration of Human Rights, the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, the Declaration of the Rights of
the Child or other instruments of international law.152

5. Implications of the Insurgency and Counter-Insurgency on the Female Gender

150 Article 5

151Article 4

152 Article 6
37
Hitherto, the female gender has suffered gender discrimination and violence stemming from
political, cultural,153 social,154 economic155 and religious156 reasons in Nigeria in general and in the
insurgency-torn areas in particular, which maybe as a result of conception that the major role of a
woman is that of child-bearer, child-raiser and home-maker.157 Majority of the female gender in
Northern Nigeria are vulnerable and live in poverty.158 The insurgency has also compounded
their problems in that they suffer from ill-treatment and abuse. This section will examine the
various human rights abuses perpetrated on the female gender due to the Boko Haram
insurgency.
153 A trite example is widowhood practices especially among the Ibos of South-East Nigeria, whereby a widow
cannot inherit the personal or real estate of her husband. See the case of Nezianya v. Okagbue & Ors. (1963) 1 ALL
NLR 352. This is also applicable among the Yorubas of South-West Nigeria, especially in cases where the husband
dies intestate. See the cases of Osilaja v. Osilaja (1972) 10 SC 126. Other harmful cultural practices include the
beating of wives, which is permitted as a form of discipline. See section 55 1 (1) (d) of the Penal Code Act, (Cap
P.3), Laws of the Federation of Nigeria, 2004

154Women are not permitted to stand surety for bail. Furthermore women are denied tax relief for their dependants
unlike their male counterpart, who enjoy tax reliefs by virtue of the married man allowance. Another trite issue is
that of Citizenship. Section 26 (2) (a) of the Nigerian constitution denies a woman the right to confer citizenship
status on her foreign husband but grants such right to a foreign woman married to a Nigerian man. In addition, the
Section 353 of the Criminal Code Act (applicable to Southern Nigeria) provides for the harsher offence of felony
and punishment of three (3) years imprisonment for assault committed against a Man by a Woman. While, Section
360 of the same Code, provides for a lesser offence of misdemeanor and punishment of two (2) years for assault
committed against a Woman by a Man.

155 By virtue of sections 55 and 56 of the Labour Act (Cap L.1, Laws of the Federation of Nigeria, 2004), women
are excluded from underground work and are restricted from doing certain jobs such as night work in any
agricultural undertaking, public or private industrial undertaking or any branch thereof. In addition, Sections 121 -
126 of the Nigeria Police Regulations Act (Cap P.19, Laws of the Federation of Nigeria, 2004), regulates the affairs
of women in ways other than that of men. Under the regulations, Women Police Officers are employed for duties
that are concerned with women and children only. Married women are not allowed to enlist in the Police Force.
Furthermore, a woman in the Nigerian Police must seek the permission of the Commissioner of Police in her area of
service before she can marry upon satisfying the conditions precedent of having spent two (2) years in the police and
furnishing the police with the particulars of the fiancé, who must be investigated and cleared.

In concluding on these regulations, an unmarried pregnant police officer shall be discharged from the force, while a
married woman cannot be granted any special privileges because she is married and shall be subject to postings and
transfers as if unmarried. These provisions are discriminatory in that they show the notion that women are weaker to
men and an affront to the right of a woman to marry and raise a family as enshrined in section 37 of the Constitution
of the Federal Republic of Nigeria, 1999 (as amended).

156 For example under Islamic Law (Shariah), a woman cannot be appointed as a Judge (Kadi of the Shariah Court
of Appeal). Furthermore, in cases of adultery, a man can swear his innocence by denying having had sexual
intercourse with a woman and be discharged and acquitted because such statement on oath is deemed as sufficient
proof of innocence unless same is rebutted by four independent and trustworthy eye-witnesses. See the case of
Safiyatu Hussain Titudu v. Attorney-General of Sokoto State (2008) vol. 1 WHRC 309
38
 5.1 Killing of Members of the Female Gender
The Boko Haram insurgency and counter-insurgency is destroying the lives of females in
Nigeria. Nigerian females have been on the receiving end of the brunt of the insurgency as a
result of increasing feminisation of terror by Boko Haram in two paradoxical ways vide the use
of young girls as both the victims and vanguards of terror.159 As victims of terror, in the form of
abductees, while as vanguards of terror, females are used as bombers in carrying out suicidal
attacks.160 According to Onuoha and George, the bulk of suicide bombings have been carried out
by abducted females who hitherto were recruiters and couriers of arms, foodstuffs and money.161
This is an affront on the right to life of female folks. The right to life can be said to be the
supreme right and the foundation of all rights. This right is guaranteed under Section 33 (1) of
the constitution of the Federal Republic of Nigeria, 1999 as amended. 162 Every person whether
citizens of Nigeria or not, is entitled to this right which can only be deprived as provided for by
the constitution itself.163
The first female suicide bomb attack occurred on 8th June 2014, at the 301 Battalion barracks of
Nigerian Army in Gombe, Gombe State, which resulted in the death of the girl, who carried the

157 Akintola, S. O & Taiwo ,E. A., Nigerian Woman and Her Child: The Remaining Challenges (Demyaxs Books,
Ibadan, 2004) 3

158 Cook op cit at 5

159 Onuoha, F. C & George T. A; “Boko Haram’s Use of Female Suicide Bombing in Nigeria” (2015); Al Jazeera
Center for Studies. 2. Available at www.studies.aljazeera.net./…/…20153189319985734Boko-Harams-Female.pdf.
Accessed on 7th November 2015

160 Ibid

161 Onuoha, F. C & George T. A op cit

162 Section 33 (1) of the Constitution of the Federal Republic of Nigeria 1999 provides that “ every person has a
right to life and no one shall be deprived intentionally of his life, save in execution of a sentence of a court in
respect of a criminal offence of which he has been found guilty”

This right is also guaranteed under International instruments such as Article 6 of the International Covenant on Civil
and Political Rights (ICCPR) to which Nigeria has acceded to. In addittion, Article 4 of the African Charter provides
that “Human beings are inviolable. Every human being shall be entitled to respect for his life and integrity of his
person. No one maybe arbitrarily deprived of this right”

163 Permissible limitations on the right to life are provided for in Section 33 (2)
39
bomb in her hijab and a soldier.164 This attack was followed by the bombing of an energy depot
in Lagos by a female attacker on the 25 th of that same month.165 The nefarious sect continues to
use girls as young as eleven years of age as human bombs to wreck havocs and carry out barbaric
acts in other cities such as Kano, Yola and Maiduguri. 166 The deadly sect has extra-judicially
executed women and children especially those of the Christian faith. 167 A number of women and
girls who were forced to marry Boko Haram fighters were killed when the group was forced to
retreat by the joint forces, reportedly so that they would not remarry “infidels” or provide
information to regional forces.168 These acts are gross violations of the provisions on right to life
as guaranteed under Section 33 (1) of the Nigerian Constitution and Article 6 of the ICCPR.

5.2 Abduction, Rape, Sexual Violence, Sexual Slavery, Forced Marriages and
Breaches of the right to freedom of thought, conscience and religion
Boko Haram abducts women and girls during raids on towns and villages in North-East Nigeria
and detained them in Boko Haram’s camps and towns under their control. A trite example is the
abduction of 276 female students of Government Secondary School, Chibok, Bornu State from
their hostel on 14th April, 2014 into the Sambisa forest head-quarters of the sect. 169 It is worthy to

164 Onuoha, F. C & George T. A op cit at 4

165 Ibid

166 Boko Haram; Young Female Suicide Bombers kill 15 in Nigeria Market Attack. Available at
http;//www.theguardian.com/world/2015nov/18/young-female-suicide-bombers-kill-15-in-nigeria-market-attack.
Accessed on 19th January, 2016

167 Barkindo et al op cit at 19

168 Office of the High Commissioner on Human Rights (OCHR); Report of the United Nations High Commissioner
on Human Rights on Violations and Abuses Committed by Boko Haram and the Impact on Human Rights in the
Affected Countries. Available at www.ochr.org/.../HRC/.../A-HRC-30-67_en.doc. accessed on 7th November, 2015

169 Just as the 276 Chibok Girls were abducted by the Boko Haram Sect, hundreds of yazidi girls were abducted by
the deadly terrorist group, Islamic State in Iraq and Syria (ISIS) under similar circumstances. Some of the Yazidi
girls have been rescued with the help of western superpowers backed International coalition forces, form the Sinjar
Mountains, where some of them fled when ISIS invaded their homes. The Iraqi episode can be said to have ended
well as some of the yazidi girls are being rescued and rehabilitated vide training in photo journalism. See further
Onyibe, M, ‘Terrorism: Comparing Chibok and Yazidi Girls (1)’ The Punch Newspaper, Monady, November 2,
2015, 24.
40
note that the Nigerian government successful negotiated the release of 103 of the abducted
Chibok school girls in exchange for the release of some top Boko Haram commanders.170
According to Amnesty International, Boko Haram routinely rounds up women and girls and
detain them in large houses under armed guard.171 Women and girls that have escaped from Boko
Haram reported to Amnesty International that, many were forced to marry Boko Haram
members.172 In a video released on 13 May 2013, the Boko Haram leader, Abubakar Shekau
announced that Boko Haram had abducted women and children in response to the arrest of the
wives and children of its members. The sect has singled out unmarried women for abduction,
forcing them into marriage with its members, claiming that they are religiously obliged to be
married.173 In camps and territories controlled by Boko Haram, women were raped by their new
husbands or secretly in the bush by members of the sect.174
Women previously detained in Boko Haram camps also informed Amnesty International that
Boko Haram had given them religious education classes on Islamic prayers and practices,
ordered Christian girls to convert to Islam and to follow Boko Haram’s interpretation. 175
According to the Office of the High Commissioner on Human Rights (OCHR), discussions with
psychosocial counsellors in northeast Nigeria confirmed widespread sexual violence against
women and girls held by Boko Haram. One counsellor reported that a girl who managed to
escape narrated how Boko Haram fighters would sexually abuse her, telling her ‘you are the kind
of girls we like’.176 Another interviewee told OHCHR that she witnessed the rape of girls as
young as 15.177

170 The Vanguard Newspaper Editorial, ‘Return of 82 more Chibok Girls’ (Editorial The Vanguard, May 12, 2017)
Available at www.vanguardngr.com/2017/05/return-82-chibok-girls/. accessed on 13th August, 2017.

171 Amnesty International; “Our job is to shoot, slaughter and kill”, Boko Haram’s reign of terror in North-East
Nigeria, April 2015, 24 available at www.amnesty.org, accessed on 9th September, 2015

172 Ibid

173 Ibid at 63

174 Ibid at 64

175 Ibid

176 Office of the High Commissioner on Human Rights (OCHR) op cit

177 Ibid
41
OHCHR also documented cases of rape emanating from forced marriages to Boko Haram
members, during an attack on Bama, Borno state, Nigeria, in September 2014.178 OHCHR was
informed about a Nigerian refugee woman in Niger, who was abducted in Damasak, Borno state,
on 28 November 2014, and raped by 40 men.179 A 14-year-old girl told OHCHR she was raped
when Boko Haram attacked Damasak, in November 2014, and that, after killing the men and
boys, they took the women and children to a house and selected some 40 girls to marry their
fighters. She was forcefully married and raped three times before escaping, during a “wedding”,
with three other girls.180
The Borno Elders and Leaders of Thought pressure group accused the Military JTF of killing
innocent young men and raping of married women and young girls though the Military denied
the allegations.181
These violations are an affront to Paragraph 133 of the Beijing Declaration, 182 right to dignity of
person as enshrined in Section 34 of the Nigerian Constitution and Article 8 of the ICCPR
respectively. Furthermore, forced marriages are gross violations of the provisions of Article 23
(2) and (3) of the ICCPR. 183 Amnesty International also indicated in its reports that it received
information that some abducted girls under the age of fifteen were forced to take active part both
in battle and in executions.184 This act constitutes a war crime and is a flagrant abuse of the rights
of the child. The Optional Protocol to the Convention on the Rights of the Child, 1989, which
borders on the involvement of children in armed conflict, prohibits armed groups such as the
Boko Haram sect from recruiting or using in hostilities persons under the age of 18 years. 185 The
178 Ibid

179 Ibid

180 Ibid

181 Daily Trust, 15 July 2011 cited in Mohammed op cit at 27

182 The Beijing Declaration and Platform for Action of the Fourth World Conference on Women, 1995. Available
at www.beijing20.unwomen.org/…/…/BeijingDeclarationAndPlatformForAction-en.pdf. accessed on 19 th January,
2016
183 Article 23 (2) and (3) of the ICCPR provides thus;
(2) The right of men and women of marriageable age to marry and to found a family shall be recognized.
(3) No marriage shall be entered into without the free and full consent of the intending spouses.
184Amnesty International, “Our job is to shoot, slaughter and kill”, Boko Haram’s reign of terror in North-East
Nigeria op cit at 24

185 Article 4 (1) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in
armed conflict
42
Nigerian Child Rights Act also prohibits the use of children in any military operation or
hostilities or other criminal activities.186 The issue of forced religion is a gross violation of the
right to freedom of religion as enshrined in Section 38 of the Nigerian constitution. 187 This
provision of the constitution is very important in a multi-religious country like Nigeria, where
various religious beliefs and practices must be accorded equal opportunity. Thus, no one must be
punished for entertaining or professing any religious belief or disbelief. 188
It is pertinent to state that armed conflicts such as the Boko Haram insurgency do have a
devastating and harsh impact on women and girls. Women and girls suffer violations such as
rape, forced prostitution, sexual slavery and forced impregnation.189

5.3 Displacement and separation from family Members

As a result of the insurgency, many women and girls have fled their ancestral homes, thereby
losing their adequate standard of living rights such as health, shelter, water and sanitation. As a
result of displacement, many young girls of school age are out of school. Increase in Internally
Displaced Persons has resulted in food shortages and the use of children especially the girl child
to look for food, thus making them vulnerable to sexual abuse. Furthermore, there are protection
issues such as “insecurity, tensions amongst residents, and between them and host communities,
and sexual and gender-based violence” across Internally Displaced Persons’ Camps in the
Country.190 Displacement also causes separation between family members while fleeing.

186 Sections 34 and 26 respectively, of the Child Rights Act, Cap C50, Laws of the Federation of Nigeria,2004

187 Sub-sections (1) and (2) of this section provides that:

(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his
religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest
and propagate his religion or belief in worship, teaching, practice and observance.
(2) No person attending any place of education shall be required to receive religious instruction or to take part in or
attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other
than his own, or religion not approved by his parent or guardian.
188 St. Emmanuel, S. A; “Interplay of Humanitarian Law and Human Rights Law in Boko Haram Insurgency”
(2015) 3 (1) Akungba Law Journal, 213 – 238 at 230
189 Lindsey, C, ‘The Impact of Armed Conflict on Women’, in: Durham/Gard, Listening to Silence: Women and
War, 2005, 21 cited in European Center for Constitutional and Human Rights (ECCHR),
‘Alternative report on the implementation of the UN Convention on the Elimination of Discrimination against
Women (CEDAW) - Sri Lanka’ “Women and Armed Conflict” Berlin/Geneva, January 2010. Available at
www2.ohchr.org/English/bodies/cedaw/ECCHR_Sri_Lanka_for_the_session_CEDAW48.pdf accessed on 7th April,
2016
190 Office of the High Commissioner on Human Rights (OCHR); Report of the United Nations High Commissioner
on Human Rights on Violations and Abuses Committed by Boko Haram and the Impact on Human Rights in the
Affected Countries. Available at www.ochr.org/.../HRC/.../A-HRC-30-67_en.doc. accessed on 7th November, 2015
43
 5.4 Economic, Social and Cultural Rights
The insurgency has violated the economic, social and cultural rights of women and the girl child
in that, provisions of social services are interrupted. Schools, Hospitals and Government
buildings have been burnt by the insurgents during raids. Majority of the female children in
North-East Nigeria are out of school because of the ban on western education by the sect, fear of
abduction and rape, no learning facility due to burnt and destroyed schools. This is a gross
violation of the right to education as provided for under international 191 and regional
instruments192 ratified by the Country.
Another right of the female gender violated under this category of rights is the right to work. The
right to work signifies means of livelihood and breach of this right amount to loss of livelihood.
The North-East part of the country where the deadly sect operates is more of an agrarian society,
with many of the female folks living on farming. The fear of insurgency and counter-insurgency
has made many women to flee their villages and thus not able to cultivate their farmlands. While
the shops of those who are into trading especially Christian women have been looted and
destroyed by the sect during raids,193 thereby reducing income and economic growth and
increasing poverty among the affected populace.

5.5 Arbitrary Arrest, Unlawful Detention and Arbitrary Deprivation of Liberty

In towns overran by the sect, women were imprisoned in large houses and not permitted to
leave.194 Nigerian soldiers also committed abuses bordering on mass arbitrary arrest and unlawful
detention. The military arbitrarily and indiscriminately carried out targeted arrests of relatives of
suspected Boko Haram Members. According to Amnesty International, a senior military official
informed it in confidence that the military had arrested women married to senior Boko Haram
members and their children. He shared with Amnesty International a document, dated 12 March

191See Articles 26 of the Universal Declaration of Human Rights; 13 and 14 of the ICESCR; 10 of CEDAW

192See Articles 17(1) of the African Charter on Human and Peoples’ Rights; 11 of the African Charter on the
Rights and Welfare of the Child

193 Barkindo et al op cit at 19

194 Amnesty International, “Our job is to shoot, slaughter and kill”, Boko Haram’s reign of terror in North-East
Nigeria op cit at 63
44
2013, which contains a list of 17 women and girls, all apparently married to Boko Haram
suspects, who were detained by troops from Operation Restore Order (ORO) III in Presidential
Lodge, Damaturu in Yobe state. Eleven of them were detained with their children. The document
indicates that most were arrested between September and November 2012. Two of them were
girls aged 14 and 16.195 Under the Convention on the Rights of the Child, 1989, State parties
have an obligation to “respect and ensure respect for rules of international humanitarian law
applicable to them in armed conflicts which are relevant to the child. 196 Furthermore, Amnesty
International has also documented the arrest and detention of 30 women and girls. 197 The vast
majority of arrests carried out by the military and imprisonment on the part of the sect are
entirely arbitrary. These arrests contravene the fundamental right to liberty and are clear
violations of the rights of the above mentioned women and children not to be subjected to
arbitrary arrest or detention, a fundamental right guaranteed under Section 35 of the Constitution
of the Federal Republic of Nigeria, 1999,198 the International Covenant on Civil and Political

195 Amnesty International, Stars on their Shoulders. Blood on their Hands, War Crimes committed by the Nigerian
Military, June 2015, 80 - 81. A report by Amnesty International. Available at www.amnesty.org, accessed on 18th
July, 2015.

196 Article 38(1) Convention on the Rights of the Child

197 Amnesty International, Stars on their Shoulders. Blood on their Hands, War Crimes committed by the Nigerian
Military op cit at 76

198 This section provides that Every person shall be entitled to his personal liberty and no person shall be deprived
of such liberty save in the following cases and in accordance with a procedure permitted by law;

(a) In execution of the sentence or order of a court in respect of a criminal offence of which he has been
found guilty;
(b) By reason of his failure to comply with the order of a court or in order to secure the fulfillment of any
obligation imposed by law;
(c) For the purposes of bringing him before a court in the execution of the order of a court or upon reasonable
suspicion of his having committed a criminal offence, or to such extent as maybe reasonably necessary to
prevent his committing a criminal offence;
(d) In the case of a person who has not attained the age of eighteen years for the purpose of his education or
welfare;
(e) In the case of a person suffering from infectious or contagious diseases, persons of unsound mind, person
addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the
community; or
(f) For the purpose of preventing the unlawful entry of any person into Nigeria, or of effecting the expulsion,
extradition or other lawful removal from Nigeria of any person or the taking of the proceedings thereto.
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting
trial shall not continue to be kept in such detention for a period longer than the maximum period of
imprisonment prescribed for the offence.
45
Rights (ICCPR)199 and the African Charter on Human and Peoples’ Right (African Charter),
which Nigeria is a signatory.

5.6 Reproductive Rights

Women also suffer the risk of being infected with sexually transmitted diseases (STDs) and
HIV/AIDs by their abductors. For example, members of the sect, after taking control of towns
regularly raped women with or without condoms despite the prevalence of HIV.200
Some women as a result of been raped by members of the sect, become pregnant with unwanted
pregnancies and illegitimate children, thereby suffering rejection from family members and
becoming the laughing stock of the society. About 150 women from the Dalori camp, which
opened in April 2015 and hosts Internally Displaced Persons from Bama, had given birth after
they escaped from captivity.201
According to OHCHR, Numerous women and girls gave birth or miscarried in extremely
difficult conditions.202 For instance, during a Boko Haram attack on Gwoza, Nigeria, in
September 2014, an interviewee said she gave birth in the bush while fleeing. 203 According to
numerous interviews conducted by OHCHR in Nigeria, several women died during childbirth or
were forced to abandon their new born babies as they escaped attacks in Baga, Gwoza, and

Furthermore, in spite of the imperfections of the Nigerian constitution as regards the above provision, it does not
empower the Military to detain individuals without reasonable suspicion and without oversight by the courts. See
further, Section 23 of the Terrorism (Prevention) Act as amended in 2013.
199 Article 9 provides as follows:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time
or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but
release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the judgement.
200 Amnesty International, “Our job is to shoot, slaughter and kill”, Boko Haram’s reign of terror in North-East
Nigeria op cit at 64

201OHCRC op cit

202 Ibid

203 Ibid
46
Michika.204 A woman, who was rescued from Sambisa forest, informed OHCHR that she
witnessed births by 10 women while held captive in the various Boko Haram strongholds. 205
These are clear violations of the rights to birth control, access good-quality reproductive
healthcare and the right to make education and access in order to make free and informed
reproductive choices as enshrined in Article 14 (1) of the Maputo Protocol, which guarantees the
health and reproductive rights of women. 206According to Amnesty International, violence against
women violates their bodily integrity because a woman’s right to control her sexuality and
reproduction is a basic human right.207

6. Consequences on Human Rights Law and Humanitarian Law

The various nefarious acts of the sect and counter-insurgency measures by the Nigerian State
amounts to gross violations of international human rights law and international humanitarian law
as applicable to non-international conflict. Humanitarian law and Human Rights law are closely
related. Both have common values, which are primarily those of respect for and dignity of
human persons though Humanitarian Law is concerned with the regulation of armed conflict.
In non-international armed conflict such as the Boko Haram insurgency, both human rights law
and humanitarian law are applicable. It follows therefore, that the Nigerian state remains bound
by its obligations under international human rights law, while all parties to the conflict, including
the Boko Haram sect as a non-state armed group, are bound by the rules of international
humanitarian law. Thus both parties to the conflict are responsible for violations of international

204 Ibid

205 Ibid

206 This Article provides that -

(1) States Parties shall ensure that the right to health of women, including sexual and
reproductive health is respected and promoted. This includes:
a) the right to control their fertility;
b) the right to decide whether to have children, the number of children and the spacing of children;
c) the right to choose any method of contraception;
d) the right to self-protection and to be protected against sexually transmitted infections, including
HIV/AIDS;
e) the right to be informed on one's health status and on the health status of one's partner, particularly if
affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally
recognised standards and best practices;
g) the right to have family planning education.
207 Amnesty International, USA, ‘Sexual and Reproductive Health Rights’. Available at
www.reproductiverights.org/sites. Accessed on 7th April, 2016
47
humanitarian law. Serious violations of international humanitarian law constitute war crimes and
entail individual criminal responsibility. Certain crimes, when committed as part of a widespread
or systematic attack directed against any civilian population (in furtherance of a state or
organizational policy), with knowledge of the attack, constitute crimes against humanity, which
also warrant and entail individual criminal responsibility.208
The female gender is protected under international humanitarian law. Violence to life and
persons, inhuman treatment, the taking of hostages, collective punishments, slavery and
punishments are prohibited.209 There are special protections covering particular categories such
as the wounded and sick, medical and religious personnel, women and children.210 It can be
garnered that humanitarian law in this context is to mitigate the effect of the insurgency on the
female gender.
Furthermore, the protection from human rights violations and security of a person especially that
of a member of the female gender is a basic human right that is globally recognized and also a
fundamental duty of the State.211 Consequently, the Nigerian state is required to respect,
safeguard and guarantee the human rights of its citizens. It also has a duty to ensure that victims
of human rights and humanitarian violations, their dependants and families have a right to
reparation, in order to address the damage and pain they have suffered. Such reparation includes
restitution, compensation, rehabilitation, medical care and psychological aid. Furthermore, it is
also duty bound and obligated under the Rome Statute of the International Criminal Court (ICC)
and International Law to bring the violators of human rights and humanitarian law to justice
through the investigation and prosecution of crimes committed by both parties to the conflict.212
Examples of members of the deadly sect prosecuted and convicted so far, include that of Kabiru
Umar alias Kabiru Sokoto, a member of the Shura (Decision Making) Council of the Boko
Haram sect and mastermind of the Christmas day bombing of St. Theresa Catholic Church,
208 ICRC Customary IHL Study, Rule 156. See further the case of The Prosecutor v. Dusko Tadić, Case No. IT-94-
1-AR72, ICTY Appeals Chamber, 2 October 1995
209 Articles 75 and 4 of the Additional Protocols I and II to the Geneva Convention of 1949 respectively

210 Articles 10, 15, 76, 77 of the Additional Protocol I and Articles 7 – 9 of the Additional Protocol II to the
Geneva Convention of 1949

211 St. Emmanuel op cit at 219

212 United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Adopted
and proclaimed by General Assembly resolution 60/147 of 16 December 2005. See also Paragraphs (4) and (6) of
the Preamble to the Rome Statute of the International Criminal Court
48
Madalla, Niger State in 2011, that killed at least 44 worshippers were killed while 70 others
sustained injuries.213 He was convicted for the offences of murder and terrorism, and
subsequently sentenced to life imprisonment on 20th December, 2013 by the Federal High Court.
Another trite example is the prosecution and conviction of three members of the deadly sect in
the persons of Ali Muhammed, Adamu Kurumi and Ibrahim Usman. These men were sentenced
to twenty-five (25) years imprisonment with hard labour for participating in acts of terrorism,
conspiracy to commit terrorism, illegal possession of firearms and being members of a
proscribed organization. These offences contravene the provisions of Sections 13(2) and 17(b) of
the Terrorism Act, 2013 and Sections 1, 8, 27 (1) (a) and (b) of the Firearms (Special Provisions)
Act, Cap F. 28, Laws of the Federation 2004. 214 In this case Seventeen (17) suspects were
charged to Court by the Lagos State Government but were later reduced to four (4) due to the
withdrawal of the case against thirteen (13) suspects.215
From the foregoing, it can be deduced that little has been done by the Nigerian State in this
regard. In an earlier work, St. Emmanuel posits that victims, their dependants and families have
an alternative means of bringing their assailants to justice vide prosecuting the violators before
the International Criminal Court.216
The International Criminal Court has jurisdiction over the violations of human rights of the
female gender by the Boko Haram sect and Nigerian Military because they amount to war crimes
and crimes against humanity such as pillaging of towns, displacement of civilian population,
rape and other forms of sexual violence.217 The ICC also has jurisdictions over individuals,
213 The Leadership Newspaper, Kabiru Sokoto: Police Reverses Zakari Biu’s Dismissal, Promotes 2 CPs to AIGs.
Available at http://.leadership.ng/news/458770/kabiru-sokoto-police-reverses-zakari-bius-dismissal-promotes-2-cps-
to-aigs. accessed on 31st March, 2016. See also The Nation Newspaper, Xmas Day Bomber, Kabiru Sokoto gets
Life Sentence. Available at http://thenationonlineeng.net/xmas-day-bomber-kabir-sokoto-gets -life-sentence/
accessed on 31st March, 2016

214 The Leadership Newspaper, Court Jails Boko Haram Members 75 Years for Terrorism. Available at
http://.leadership.ng/news/385644/court-jails-boko-haram-members-75-years-terrorism. accessed on 31st March,
2016.

215 Ibid. These other thirteen suspects are Idris Ali, Mohammed Murtala, Kadiri Mohammed, Mustapha Daura,
Abba Duguri, Sanni Adamu, Danjuma Yahaya, Musa Audu, Mati Daura, Farouk Haruna, Abdullahi Azeez, Ibrahim
Bukar and Zula Diani. The 17th person, Bala Haruna, was discharged by the court on the ground that Lagos State
Government failed to prove the allegation of funding of terrorism leveled against him.

216 St. Emmanuel op cit at 236 - 237

217 Article 5 (1) (c) and Article 8 (2) (e) (iv) of the Rome Statute of the ICC
49
whether civilians or military and regardless of rank, who have committed serious violations of
international humanitarian law during the conflict. Consequently, violators can be found guilty
individually (that is, individual criminal responsibility) 218 and likewise, commanders and
superiors for crimes committed under their watch.219
A good example here is the ad hoc Tribunal for Former Yugoslavia (ICTY) recognizing a direct
form of individual criminal liability which was derived from “committed” and is known as joint
criminal enterprise (JCE).220 In Prosecutor v. Kristic,221 the ICTY declared that General Kristic
was responsible for several cases of murders and rapes as “there is no doubt that these crimes
were the natural and foreseeable consequences of the ethnic cleaning campaign. Given the
circumstances at the time the plan was formed, General Kristic must have been aware an
outbreak of these crimes would be inevitable given the lack of shelter, the density of the crowds,
the vulnerable condition of the refugees, the presence of the regular and irregular military and
paramilitary units in the area and the sheer lack of sufficient numbers of UN soldiers to provide
protection”222
Also in Prosecutor v. Blaskic,223 the ICTY stated that Colonel Blaskic’s liability was based on
superior responsibility. He was found guilty of war crimes on the basis that sexual violence was
foreseeable when barracking his troops in a school were civilian women were located. He “could
not have been unaware of the atmosphere of terror and rape which occurred at the school.”224

218 Article 25 of the Rome Statute of the ICC

219 Article 28 of the Rome Statute of the ICC

220 ECCHR op cit at 9

221 Judgement, Case No. IT-98-33-T, 2 August 2001. Sexual violence formed a part of the basis of the conviction
of Krstic for persecution as crime against humanity. He was the chief of staff and later commander of a Bosnian
Serb army corps cited in ECCHR op cit at 10

222 Ibid at para. 615

223 IT-95-14-T, 3 March 2000. Findings referring to rape committed against civilians in Bosnia Herzegovina were
made in the trial judgment. These findings did not relate to specific sexual-violence charges. They included findings
on multiple rapes of Bosnian Muslims by Bosnian Croat forces in a vil-lage; multiple rapes of detained Bosnian
Muslim women by Croatian forces and police; and a finding that the accused could not have been unaware of rapes
at certain school

224 Ibid at para. 732.

50
According to Sellers, this approach of recognizing the fore-seeability of sexual violence,
provides a useful, lucid framework for joint liability, especially for perpetrators who are
physically far removed from the locations of sexual assault crimes, including military and
political leaders.225
Furthermore, it is worth noting that war crimes are crimes under international law because they
are directed against the interests of the entire international community, thus the International
Criminal Court is empowered to prosecute and punish these crimes, not considering who
committed them or against whom they were committed. 226 Though the Nigerian State is yet to
domesticate the Rome Statute of the International Criminal Court which it ratified on 27 th
September, 2001,227 the International Criminal Court has jurisdiction over war crimes committed
on the territory of Nigeria or by its Nationals from 1 st July 2002 onwards.228 There is a pending
Bill for an Act to provide for the Enforcement and Punishment of Crimes against Humanity, War
Crimes, Genocide and Related Offences and to give effect to certain Provisions of the Rome
Statute of the International Criminal Court in Nigeria, 2013 before the National Assembly. This
Bill provides inter alia; for the punishment of those responsible for international crimes in
Nigeria and cooperation between Nigeria and the ICC to ensure the effective investigation and
prosecution of criminals.229 The Bill also provides for a Special Victims Trust Fund (SVTF) to
assist victims, their families and survivors of international crimes in Nigeria.230
As at 1st of June, 2013, the Office of the Prosecutor of the International Criminal Court received
sixty-five (65) Article 15231 communications pertaining to the Boko Haram insurgency in

225 Sellers, V, OHCHR, WRGUS, 16 cited in ECCHR op cit at 9

226 Werle G, Principles of International Criminal law, T. M. C Asser Press, The Hague, 2005, 58

227 The Nigerian Government drafted a bill titled ‘Crimes against Humanity, Genocide and Related Offences Bill,
2012 to implement the Rome Statute. This Bill passed the first reading and got to the stage of second reading in Mat,
2013. <http://www.pgaction.org/campaigns/icc/africa/nigeria.html> accessed on 4th April, 2016.

228Available at https://www.icc-cpi.int/en_menus/iccstructure%20of%20the%20court/office%20of%20the
%20prosecutor/comm%20and%20ref/pe-ongoing/nigeria/pages/nigeria.aspx accessed on 1st April, 2016

229 Section 2 of the proposed Crimes against Humanity, War Crimes, Genocide and Related Offences Bill, 2012

230 Section 93 of the proposed Crimes against Humanity, War Crimes, Genocide and Related Offences Bill, 2012

231 Article 15 (1) and (2) of the Rome Statute of the ICC provides as follows:
1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the
jurisdiction of the Court.
51
Nigeria, out of which Twenty-Six (26) were not within the jurisdiction of the court. 232 Five (5)
were found to warrant further analysis, while twenty-eight (28) communications were included
in the preliminary examinations.233
The results of the preliminary examinations were made public on 18 th day of November, 2010.234
The office of the prosecutor has further decided that the preliminary examination of the situation
in Nigeria should advance to phase 3 (admissibility) with a view to accessing whether the
Nigerian State is conducting genuine proceedings against the perpetrators, because there is a
reasonable cause to believe that crimes against humanity such as murder and persecution have
been committed.235 It is also worth mentioning that, crimes under the purview of the ICC are not
subject to any statute of limitation.236
According to Adeogun-Philips, the trial of members of the Boko Haram Sect and the Military at
the ICC should not be the only option open to the Nigerian Government because it is of great
importance to the international community that justice must not only be done but must be seen
by all Nigerians to be done., following the magnitude of the insurgency. 237 Adeogun-Philips
posited further that this cannot only be achieved by a trial at The Hague. 238 Adeogun-Philips
concludes that the Nigerian Government must be given the opportunity to demonstrate its ability
and/or willingness to investigate and prosecute members of Boko Haram and the Military for war
crimes through the use of a “localised” International Court rather than lean towards an ICC
prosecution.239

2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may
seek additional information from States, organs of the United Nations, intergovernmental or non-
governmental organizations, or other reliable sources that he or she deems appropriate, and may receive
written or oral testimony at the seat of the Court.
232 Available at https://www.icc-cpi.int/en_menus/iccstructure%20of%20the%20court/office%20of%20the
%20prosecutor/comm%20and%20ref/pe-ongoing/nigeria/pages/nigeria.aspx. Accessed on 1st April, 2016

233 Ibid

234 Ibid

235 Ibid

236 Articles 15 (5) and 29 of the Rome Statute of the ICC

237Adeogun-Phillips, C, Nigeria: Boko Haram/JTF – Justice must be done and be seen by all Nigerians to be done.
Available at http://allafrica.com/stories201408211030.html. accessed on 6th April, 2016.

238 Ibid
52
 7. Recommendations
Just like in any other society of the world, Nigerian women are attributed with different
traditional roles, such as wife, mother and nurturer and as such they are empowered in some
instances to be custodians of cultural, religious and social values. 240 Consequently, Fink, Barakat
and Shetrat posits that women are in a unique position, which they can use to radicalize, glorify
and encourage family members and children to seek martyrdom and keep terrorist organizations
viable through support activities such as propaganda, fund raising and recruitment. 241 They posit
further that, women can also be powerful preventers, who can partake in innovative endeavours
to inform, shape and implement policies and programmes to alleviate the consequences of
conflict and violent radicalization.242 It follows therefore that members of the female gender
should be empowered economically to participate in policy development dialogue and
programmes because when empowered they will possess more influence in their homes,
communities and the nation at large. Sequel to the foregoing, the following recommendations
and suggestion are hereby submitted as solutions in protecting the rights of members of the
female gender during the ongoing Boko Haram insurgency -
 The Nigerian National Assembly should enact into law, ‘A Bill for an Act to provide for
the Enforcement and Punishment of Crimes against Humanity, War Crimes, Genocide
and Related Offences and to give effect to certain Provisions of the Rome Statute of the
International Criminal Court in Nigeria, 2013 (SB 183)
 The Nigerian government should undertake a national security policy that will be gender
based and protect the rights of women and girls in order to assess and mitigate the impact

239 Ibid. Adeogun-Philips is of the opinion that a good example of a ‘localised’ international court will be the
establishment of an International Crimes Division, as a vital part of the Federal High Court, Abuja Judicial Division.
He opines further that the said court should be composed of local judges, investigators, ;registrars and prosecutors
appointed from within the local personnel but equipped with proper training on adjudicating and prosecuting cases
bordering on the commission of international crimes. Adeogun-Philips also believes that it is the full participation of
citizens from affected countries that differentiates a ‘localised’ international court from other international criminal
courts.

240 Fink, N. C; Barakat, F & Shetret, L; “The Roles of Women in Terrorism, Conflict, and Violent Extremism:
Lessons for the United Nations and International Actors” Policy Brief (2013) Center on Global Counterterrorism
Cooperation 4. Available at www.globalcenter.org/.../NCF_RB_LS_policybrief_1320.pdf. accessed on 16th
January, 2016

241 Ibid

242 Ibid
53
 of insurgency. A gender perspective should also be adopted into counter-insurgency
operations through the increase in the number of female law enforcement practitioners. It
is opined that female law enforcement personnel will understand gender sensitivities and
will therefore be able to extract intelligence and accomplish results.
 The Nigerian State should also partner and create multinational synergies with world
superpowers to facilitate the rescue and return of abducted members of the female
gender. In addition, the government should facilitate the rehabilitation and reintegration
of such rescued persons.
 Furthermore, the Nigerian State should adopt an intelligence approach in combating the
insurgency because this will be an effective way to put an end to the insurgency and also
a means to mitigate the effect of the insurgency on the female gender.
 The Nigerian State should tackle the causes of the insurgency such as corruption,
unemployment, poverty and economic inequality.
 The Nigerian State should independently, impartially and thoroughly investigate the
allegations of gross violations of human rights by its military and prosecute those found
guilty.
 Both the Boko Haram sect and Nigerian government should abide and comply with their
duties and obligations under human rights law and humanitarian law respectively and
stop unlawful targeting of women such as torture, killing, abduction, and unlawful
detention of women and indiscriminate and proportionate attacks on women.

8. Conclusion
This work examined the implications and effects of the ongoing sectarian Boko Haram
insurgency and reveals that the Nigerian government has a duty, under International Law to
prevent, investigate and punish human rights violations perpetrated by state and non-state actors
that is the Nigerian Military and Boko Haram sect respectively. The paper submits that the
Nigerian State has disregarded this obligation by not addressing human rights abuses perpetrated
on the female gender with impunity by its military and the deadly sect in particular. It submits
further that the fight against Boko Haram insurgency should also be a fight for the protection of
the rights and dignity of women because it is the women and children who bear the brunt of, and
are mostly caught in the web of the insurgency and counter-insurgency measures.
54
It is trite that before the Boko Haram insurgency, women and girls in Northern Nigeria faced
gender inequality, discrimination, high illiteracy level due to antipathy towards the education of
the girl child, soaring maternal mortality rate and domestic violence but their rights are still
indivisible, universal, inalienable and non-negotiable, hence the need for administrative dexterity
and taken of pragmatic steps to ensure women equality and protection of the rights of women.
The paper concludes that women should also be involved in peace making processes because
there can be no peace without the female gender.

CLINICAL LEGAL EDUCATION AND THE DELIVERY

OF SOCIAL JUSTICE: A CASE STUDY OF AKUNGBA
LAW CLINIC
ARTICLE WRITTEN BY:
SUNMOLA OLUWAFISAYOMI ABIMBOLA,
4OOLEVEL STUDENT OF ADEKUNLE AJASIN
UNIVERSITYAKUNGBA AKOKO, ONDO STATE.

ABSTRACT

One of the greatest innovation in the study of law is the incorporation of clinical
legal education into the theoretically based system of learning the law in tertiary
institutions. This idea is aimed at integrating the students into social justice
delivery mechanisms in the society. The clinical legal education, an initiative of
the Network of University Legal Aid Institutions (NULAI) is taught in various law
universities across the country in which Adekunle Ajasin University AKUNGBA
AKOKO ONDO STATE is a privileged member.

55
In ensuring the delivery of social justice, NULAI establishes law clinics in these
universities where curriculum is taught. The law clinics afford the students the
opportunity of participating and carrying out tasks to help the community
especially the indigents with matters that needs legal advice.

This research work seeks to explore the link or connection between clinical legal
education and social justice using the Akungba law clinic in the Adekunle Ajasin
University, Akungba Akoko, Ondo State, Nigeria as a case study. In this research
work, resort was made to primary and secondary sources such as textbooks,
journals, manuals, media and other source materials related to the course.

Findings were made that the Akungba law clinic over the years have handled over
1,000 cases on community justice and over 1,000 cases on pre-trial detention with
efficient follow-up which in turn has resulted in the effectiveness of public interest
litigation as well as effective access to social justice. To this end, the clinical legal
education and the delivery of social justice cannot be overemphasized.

INTRODUCTION

There is a link between legal education, public interest and social justice because
lawyers use their education for the benefit of the society. They render their services
to those who are unable to afford legal services and challenge injustice under the
justice system. Clinical legal education helps law students to be trained to imbue a
social and professional responsibility to pursue social justice in society.243

243 I .P Byron “Relationship between social justice and clinical education : A case study of the women’s law clinic,
faculty of law, university of Ibadan, Nigeria” Paper presented at the 11th International Journal of clinical legal
education conference; 11-13 July 2012. Retrieved through
http://www.northumbriajournals.co.uk/index.php/article/viewfile/22/27.
56
The aims or proponents of social justice and clinical legal education often refer to
the dual goals of hands-on-training in lawyering skills and provision of access to
justice for unrepresented clients. Students are taught professional and ethical
values while at the same time learn professional responsibilities and the need to
pursue justice and fairness in resolving client problems.244

DEVELOPMENT OF CLINICAL LEGAL EDUCATION IN NIGERIA

Clinical legal education (CLE) is a learning method which is focused on enabling

students to understand how the law works. It seeks to develop the skills and
competencies needed to strengthen the legal system, providing opportunities for
learning social justice concepts.245 Clinical legal education serves as a link between
the law and social justice issues. It bridges the gap between theory and practice.
Clinical legal education has helped on how to build rapport with people from
diverse cultures and backgrounds through the rendering of pro bono services to the
communities by law clinics.246

The Network of University Legal Aid Institutions (NULAI) is a non-profit, non-

political and non-governmental organization promoting clinical legal education,
reform of legal education, access to justice and legal aid in Nigeria. NULAI
Nigeria was established on 16th October 2003. It pioneered the introduction and
development of clinical legal education in Nigeria and currently coordinates all
existing law clinics in Nigeria.247

244 Barry, M., Dubin, J.C. and Joy, P.A (2000) clinical education for this millennium: the third wave, (reprint from)
7 clinical law review, volume 1, 69-70.

245 NULAI Nigeria 2010 Activities Report and strategy paper. Retrieved through
http://www.nulai.org/index.php.....on 27 September, 2017

246 Opcit

247 NULAI Nigeria 2010 Activities Report and strategy paper. Retrieved through
http://www.nulai.org/index.php....on 27 September, 2017
57
Prior to the emergence of clinical legal education in Nigeria, law was confined to
theoretical methods of teaching without applying much of practical skills which
caused law students to be ignorance of the professional skills as seen in the words
of Justice Warren Burger when he stated that “the shortcomings of today’s law
graduate lies not in a decent knowledge of law but that law students should be
trained while in the university so that they will start acquiring practical skills
before they go to law school.248 The major aims of the clinical legal education are
to enhance law students to be equipped in research skills, communication skills,
interviewing of clients and witnesses, counseling, drafting, negotiating and
problem solving skills so as to help them as a graduate of law in their advocacy
skills and in practice.

NULAI therefore devised that clinical legal education should not only be taught in
the Nigerian law school but also in the universities. 249 These university based law
clinics are non-profit organizations that allow law students to provide free legal
services and access to justice for the under privileged, deprived and neglected
members in the different communities under the supervision of practicing lawyers.
Law clinics are where students re exposed to the practical area of law and are
allowed to practice law. Law clinics promote social justice. 250 Law clinics in
Nigeria universities serve as a medium for students to appreciate the social
perspective of legal practice and to acquire practical skills.

CONCEPTUAL CLARIFICATION
248 Burger, W. (1973) The special skills of Advocacy: Are specialized Training and Certification of advocates
essential to our system of justice 42 FORD. L. REV. 227, 232

249 CLINICAL LEGAL EDUCATION curriculum for Nigerian universities. Retrieved through
http://www.nulai.org/index.php....on 27 September 2017

250 Voyvodic, R. & Medcalf, M.” Advancing social justice through an interdisciplinary approach to clinical legal
education: The case of legal assistance in windsor, 14 Washington University Journal of Law and policy[vol. 14:
101 & 103] Retrieved through http://www.papers.ssm.com/........ On 27 September 2017
58
CLINICAL LEGAL EDUCATION

Clinical legal education (CLE) can be defined as an educational program grounded

in an interactive and reflective teaching methodology with the main aim of
providing law students with practical knowledge, skills, and values. 251 CLE is
essentially a multi-discipline, multi-purpose education which can develop human
resources and idealism needed to strengthen the legal system….. 252 CLE can also
be defined as the use of any kind of practical or active training for legal
professionals to impart such skills as the ability to solve legal problems through the
use of various dispute resolution mechanisms providing legal representation, the
recognition and resolution 0f ethical dilemmas, promoting justice, fairness and
morality.253 CLE is the law school training in which students participate in actual
cases under the supervision of a practicing attorney or law professor.254

From the above definitions, it can be said that clinical legal education has one
common characteristics which is CLE aids or help students to be exposed to the
practical aspects of the legal profession.

SOCIAL JUSTICE

Social justice can be defined as the fair distribution of health, housing, welfare,
education and legal resources on an affirmative action basis to disadvantaged

251 I.P Byron,” Relationship between social justice and clinical legal education……paper presented at the 11 th
International Journal of Clinical legal education conference; 11-13 July 2012……..p.566

252 Kaur, K. “Legal education and social transformation” available at http://alsonline.amity.edu/docs/...pdf on June
2010

253 Wilson, R.J (1996) “Clinical Legal Education as a means to improve access to justice in developing and Newly
Democratic Countries; ( A Paper Presented at the Human Rights Seminar of the Human Rights Institute
International Bar Association, Berlin)

254 Bryan A. Garner, “ Black’s law dictionary” 9th edition

59
members of the community.255 Social justice is the justice that conforms to a moral
principle, such as that all people are equal.256 Social justice can also be defined as
one or more equitable resolutions sought on behalf of individuals and communities
who are disenfranchised, underrepresented, or otherwise excluded from
meaningful participation in legal, economic, cultural, and social structures, with
the ultimate goal of removing barriers to participation and effecting social
change.257 Social justice through access to justice is aimed at educating the
neglected members of a community while addressing their legal problems. It
emphasizes that everyone deserve equal opportunities economically, politically and
socially and it works on the universal principles that guide people in knowing what
is right and what is wrong.258

CLINICAL LEGAL EDUCATION AND THE DELIVERY OF SOCIUAL

JUSTICE

The exact or main goal of CLE has been to provide legal education in the interest
of justice. Its major objective has been to enhance or equip law students in the
legal skills and knowledge so as to meet social and individual needs. The result is
to imbibe in students an obligation to perform public service and to challenge
tendencies in students towards opportunism and social responsibility. 259 CLE

255 Cf AM Honore “Social Justice” in R Summers(eds) Essays in Legal Philosophy(1968) 68; PN Bhagwati
“Human Rights as Evolved by the jurisprudence of the supreme court of India” 1987 Commonwealth Legal Bulletin,
236

256 Bryan A. Garner, “Black’s law dictionary” 9th edition

257 Ibid.

258 Social Justice Definition: Retrieved through www.socialjusticedefinition.com on September 2017.

259 Duncan K (1970) How the law school fails: A polemic, 1 Yale Rev. L & SOC. Acton 71, 80.
60
enables students to learn from experience and to combine the practical and
theoretical aspects of law and also expose them to social justice issues. 260

One of the major objectives of CLE is social justice. Through social justice,
students experience how people outside of their community lives. It emphasizes
societal concerns, self-determination, interdependence including issues of equity
and social responsibility.261 Clinical law teachers have the responsibility of making
their students commit to social justice. Law teachers should also imbibe in the
students a sense of their own ability and responsibility for using law to challenge
injustice by assisting the poor and the powerless.262

Law clinics are client-centered and are all about building and sustaining
relationships within these communities. They foster in students community
lawyering.263 CLE gives the students the opportunity of getting out of the
classroom into the real world of law, and getting a real understanding of how legal
doctrine works.264 Stephen Wizner, stated that, “It was not enough to simply
provide students the opportunity to experience the real world through the
representation of low-income clients but to also sensitize the students as to what
they were seeing, to guide them to a deeper understanding of their client’s lives….,
and to help students develop a critical consciousness imbued with a concern for

260 Kreiling, K.E. (1981) Clinical Education and Lawyer Competency: The process of Learning to Learn from
Experience through properly Structured Clinical Supervision, 40 Md. L. Rev. 284)

261 Bell, L.A (1997) Theoretical foundations for social justice education. In M. Adams, L.A Bell & P. Griffin
(Eds.), Teaching for diversity and social justice: A sourcebook (pp. 3-15). New York: Routledge

262 Aiken, J.H (1997), Striving to Teach “Justce, Fairness and Morality”, 4 CLIN. L. REV. 1, 6 n. 10

263 Ibid. footnote 1 p.568

264 Pincus, W. (2001) Concepts of Justice and of Legal Education Today, in Clinical Education for law students
125, 131 (1980)
61
social justice”.265 CLE helps students to develop a personal commitment to social
justice. CLE realize how important legal representation is to the resolution of the
client’s problems, thereby making the students conscious of her responsibility not
only to the client266 but also to the surrounding communities. Clinical programs
offer students “a practical vision of law as an instrument of social justice” and
provides students an opportunity “to have social impact and create new and better
laws”267

According to Buckley,268 the process of encouraging students to embrace a

commitment to social justice in their future professional work is to maintain the
education imbibed with social justice and humanitarianism should a student who is
characterized by three qualities. The first quality is an effective dimension of social
justice: the student should have sensitivity to injustice and innocent suffering in the
world. The second quality is an intellectual dimension of justice: the student should
know the causes or conditions the cause and perpetuate human suffering by
understanding theories of oppression and liberation. The third quality is pragmatic
or volitional dimension of justice: the student must learn tools and skills that will
allow him or her to effectively intervene and in doing so, contribute to a vision of
social justice.269

AKUNGBA LAW CLINIC

265 Wizner, S. (2001), Beyond Skills Training, 7 Clin. L. Rev. 327, 338-39)

266 Wizner, s. (2002), “The Law School Clinic Legal Education in the interest of Justice”. Faculty Scholarship
series. Paper 1843.)

267 Askin, F. (1999). A law school where students don’t just learn the law: They help make the law, 51 RUTGERS
L. REV. 855.

268 Buckley, M. J. (1998). The Catholic University As Promise And Project: Reflections in a Jesuit idiom.
Washington DC: Georgetown university press

269 Ibid. Footnote 1 page 569-570

62
Akungba law clinic was established in the year 2002. It is a specialized clinic to
offer pro bono legal services to the indigent in the neighborhood of the university.
The clinic helps the students to expose to live clients’ cases, they handle interview
and counselling of clients. It encourages alternative dispute resolution mechanisms,
(besides litigation) that remedy wrongs and at the same time maintain the integrity
and harmony of the community.270

The clinic provides a legal platform for children, women, men (people, especially
the poor) who have little or no access to justice as a result of social and cultural
factors. The clinic operates as a general interest access to justice clinic with serious
bias for human right cases, tenancy matters (right to housing), pre-trial detention,
child rights, freedom of information271.

The objectives of the clinic are: to provide free legal services to less privileged in
Akungba and its environs; to train law students in the practice of law by utilizing
techniques of clinical legal education. CLE in the faculty of law, Adekunle Ajasin
University, Akungba Akoko Nigeria is thought as an elective course in 400l and
500l. The course involves the teaching of the practical lawyering skills in 400l and
clinical law in 500l. Students who work in the clinic are given an insight into the
real world of practice272. This is achieved by the students’ involvement and
interaction with clients on a daily basis.

The Akungba law clinic teaches and guides students, helping them look at issues
from different points of view by ensuring that they understand the legal process in

270 Akungba law clinic manual, clinical legal education program, faculty of law: Adekunle Ajasin University,
Akungba Akoko Nigeria. P. 3-4

271 Opcit.

272 McQuoid Mason, DJ (1985) “Legal Aid Clinics in Social Services” in D.J McQuoid Mason (Ed) Legal Aid and
Law Clinics in South Africa 64
63
the context of social policies and processes. Students are given a deeper and more
meaningful understanding of the law, the legal profession and the process of
becoming a lawyer.

The students’ participation in the clinic is a graded component for which they earn
credit points under the supervision of staff clinicians/supervisors. As part of the
active involvement in the clinic, students are divided into groups comprising of 15-
20 students in a group and each group comes up with a typed proposal to visit any
community within Ondo State,

The aim of this outreaches is to create awareness about the clinic and state ways in
which clinic activities can be tailored to meet the needs of the communities and to
make legal right available to all members of the community 273. The skills acquired
in the clinic by the students include client counselling, interviewing skills, drafting
of legal letters, research skills, communication skills etc. Other clinic activities
include community, market, hospital, church and secondary school based
outreaches. As a result of the Akungba law clinic sensitization, many cases have
being referred to the clinic for legal counselling, which the clinic was able to assist
through counselling and legal assistance. The Akungba law clinic being a member
of NULAI, partners with the Legal Aid Council of Nigeria in Ondo State in
achieving its set out objectives through the instrumentality of its four departments
namely:

CHILD’S RIGHT GROUP: This group deals with the right of respecting
children. A child’s right include: right to education, right against trafficking, right
not to be abused, right not to be involved in forced labour among others.

273 This issues are domestic violence, violation of human rights, tenancy/landlord issues, pre-trial detention, child
right etc
64
PRE-TRIAL DETENTION: This group deals with cases on arrests and pre-trail
detention. They try to enforce certain rights which subsist for the detainee. These
rights include; right to be charged to court, right not to be tortured, right to be
visited, presumption of innocence until otherwise proved right to bail and also right
to medical treatment.

COMMUNITY JUSTICE GROUP: this group deals with tenancy/landlord

issues. They sensitize the community through symposiums, outreaches, town hall
meetings and awareness about their right.

FREEDOM OF INFORMATION ACT 2011: The Freedom of Information Act

group which is similar to the Community justice group in the area of publicity and
sensitization has to do with the FOI Act anchored on the Right to Expression in the
constitution which gives any citizen the right to question elected leaders.

BENEFITS OF THE CLINICAL LEGAL EDUCATION TO STUDENTS.

The benefits of the clinical legal education are numerous. Students acquire
knowledge of trial procedures including substantive law by practicing mock/moot
trial.274 It gives students the opportunity to explain why they are taking certain
steps, which enables them to discuss and reconsider their actions. 275 It helps
students to develop and improve in the lawyering skills, ethical and professional
values.

274 Akungba law clinic manual, clinical legal education program, faculty of law: Adekunle Ajasin University,
Akungba Akoko Nigeria. Pg. 5

275 See Richard L, “Clinical Legal Education Revisited” Professor of law, Cardiff University, Wales United
Kingdom, Pg. 5
65
It gives students the opportunity to learn and use terminologies as applicable to
legal forms and legal documents such as statutes, cases and regulations.

It provide students with the opportunity to practice and apply alternative Dispute
Resolutions Mechanisms. Students sharpen their understanding of professional
responsibility and deepen their own values as well as those of their own values as
well as those of the profession as a whole.276

It enables students to learn the techniques of time management. Clinical Legal

Education is not only beneficial to students but also to clinical law teachers. It
therefore encourages strong interaction between teachers and students;
development of theoretical knowledge in practice; significant amounts of feedback
by both students and teachers which shows the level of knowledge gained by
students from teachers.277

LAW CLINICS IN NIGERIAN UNIVERSITIES

One of the failings in contemporary legal educations is that all too many students
graduate with a vast doctrinal based knowledge sealed within a context that cannot
be translated into practice.278 The driving force behind the establishment of law
clinics in Nigeria was as a result of the review committee set up by the council of
legal education which recommended that: “the adoption of knowledge and skills
based curricula and teaching process that enhanced the competence of lawyers in
practice irrespective of area or place of practice….there were recommendations on
the teaching methods advising the adoption of active, student centered techniques

276 A.B.A. TASK FORCE ON LAW SCHOOLS AND THE PROFESSION, at 238.

277 A handbook on the practcal forms on educaton at the faculty of law of the palacky university, Olomouc. A
project fnancially supported by the European social fund and the state budget of the Czech Republic.

278 Mitchell, J.B; Hollingsworth, Betsy R, Clark, P and Lidman, R (1995) “and then suddenly Seattle University
was on its way to a parallel integrative curriculum, 2 CLIN. L. REV.1, 21”.
66
as against the traditional lecture type which is most inappropriate for a vocational
school”.279

Universities throughout Nigeria should have law clinics in their various campus for
the following reasons:

 It helps students to be equipped with practical lawyering skills.

 It enables students to learn the practice and application of Alternative
Dispute Resolution.
 It enables students to be familiar or have an insight of how the legal
profession actually works in the real world.
 It provides students with Advocacy skills and the etiquette of the legal
profession generally.

CONCLUSION

This paper has examined the clinical legal education and the delivery of social
justice and how law students acquire practical training in their involvement in law
clinic as a case study. It should be emphasized here that in trying to access social
justice through law clinics, the social justice dimension should be brought to light.
Clinical legal education through the Akungba law clinic and other law clinics in
the universities trains law students to encourage Alternative Dispute Resolution
mechanisms, that is, resolving of issues peacefully by using the rule of law without
resort to a court of law. Students are trained in the university law clinics and
acquire practical skills before they go to the Nigerian law schools. Clinical legal
education programs focus on legal education and effective legal aid services and
access to justice in developing countries. Lawyers should see themselves as

279 Maman, T. (2009) Globalization of legal practice: The challenges for legal education in Nigeria, Paper delivered
at the 2nd Annual Business Luncheon of S.P.A Ajibade and co-legal practitioners, 19th November 2009 p.15
67
trustees of justice thereby teaching the students they have a responsibility to
commit to social justice.

RECOMMENDATIONS/SUGGESTIONS

The council legal education should make clinical legal education compulsory in all
universities and make law clinics mandatory because it serves as a means to
educate the students more on the practical aspect of law. There are thirty-six states
including the FCT in Nigeria and thirty-five universities. There are only fourteen
law clinics in Nigeria. There is therefore a low percentage in the number of
students who benefit from clinical legal education which is not meant to be. It
should be noted that the purpose of legal education in Nigeria is to prepare students
for the practice of law. There is therefore the need for the existing law clinics
under the umbrella of NULAI to create forums for other universities in Nigeria to
inculcate clinical legal education into their curriculum. The clinic enables students
to acquire practical lawyering skills before leaving the walls of the university. In
my own humble opinion, I would say clinical legal education should be made
mandatory in all universities in Nigeria and the creation of law clinics in schools
who in schools who are yet to have one, so as for all law students in Nigeria to be
able to benefits from the practical aspects of law before proceeding to the world of
practice generally.

68
Cybercrimes and Cybercrimes Investigation under the Nigerian Cybercrimes (Prohibition,
Prevention etc) Act, 2015: An Appraisal280(I consider the word cybercrimes appearing
tautologically hence I suggest that:Cybercrimes and its investigation…)

Abstract

The advent of (the) internet and online communication has revolutionalised the
technology and communication world,(technology and communication or Information
and communications technology) making the accessibility and transmission of
information easy(making access to, and transmission of informationeasier); hence, at the
press of a button, one can access, send and receive any(remember we have classified info
that are inaccessible.modify pls) information from different parts of the world.
280 KAZEEM LAWAL OLANREWAJU IS A GRADUATE, Faculty of Law, Adekunle Ajasin University
Akungba Akoko, Ondo State WITH DOUBLE FIRST CLASS FROM AAUA AND THE NIGERIA LAW
SCHOOL.
69
 Unfortunately (However), the malicious use of the internet has introduced a hitherto
unknown crime into our legal system, to wit; cybercrimes. Cybercrimes basically refers
to internet enabled crimes, that is, crimes committed via the internet or through the
instrumentality of the internet technology. The commission of this crime (which) has
caused great financial loss in addition to its physical damage, particularly to netizens in
Nigeria. Again, cyber criminality often presents problems of investigation because, the
nature of cybercrime is such that its perpetrators are often located in places other than
where their malicious act produce effect.(The nature of cybercrime is such…this often
presents pboblems of investigation) The pervasive nature of this crime in Nigeria, its
negative effect and the need to ease its investigation with the view to apprehension and
prosecution necessitated the enactment of the Cybercrime (Prohibition, Prevention, etc)
Act 2015.This paper therefore examines cybercrimes and its investigation in Nigeria with
particular focus on the new Cybercrime (Prohibition, Prevention etc) Act, 2015. Its
ultimately proffer possible solutions to ending cybercrimes in Nigeria.

Keywords: Cybercrime, Cybercrime Investigation, Nigeria, Internet Technology

Introduction

The introduction of the internet in 1969 as an experimental project of the Advance

Research Project Agency (ARPA) is (was) a watershed innovation in information and
communications technology(ICT). The internet has provided new opportunities, makes access to
and transfer of information, as well as made certain comm. transaction easy, as well made
possible certain commercial transactions, thereby removing the economic barriers hitherto faced
by nations of the world. However, despite the development trend associated with the internet, it
has brought about a new wave of crime which is threatening the social order in the society, 281 to
wit; cybercrime. The internet online (tautology) services, which are ordinarily suppose to be
blessings as they expose one to a lot of opportunities in various field of life are fast becoming
sources of discomfort and worry due to the atrocity being perpetrated through it (them). 282 The
emergence and the exponential increase in the rate of cybercrimes around the world are not too
surprising because, as postulated by an English philosopher Baron Verulam of Verulam and
Viscount of St. Albans (1561-1626), “crime is always a by-product of an innovation or
invention”.283Cybercrime is a growing concern for information security professionals, individuals

281 Kazeem, A. A., “Pattern and Consequences of Cyber-Crime in Tertiary Institutions in Zaria”, (Unpublished
Masters in Sociology Thesis, Ahmadu Bello University, Zaria Nigeria, 2010), p.15.
282 Ibid.
70
and organizations,284 this is due basically to its destructive effects and the danger its poses to
internet users (Netizens). In 2009, a McAfee study estimated global cybercrime costs at
$1trillion,285 although the figure was criticized, this show the extent of financial loss arising from
cyber crimes.

CyberCrimes in Nigeria
The emergence of cybercrimes in Nigeria is (also )traceable to the advent of the internet.
In Nigeria, cybercrimes are perform (carried out) by people of all ages ranging from young to
old, (tautology) but in most instances the young. Several youth engage in cyber crime with the
aim of emerging as the best hacker, or as a profit making venture since the tools for hacking in
our modern world has become affordable by many. 286 Prominent among many cybercrimes
perpetrated by youths in Nigeria are internet fraud “Yahoo Scam”, software pirating, Online Job
scam, etc. The rate of cybercrimes have reached an epidemic proportion that it now pose a
serious threat to e-commerce and particularly national security. Hence, the need for a legislative
intervention, in response, the (Cybercrime Prohibition, Prevention etc) Act. 2013, and
eventually, the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015287 were enacted to deal with
the growing scourge of cybercrimes Nigeria.
While the 2013 Act was the first Act enacted to specifically deal with cyber crimes in
Nigeria, the 2015 Act is the extant law on cyber crimes in Nigeria. In terms of its preamble, the
objectives of the Cybercrime (Prohibition, Prevention etc) Act 2015 are to “provide an effective
and unified legal, regulatory and institutional framework for the prohibition, prevention,
detection, prosecution and punishment of cybercrimes in Nigeria; ensure the protection of critical
national information infrastructure; and promote cyber security and the protection of computer

283 Mashe, U.G., and Patience, P., “The Need to tackle Cyber crime in Nigeria”, Peoples Daily News Paper, 10 th
October, 2015, available online at www.news.peoplesdailyng.com/index.php/2015/10/10/the-need-to-tackle-cyber-
crime-in-nigeria/ (accessed on 5th august, 2016)

284 Ibid.

285 Jeremy, K., “Cybercrime losses top $400 billion worldwide”, available online at
www.computerworld.com/article/2490566/security0/cybercrime-losses-top-400-billion-worldwide.html (accessed
on 3rd August, 2016)

286 Anah. B. H., Funmi. D. L., & Julius M., “Cybercrime in Nigeria: Causes, Effects and the Way Out”, ARPN
Journal of Science and Technology, VOL. 2, NO. 7, August, 2012, p. 625.
287 Hereinafter called the Cybercrime Act
71
systems and networks, electronic communications; data and computer programs, intellectual
property and privacy rights”.288 It is worthy to note that, prior to the enactment of the cybercrime
(Prohibition, Prevention, etc.) Act 2013, cybercrimes were prosecuted using the relevant
provisions of the Criminal Code Act,289 Penal Code,290 Advanced Fee Fraud and Other Offences
Act 2006291 and Economic and Financial Crime Commission Act 2004292.

Meaning of Cyber Crime

There have been great deals of debate among experts on what really constitutes a cyber
crime,293 this is because, many scholars have used the term “Computer Crime” interchangeably
with cyber crime, however, there are subtle differences between them, but before delving into
this, the meaning of cyber crime is considered. Cyber crimes refer to those species of offences
that requires the use of the internet technology for its perpetration, investigation and prosecution.
They are offences committed against individuals or groups of individuals with a criminal motive
to intentionally harm the reputation of the victim or cause physical or mental harm to the victim
directly or indirectly, using modern telecommunication networks such as internet (chat rooms ,
emails, notice boards and groups), and mobile phones(SMS/MMS). 294 According to Maat,

288 Preamble to the Cyber Crimes (Prohibition, Prevention etc.) Act 2015

289 Cap. 38 Laws of the Federation of Nigeria 2004, Sections 383, 419, 421, and 422. See further the case of
Harrison Odiawa v. Federal Republic of Nigeria (2008) LPELR-Ca/L/124/2006; FRN v. Okuna Christian Enddy
(Unreported) Suit. No. FHC/KD/117/2008

290 Section 287 dealing with the offence of theft

291 Section 1(1) of this Act provides that, “(1) Notwithstanding anything contained in any other enactment or law,
any person who by any false pretence, and with intent to defraud (a) obtains, from any other person, in Nigeria or in
any other country for himself or any other person; (b)` induces any other person, in Nigeria or in any other country,
to deliver to any person; or (c) obtains any property, whether or not the property is obtained or its delivery is
induced through the medium of a contract induced by the false pretence, commits an offence under this Act.” and
sub-section 2 provides that “A person who by false pretence, and with the intent to defraud, induces any other
person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a
thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this
Act.”
292 The relevant Section here is Section 6 and it provides that, “The Commission shall be responsible for- (a) the
enforcement and the due administration of the provisions of this Act; (b) the investigation of all financial crimes
including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud,
fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc. ;”
293 Mosud. Y. O., “Cyber Crime and Technology Misuse: Overview, Impacts and Preventive Measures”, Journal
of Computer Science and Information Technology, Vol.1, No.3, December, 2013. p.11.
294 Halder, D., & Jaishankar, K., Cyber crime and the Victimization of Women: Laws, Rights, and Regulations,
Hershey, PA, USA: IGI Global, 2011
72
“Cybercrimes encompasses all illegal activities where the computer, computer systems,
information network or data is the target of the crime and those known illegal activities or crime
that are actively committed through or with the aid of computer, computer systems, information
network or data”.295

What emerges from the foregoing is that, cyber crimes are basically internet enable
crimes, in other words, they are crimes committed through the platform and instrumentality of
the internet. Hence, to define cyber crime, we can say that, it is a combination of “Crime”,
“Computer” and “Internet” The peculiar nature of cyber crimes is that, they usually have effects
in places other than where they are committed, hence, the effect of cybercrime has cross-border
effects. The reason for this is that, internet based societies has no geographical boundaries.
Again, cyber crimes are not novel crimes, rather, they are traditional crimes committed through
novel means. For instance, internet fraud is synonymous with obtaining by false pretence as
defined in Section 419 of the Nigerian Criminal Code Act, the same can be said of other
cybercrimes offences.

As said earlier on, some writers are prone to using cyber crimes and computer crimes
interchangeable. However, though they are similar, there exist a subtle difference between them.
While cyber crimes are basically online crimes, and internet connection is required for their
perpetration, hence they can only be committed by Netizens, examples includes, Phishing, Virus
attack, online hacking operation, cyber squatting, internet fraud, cyber terrorism and host of
others. On the other hand, according to Valacich et al, computer crime is defined as the act of
296
using a computer to commit an illegal act, the distinctive nature of this crime is that, they are
committed offline, they include among others, computer theft, offline data theft and hacking
operations, unlawful access and exceeding lawful access to a computer.

Types of Cyber Crimes

295 Maat. S., “Cybercrime: A Comparative Law Analysis” (Unpublished Doctoral Thesis, University of South
Africa, Pretoria, South Africa, 2004), p.239.
296 Valacich, J. & Schneider, C. Information Systems Today-Managing in the Digital World, 4th edn., New Jersey,
Pearson, 2010.

73
 The Cybercrimes (Prohibition, Prevention etc.) Act, 2015 (hereinafter called the cyber
crime Act) provided for more than thirty cybercrimes, 297 ranging from, cyber terrorism, cyber
squatting, identity theft, etc. as well as the punishment in terms of prison sentence and fines
attached to them. However, the scope of this paper does not allow for a consideration of all the
cyber crimes contained in the aforementioned Act, hence, only the prominent ones are examined
here.

Unlawful Access to a Computer

Access to a computer is said to be unlawful if the user has no authorization, hence,
unlawful access to a computer is a form of electronic intrusion. Section 6 of the Cybercrime
(Prohibition, Prevention etc) Act, provides that, “any person, who without authorization,
intentionally accesses in whole or in part, a computer system or network for fraudulent purposes
and obtain data that are vital to national security, commits an offence and shall be liable on
conviction o imprisonment for a term of not more than 5 years or to a fine of not more than N5,
000, 000 or to both fine and imprisonment”.
From the foregoing provision, the actus reus of this offence is “accessing a computer
system or network without authorization”, it follows that where authorization is given, access
cannot be lawful, and consequently no offence has been committed under this Section. But what
happens where a person “exceeds authorized access”?. Although Section 6 of the aforementioned
Act did not expressly mention exceeding authorization, it is proposed that, where authorization is
given and exceeded, a person should be held guilty under this section. Again, it is not enough for
an access to be unlawful, in addition, it must be done with intent to fraudulently obtain data, and
such data must be vital to national security.
It should be noted that, where this offence is committed with the intention of obtaining
computer data, securing access to any program, commercial or industrial secrets or classified
information; use any device to avoid detection in the commission of such offence, or knowingly
or intentionally traffic in any password or information through which a computer may be
accessed without lawful authority, the punishment is increased to imprisonment for more than 7
years or a fine of not more than N7,000, 000 or to both.298

297 From sections 5 -36 of the Act

298 Secton 6 (2) (3) and (4) of the Cybercrime (Prohibiton, Preventon etc) Act 2015
74
Computer Related Fraud

This offence also known as internet fraud, basically involves the use of electronic
resources to present fraudulent or misrepresented information as a means of deception. 299
Internet fraud is a form of white collar crime whose growth is as rapid as the growth of the
internet itself,300 as contained in Section 14 of the Cybercrime (Prohibition, Prevention etc.) Act
2015 it is committed when a person knowingly without authority or in excess of authority causes
any loss of property to another, by altering, erasing, inputting, or suppressing any data held in
any computer, whether or not for the purpose of conferring any economic benefits on himself or
another person. Such a person is on conviction liable to either a fine of not less than N 7,000,000
or not less than a 3 years imprisonment or both. Again, Subsection 2 of Section 14 provides that,
anyone who with an intent to defraud sends an electronic message in which they materially
misrepresent any face, upon which reliance is made, thereby causing the recipient or another
person to suffer any damage or loss, is liable on conviction to a fine of N10,000,000 or a term of
imprisonment of not less than 5 years.
The above offence is rife in Nigeria and it is known as “Yahoo Yahoo”(earlier u used the
word yahoo scam,can u pls stick to one word pls.Either the yahoo scam or yahoo yahoo), the
case of Harrison Odiawa v. Federal Republic of Nigeria.301 In this case, the accused persons
duped and obtained various sums of money amounting to about US D2M (nt clear pls )from an
American citizen named Mr. George Blick. The leader of the syndicate used a fictitious name of
Abu Belgore and they used telephones (including GSM) and internet in making false
representation and sending fake or forged documents to their said victim who was convinced or
deceived to send or transfer the various sum of US dollars to some bank accounts in Nigeria and
elsewhere which were later claimed by or for the use of the syndicate. The e-mail
communication between Abu Belgore and the victim gave a false representation inter-alia that
there was a huge sum of US Dollars (about USD 20.5M) to be transferred to his Company
account in USA from Nigeria and also to procure some contracts from Nigeria Government (or
ministries) for his benefit or that of his company, it is on the basis of this false information that
299 Kazeem, A. A., op.cit., p. 30

300 Ibid.

301 (2008) LPELR-Ca/L/124/2006

75
the said victim parted with his money. The accused person were found guilty on 48 counts
charges for the offences of; conspiracy to obtaining money by false pretence, obtaining money
by false pretence etc. although, the said accused were prosecuted and punished under the
criminal code, it is submitted that, they can be conveniently punished for the same offence under
Section 14 of the Cyber crime Act under consideration.

Cyber Terrorism
According to the US Department of Defence, acts of terrorism involves the unlawful use
of, or threatened use of force or violence against individuals or properties, to coerce and
intimidate governments or societies often to achieve political, religious, or ideological
objectives.302 The strategy of terrorism is thus to shock, intimidate, alarm, publicize, polarized
opinion, provoke endless concessions and the dissolutions of social norms, shatter confidence in
the governing authorities, punish those considered guilty for the terrorists’ cause and to provoke
counter-terrorism.303 When this is perpetrated online or with the aid of the internet, it is called
“Cyber Terrorism”. Prof. Dorothy Dening(doble check d correct spelling for dening pls) gave a
brilliant definition of cyber terrorism when she said:
“Cyber terrorism is the convergence of terrorism and cyberspace. It is
generally understood to mean unlawful attacks and threats of attacks
against computers, networks, and the information stored therein when
done to intimidate or coerce a government or its people in furtherance
of political or social objectives. Further to qualify as cyber terrorism,
an attack should result in violence against persons or property, or at
least cause enough harm to generate fears. Attacks tat lead to death or
bodily injury, explosion, plane crashes, water contaminations, or
severe economic loss would be examples. Serious attacks against
critical infrastructures could be acts of cyber terrorism, depending on
their impact. Attacks that disrupt non essential services or that are
mainly a costly nuisance would not.”304

302 Available online at http:// www.terrorism-research.com (accessed, 15thJune, 2016); See further the provision of
Section 1 of the Terrorism Prevention Act ,2011

303 Taiwo, E.A., “Boko Haram terrorism and its Impact on the Right of the Girl-Child to Education in Nigeria”,
Akungba Law Journal, Vol.2. No.1, June, 2013, p. 21

304 Joshua. E.A., Terrorism, Kidnapping and Cybercrime in Nigeria, Abuja, Diamondreal Resources Consult, 2013.
Pp. 201-202
76
 The provision of Section 18 of the Cybercrime (Prohibition, Prevention etc) Act, 2015 is
also clear on what constitutes cyber terrorism, it provides as follows: “Any person that access
any computer or computer system for the purpose of terrorism, commits an offence and is liable
on conviction to life imprisonment”, it is provided further in sub-section 2 that, terrorism shall
have the same meaning under Terrorism (Prevention) Act 2011 as amended. 305 It therefore
follows logically that, the perpetration of any of the acts specified in section 1 of the Terrorism
Prevention Acts through the instrumentality of the internet amounts to cyber terrorism. Few
examples can be given.
In 1996, a computer hacker allegedly associated with the White Supermacist movement
temporality disabled a Massachusetts ISP and damaged part of the ISP’s record keeping system.
The ISP attempted to stop the hacker from sending out worldwide racist messages under the
ISP’s name. The hacker signed off with the threat, “You have yet to see true electronic terrorism.
This is a Promise”.306 Also in 1998, a 12 year-old boy successfully hacked into the controls for
the huge Roosevelt Dam on the Salt River in Arizona, USA; he released floodwaters that would

305 Section 1 (2) of the Terrorism (Prevention) Act 2011, provided that, “acts of terrorism means an act which is
deliberately done with malice after thought and which:

(a) May seriously harm or damage a country or an international organization;

(b) Is intended or can reasonably be regarded as having been intended to
i. Unduly compel a government or international organisation to perform or abstain from performing any
act;
ii. Seriously intimidate a population
iii. Seriously destabilize or destroy the fundamental political, constitutional, economic or social structures
of a country or an international organization; or”
iv. Otherwise influence such government or international organization by intimidation or coercion; and
(c) Involves or causes, as the case may be
i. An attack on a person’s life which may cause serious bodily harm or death;
ii. Kidnapping of a person;
iii. Destruction to a government or public facility, a transport system, an infrastructure facility, including
an information system, a fixed platform located on a continental shelf, a public place or private
property, likely to endanger human life or result in major economic loss;
iv. The seizure of an aircraft, ship or other means of public or goods transport or the diversion or the use
of such means if transportation for any of the purposes in paragraph (b) (iv) of this subsection;
v. The manufacture, possession, acquisition, transport, supply or use of biological weapon, explosives as
wells as research into ,a d development of biological and chemical weapons without lawful authority;
vi. The release of dangerous substance or causing of fire, explosion of floods, the effect of which is to
endanger human life;
vii. Interference with or disruption of the supply of water, power or any other fundamental natural
resource, the effect of which is to endanger human life;
viii. An act or omission in or outside nigeria which constitutes an offence within the scope of a counter
terrorism protocols and conventions duly ratified by Nigeria.
306 Joshua. E.A., op.cit., p.202
77
have inundated Mesa and Tempe, endangering at least one million people. 307 Again during the
Kosovo conflict in 1999, NATO computers were blasted with emails bombs and hit with denial
of service attacks by hacktivists protesting the NATO bombings.308

Identity Fraud and Impersonation

Identity fraud and impersonation is form of stealing someone’s identity in which
someone pretends to be someone else by assuming that person’s identity.309 This done typically
in order to access resources or obtain credit and other benefits in that person’s name.310 The mode
of committing this offence is simple; someone gains access to your personal information and
uses it for his own benefit.311 Again, it is usual especially in Nigeria, for cybercriminals to design
web links forms requesting users to fill in their basic information including, unique details like
pin numbers and use that to commit this crime. 312 Section 22 of the Act provides for the offence
of identity fraud and impersonation, and it attracts a 7 year imprisonment term or a N5, 000, 000
fine or both.

Cyber Stalking
Also known as cyber bullying, 313 it involves the use of internet resource to bully, assault
or harass, This harassment could be sexual in nature, or it could have other motivations including
anger. It generally takes place via the internet through the use of chat rooms, message boards,
instant massagers, discussion forums, social networks and e-mail. This is as a result of people
leaving information about their selves carelessly online; such information makes you vulnerable
to cyber stalking.314

307 Ogwezzy. M.C., “Types and Forms of Cyber Crimes”, Unpublished Cyber Law Lecture Note, 2016, p.12

308 Ibid., p.203

309 Ogwezzy. M.C., “Nigerian Cybercrimes (Prohibition, Prevention, etc.) Act, 2015”, Unpublished Cyber Law
Lecture Note, 2016, p.2

310 Ibid., p. 3

311 Anah. B. H., Funmi. D. L., & Julius M., op.cit., p.627

312 Ibid.

313 See Section 23 of the Tanzania Cybercrimes Act, 2015

78
 Cyber stalking is described in section 24 of the Act as when a person sends a message via
computer that is grossly offensive, menacing, obscenely indecent, criminally intimidating, or
false with the aim of causing needless anxiety, insult, danger, obstruction, threat ,criminal
intimidation, enmity, hatred ill, fear of death, violence or bodily harm to another person. A
person guilty of this offence is upon conviction liable to a fine ranging from N7,000,000 to
N25,000,000 or to a prison term of 3 to 5 years or both.

Cyber Squatting
Cyber squatting is described in section 25 the Act as when a person intentionally makes
use of a name, business name, trademark, domain name or any other word or phrase that is
registered owned or in use by any individual, body corporate or belonging to either the federal,
state or local government via the internet without authority for the purpose of interfering with the
use by the owner, registrant or legitimate prior user, or for the purpose of obtaining
compensation in any form for the release of the release of the business name, trade mark or
domain name to the rightful owner.
In cyber squatting cases, the typical behaviour is to register numerous trademarks, trade
names or domain names corresponding with well known names and marks and then attempt to
sell them to the rightful owner. On occasions, the names are merely shelved rather than used.
The cases of Harrods Plc v. UK Network Services Ltd315 illustrates cyber squatting. In this case,
the domain name “Harrods.com” was registered but not used by unrelated third party with
intention of selling the name to Harrods at an inflated price. On a suit for trade mark
infringement brought by Harrods, the defendant was held liable due to his dishonest intention. It
is worthy to note that cyber squatting is punishable under the Act with a fine of N5,000,000 or 2
years imprisonment or both.316

Phishing, Spamming and Spread of Computer Virus

314 Mosud. Y. O., op.cit., p. 14

315 (1996) Unreported Chd; see also Glaxo Plc v. Glaxowellcome Ltd (1996) FSR 388

316 Section 25(1) of the Cybercrimes (Prohibition, Prevention etc) Act, 2015
79
 Phishing is described as the criminally fraudulent process of attempting to acquire
sensitive information such as usernames; passwords and credit card details by masquerading as a
trustworthy entity in an electronic communication.317 It is simply a high-tech identity theft that
does not only steal personal information and identity from unsuspecting consumers, but also an
act of fraud against the legitimate businesses and financial institutions that are victimized by
phishing.318 Thus, have you ever received an e-mail requesting you to update your bank
information, and when you click on the link it takes you to what looks like the current bank’s
web page? The way it works is you are tricked to go there and update your information on a site
that has an ultimate research locator (URL) that is not same as your real bank’s URL.319
Spam is the use of electronic messaging systems to send unsolicited bulk messages
indiscriminately. While the most widely recognized form of spam is e-mail spam, the term is
applied to similar abuses in other media: instant messaging spam, Usenet newsgroup spam, Web
search engine spam, spam in blogs, wiki spam, online classified ads spam, mobile phone
messaging spam, Internet forum spam, junk fax transmissions, social networking spam,
television advertising and file sharing network spam.320
Computer virus are malicious programmes which when it infect a computer, it runs
against the wish of the owner, consequently erasing, suppressing, altering or modifying data, and
sometimes causing damage to a computer operating system. Examples of virus are Warms,
Botnets, Logic bombs, Trojan horse, I LOVE YOU virus etc. usually they are illegally sent as
attachment to e-mails, electronic files and document with the intent of paralyzing the receiving
computers. Once an e-mail or file is opened by the recipient, the virus, worms or Trojan horses
are released causing damage and having destructive effects on the computer or network.321
Phishing, spamming and spread of computer virus are punishable under section 32(1) (2) and (3)
of the Cybercrime Act, with 3 years imprisonment or a fine of N1, 000,000 or both.

317 Mosud. Y. O., op.cit., pp. 14-15

318 Wada, F., Odulaja, G.O., “Electronic Banking And Cyber Crime In Nigeria - A Theoretical Policy Perspective
On Causation” African Journal of Computing & ICT, January, 2012, p. 71
319 Moffitt, T., Pannatia, C., Prosenbeck, B., Scott, E. and Siversen, D. “The HRE online Experience- Technology
Misuse and Cyber Crime”, available online at https://sites.google.com/site/tommoffittportfolio/the-hre-online-
experience/technology-misuse-and-cyber-crime (Accessed on 10th August, 2016).
320 Anah. B. H., Funmi. D. L., & Julius M., op.cit., p.627

321 Obarisiagbon, E. I., “Sociological Reflections on the Rising Wave of Cyber-Crime in Nigeria”, Ilorin Journal
of Sociology, Vol. 7(1), July, 2015, p.217
80
 Although not exhaustive, the foregoing are some of the many types of cyber crimes
prohibited by the Cybercrime Act, other are, child pornography, 322 racist and xenophobic
offences,323 manipulation of an ATM or POS terminal, 324 electronic card relate fraud,325 Nigerian
419, etc.

Cyber Crime Investigation

Sequel to the commission of cybercrimes is cybercrime investigation. It basically
encompasses the totality of the steps usually taken by cybercrime investigators after the
commission of cybercrimes to determine and unearth; by whom the offence was committed, and
how it was committed with a view to eventually apprehension and prosecution of the
cybercriminals. It is worthy to note that, in Nigeria, cybercrime investigation is usually
undertaken by the agencies of the Economic and Financial Crime Commission, they alone did
not poses the monopoly of cyber crime investigation because, as provided in the Cybercrime Act,
any law enforcement officer can undertake cybercrime investigation.326 The ensuing discussion
briefly examines some of the cybercrime investigation techniques.327

Personal Interview: Typical cybercrime investigation starts with personal interview of the
victim conducted by the cybercrime investigator. Note however that, interview is usually sequel
to a formal complaint being made by the victim of the crime to the relevant law enforcement
328
agency, this can be illustrated with case of Harrison Odiawa v. FRN . In this case, after the
victim had been defrauded, he reported the case in Nigeria through the EFCC which commenced
investigation into the cyber fraud. The purpose of interview is to elicit form the victim,
information which are vital and relevant to the investigation of the crime, such as, name of the
322 Section 23 of the Cybercrime ( Prohibition, Prevention, etc) Act 2015

323 Ibid., section 26

324 Ibid., Section 31.

325 Ibid., section 33

326 See generally the provision of sections 45, 46 and 58 of the Cybercrime (Prohibition, Prevention, etc) Act 2015.

327 The techniques explained here are based on those adopted in Ogwezzy. M.C., “Cybercrime Investigation”
Unpublished Lecture Note, 2016

328 supra
81
suspect ( usually fictitious), web address, amount defrauded, mode of transmission of the said
amount etc. information garnered is then assemble inform of brief or case file, 329 with which
further investigation is effected.

Identification of the Suspect: On the basis of the information garnered at the interview stage,
the cyber crime investigator then proceed to uncover the identity of the suspect. One way of
achieving this is to find the Internet Protocol Address (IPA). The IPA is a series of numbers and
letters that is attached to every piece of data that moves on the internet. The investigator at this
stage needs the corporation of the internet service provider (ISP) not only to get the IPA, but to
get further information as who used it and when it was used. The question may then be ask, does
ISPs have the discretion to cooperate with and turn in any information requested by the cyber
crime investigator? The answer is an emphatic NO.
This is because, firstly, by the combined effect of section 40 (1) and (2) of the cybercrime
Act, it is the duty of every service provider in Nigeria to among others, disclose information
requested by any law enforcement agency or otherwise render assistance howsoever in any
enquiry or proceeding, and shall at the request of any law enforcement agency in Nigeria or at its
own initiative, provide assistance towards the identification, apprehension and prosecution
offenders (that is cyber criminals); identification, tracking and tracing of proceeds of any offence
or any property, equipments or device used in the commission of such offence among others. In
addition, to ensure that ISPs do not discard information about their subscribers as they willed, the
Cybercrime Act mandated them to keep all traffic data and subscriber information as may be
prescribed by the relevant authority for the time being, responsible for the regulation of
communication services in Nigeria, for a period of two years.330
In order to ensure compliance, failure to perform the aforementioned obligation render
the ISP on conviction to a fine of not more than N10, 000,000, in addition, each director,
manager or officer of such ISP shall be liable on conviction to imprisonment for a term of not
more than 3 years or a fine of not more than N7,000,000 or both.

329 Cameron. S.D.B., “Investigating and Prosecuting Cyber Crime: Forensic Dependencies and Barriers to Justice”,
International Journal of Cyber Criminology, Vol.9, Issue 1, January 2015, p. 60

330 Section 38 of the Cybercrime (Prohibition, Prevention, etc) Act, 2015

82
Physical Surveillance: Armed with relevant information about the cybercrime suspect, the
investigator may then proceed to begin surveillance. Surveillance basically involves, monitoring
the online and offline movement and activities of the suspect with a view to arrest and
prosecution. To achieve this, the investigator may deploy some antics, to wit; recording system
activity using “Remote Administration Tool” (RAT), Keyboard entries monitored using Key
strokes loggers, camera installed to capture passwords and physically link activity with a specific
user, and packet sniffers activated to intercept communication. 331 Again, computer surveillance
may also involves sting operation like honey pot, which is an enticement to lure cybercriminals
into a secured area of a computer server to illegally download files that can later be used agasint
them as evidence.332

Arrest, Search and Seizures: Consequent upon the surveillance, the cybercrime investigator
having monitored the activities of the suspect, then proceeds to arrest him or her. Any law
enforcement agency may effect arrest, search and seizure, pursuant to a warrant issued by a
judge on the basis of an ex parte application.333 The exercise of this power can be illustrated with
the case of Harrison Odiawa v. FRN,334 In the course of their investigation, the EFCC, were able
to trace the existence of an Internet facility called Communication Trend Limited (CTL) as the
location from where the e-mails (or internet) messages were sent to the victim by Abu Belgore.
The EFCC investigating team also found that the CTL was located at the business premises of
the appellant who operated a commercial internet, browsing, business (cybercafý) there at.
Thereafter, the appellant's business premises were raided by the EFCC team, and a green
bag was recovered (Exhibit P 19) which contained copies of some of the documents sent to PW1
by Abu Belgore. In addition, a GSM telephone with an MTN line number (No.08035856409),
which had been used to communicate to the said PW1 by Abu Belgore, was recovered from the
appellant's office.
Forensic Analysis: Sequel to arrest, search and seizure, computer and cellular forensics 335
analysis is done to extract relevant information from the seized computer(s) and or phone(s)
331 Cameron. S.D.B., op.cit., p.60

332 Ogwezzy. M.C., “Cybercrime Investgaton”, op.cit., p.7

333 See generally Sectoin 45 of the Cybercrime (Prohibiton, Preventon, etc,) Act, 2015

334 supra
83
which are basically potential evidence. Note however that, where the investigator is learned in
the forensic analysis, the services of computer and cellular forensics investigators are required.
What obviously followed the aforementioned analysis is prosecution, at this stage, the
cybercrime suspect is properly put on trial, and if found guilty, he is punished accordingly.
The above explains the steps taken by cybercrime investigator to investigate cybercrimes.
it is however worthy to note that, there is no stereotyped techniques of investigating cybercrimes,
hence, the techniques to be used by a cybercrimes investigator depends on what is obtainable in a
particular jurisdiction and the fact and circumstances of each case.

Conclusion

It is no longer news that cybercrimes are the fastest growing crimes in the 21 st century,
this is due specifically to the ease with which they are committed coupled with the anonymous
nature of the internet. As said earlier, the commission of these crimes in Nigeria manifests in
form of “Yahoo Scam”, Fake job advertisement, online banking fraud etc. Although, the
government in its effort to curb cybercrimes has taken some legislative step inform of enacting
the cybercrime Act, netizens, it is however imperative that further steps are taken to ensure the
effective use of the Act, this is because, having a law is one thing, using it effectively is a
different ball game entirely. Also, stakeholders in the ICT industries, government and non-
government organizations must ensure that, the masses are not only informed of the antics
usually deployed by cybercriminals, but also on what step to take if such is directed at them.
Besides, internet users should not provide personal or financial information to others unless there
is a legitimate and assumed reason for that..336
Again, an amendment of the Cybercrime is proposed to make provision for the creation
of the “Cyber Inspector”, who would be an officer, charged with the responsibility of monitoring
online activities, especially that of internet cafes and report any fishy activities detected to the
appropriate law enforcement agency as obtainable in South Africa.337 It is also observed that, the
Cybercrime Act did not make provision for restorative justice for the victims of cybercrimes, it
335

336 Folashade. B., Okeshola, A., and Adeta. K., “The Nature, Causes and Consequences of Cyber Crime in
Tertiary Institutions in Zaria-Kaduna State, Nigeria” American International Journal of Contemporary
Research ,Vol. 3, No. 9, September, 2013, p. 113
84
thus imperative for a provision to inserted in the Act making it possible for the victims of
cybercrimes to recover whatever they might have lose to the cybercriminal in addition to the
later being punished with fine and prison sentenced
Lastly, with regard to cybercrime investigation, Government should make provision for
intensive training of law enforcement agencies on ICT so that they can track down the cyber
criminals no matter how intelligent and cunning they may be. For government agencies, law
enforcement agencies, intelligence agencies and security agencies to fight curb cyber crime, it is
recommended that there is need for them to understand both the technology and the individuals
who engaged in this criminal act.338

Comment(s)

Good piece however, I want the writer to pay attention and effect changes in the following areas

i) The word Cybercrime is either spelt Cybercrime or Cyber-crime

ii) All quotations exceeding four lines be indented. Consult ur research topic material
iii) Consistency should be ensured in the use of the word ICT. Ideally, the full meaning
should precede the acronym
iv) All other suggestions in the body of the work be effected at the writers discretion. The
Editor however believes such suggestion will clear the grey areas noticed in the body
of the work
v) The concluding part of the work includes recommendations. I enjoin the writer to
either write as the heading recommendations and conclusion, or make the
recommendations stand on its own. The advantage of the later is that readers who
chose to glance tru gt better insight into d piece of work.
The publication committee looks forward to receiving a revised copy of the writers
work. Thank you for believing in us.
Alonge Bukola for the committee

337 Section 80 of the South African Electronic Communications and transactions Act of 2002, makes provision for
the appointment of cyber inspector.

338 Folashade. B., Okeshola, A., and Adeta. K., loc.cit., p.113

85
THE LEGALITY OF PLEA BARGAINING IN NIGERIA CRIMINAL
JUSTICE SYSTEM; BY IRINYEMI HOPE TEMITOPE LLB4

ABSTRACT

Plea bargaining is now a global feature in the to administration of criminal justice

all over the world. It has become so popular that nations whose legal system does

86
not recognize the concept of plea bargaining, are now accommodating a form of
plea bargaining into their legal system.

Plea bargaining is a practice in criminal justice whereby the accused is

induced to plead guilty to a charge in return for a lesser sentence or dropping of
some charges or both.

The concept of plea bargaining is a new phenomenon in the Nigeria legal

system. The practice is really gaining ground in the Nigeria criminal justice
process in Lagos state and more especially in the prosecution of financial crimes
undertake by the EFCC. It has been trailed with a lot of controversy. The
Economic and Financial Crimes Commission (EFCC) has recently been applying
the concept to release many corrupt public officers who should have been jailed or
reducing their sentences to only the offences in which the have pleaded guilty to.

This controversy has lead to the question this article intead to answer, whether we
should take a stand for or against the use of plea bargaining or not in our criminal
justice system.

However the legality of this concept is what will determine if it should be adopted
or not.

INTRODUCTION

The term “plea bargaining” is derived from the words “plea” and “bargain”. The
word “plea”

has been defined to mean “an accused persons formal response of “guilty”, “not
guilty”, or no

87
contest to a criminal charge.339 The word “bargain” on the other hand literally
means that act of

negotiating a settlement. According to Black’s law dictionary, it has been defined

as:

A bargain is an agreement parties for the exchange of promise or performance.340

A bargain is broader in meaning than a contract since it does not involve

sufficiency of consideration. A bargain is not applicable to every contract. A plea

bargain is

therefore a sort of a criminal charge. The parties involved in a plea bargain are the
prosecutor

and the defendant/accused person. The Black’s Law Dictionary has defines plea
bargain as:

A negotiated agreement between a prosecutor and a criminal defendant whereby

the defendant pleads guilty to lesser offence or to one or more multiple charges in
exchange for some concession by the prosecutor, usually a more eminent sentence
or a dismissal of the other charges.341

A further definition has been given by the Wikipedia, the free online

339BRYAN A. GARNER (EDITOR IN CHIEF) BLACK’S LAW DICTIONARY 9 TH EDITION (2009 THOMPSON REUTERS)P.
1268

340 Ibid at p.169

341 Ibid at p. 1270

88
Encyclopedia wherein plea bargain was defined as: an agreement in a criminal case
between the prosecutor and the Defendant whereby the defendant agrees to plead
guilty to a particular charge in return for some concession from the prosecutor.342

A common thread running through the above definitions is that the defendant may
plead guilty to a lesser charge or to one of several charges in return for the dumeal
of the other charges or that the defendant will plead guilty to the charge as it is in
return for a more lenient sentence.

The main features noticeable from the foregoing perception of plea bargaining is
that the process is at the discretion of the prosecutor subject however to the
approval of the court where the charges are already before it. Thus, on the basis of
a plea bargain, the prosecutor could decide to withhold the more serious charges.
The defendant could on the basis of a plea bargain plead guilty to a lesser charge in
exchange for the prosecutor’s withdrawal of the more serious charges. Finally,
where a plea bargain is approved by the court, it can hand down a more lenient
sentence in respect of any charge before it.

In summary, the essence of plea bargaining to the defendant is to get

reduced punishment.

HISTORY AND DEVELOPMENT OF THE CONCEPT OF PLEA

BARGAINING

The concept of plea bargain has been traced to the early 19th century when the
adversarial system of adjudication began to rapidly evolve. Plea bargain has its
origin in the United States of America as part of their belief that society is
dynamic, so the law needs to keep up with it. Legal technicalities that accompanied
342 http://en.wikipedia.org/wiki/pleaibargain, P1 of 11

89
the adversarial system of jurisprudence complicated the simple criminal justice
system leading to delays in the dispensation of criminal justice. To secure a
conviction for an otherwise guilty defendant became an uphill task for many
prosecutors. Plea bargaining emerged as a compromise to ensure that criminals
were appropriately punished. It is also founded in the policy of the law to ensure
that such punishment not only serves as deterrent to would be offenders, but would
be in the best interest of society. The practice came about as a potent weapon in
their criminal law jurisprudence.

Plea bargaining being an invention of the American legal process, started by

convention but having been accepted by the courts; it is now entrenched in their
federal and state criminal procedure rules 343, with the State of California even
providing a seven-page form to guide the prosecution and defense in the
formulation of their agreements.344

Plea bargain was first used in the United States of America in the year 1973
when her Vice President, Spiro Agnew, was made to resign on the accounts of
fraud, but was later convicted of his refusal to pay taxes. However, in the 1960’s
the Scholars had begun to shed light on plea bargain but the concept was endorsed
by US Supreme Court and upheld the process in the 1970 case of BRADY v.
UNITED STATES345. The concept was given credence in the case of PERKINS v.
346
COURT OF APPEALS where certain number of safeguards into the bargaining
process was laid down and the court held that:

343 RULE 11, FEDERAL RULES OF CRIMINAL PROCEDURE (UNITED STATES OF AMERICA).

344 FORM CR-101, PLEAFORM WITH EXPLANATIONS AND WAIVER OF RIGHTS-FELONY, JUDICIAL COUNCIL OF
CALIFONIA

345 394 US 742, 90 S.C.T. 1463, 25 L.Ed., 2d 747 (1970)

346 394 US 742, 90 S.C.T. 1463, 25 L.Ed., 2d 747 (1970)

90
i. The promise of a prosecutor made during plea negotiations must be
kept.

ii. To be valid, a guilty plea had to be made voluntary and with full
knowledge of its implications.

The concept of plea bargaining in the recent times was introduced via The
Criminal Law (Amendment) Act, 2005347

According to J.A Agba in his book,348to have a plea bargain,there must be:

1. A prosecutor and an accused person

2. A negotiation between the prosecutor and the accused person.
3. A negotiation which must have ended in agreement with concessions and
compromise from the prosecutor and the accused
4. The involvement of the court , and
5. An acceptance of the plea by the court.

The Emergence of Plea Bargaining in the Nigeria Legal System

Plea bargain has never been part of the Nigerian legal system 349. The origin of plea
bargaining in Nigeria could be traced to 2005 when it was first used by the
Economic and Financial Crime Commission (EFCC) in the trial of the former
Inspector-General of Police, Tafa Balogun the former Inspector General of police
and later in the case of Diepreye Alamieyeseigha, the ex-Governor of Bayelsa
State. It has also been subsequently used in a number of other high profile official
corruption and banking fraud cases. In Nigeria, plea bargaining is usually

347 Chapter XXIA of Code of Criminal Procedure.

348 Practcal approach to Criminal Litgaton in Nigeria (pre-trial and trial proceedings)at pg. 589 to 590

349 This point was eloquently made by the Former Chief Justce of Nigeria, Hon. Justce Dahiru Metaphor(2012).
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employed in the trial of financial crime cases by making it part of the negotiation
for the accused person to surrender some portion of money which he has
embezzled and for which he is being tried. This is why some have described it as
“celebrity justice”.350

Before the passage of the Administration of Criminal justice Act, the legal
provisions supporting the application of plea bargaining were section 14(2) of the
EFCC Act, section 72 of the Administration of Criminal Justice Law of Lagos
State, section 167 Anambra State Administration of Criminal Justice Law of 2010
and 339 of the Criminal Procedure Code Act Cap. 491 laws of the Federation of
351
Nigeria, 1990 .It was the Economic and Financial Crimes Commission
(Establishment) Act No. 1 of 2004 that first established the procedure as a
possibility in Nigeria.

However, only Nigerian legislation that specifically mentions plea bargaining is

the Lagos State Administration of Criminal Justice Law, 2007. Section 75 of this
law provides:

“Notwithstanding anything in this law or any other law, the Attorney-General of

the State shall have power to consider and accept a plea bargain from a person
charged with any offence where the Attorney-General is of the view that the
acceptance of such plea bargain is in the public interest, the interest of justice and
the need to prevent abuse of legal process”.

It would be of interest to also note that some other legislation provide for a process
akin, though this is debatable, to the concept of plea bargaining. This is found in

350 www.thwlawyerschronicle.com/plea-bargaining-in-nigeria-any-legal-foundaton/

351 http://punching.com/practce-procedure-pla-bargain-acj-act/
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the Criminal Procedure Act and the Economic and Financial Crime Commission
(EFCC) Act, 2004.

Section 180(1) of the Criminal Procedure Act provides that:

“When more charges than one are made against a person and a conviction has been
had on one or more of them the prosecutor may, with the consent of the court,
withdraw the remaining charge or charges or the court, of its own motion, may stay
the trial of such charge or charges”.

Section 14(2) of the EFCC Act, 2004, on the other hand, states as follows:

“Subject to the provision of section 174 of the Constitution of the Federal Republic
of Nigeria, 1999 (which relates to the power of the Attorney-General of the
Federation to institute, continue or discontinue criminal proceedings against any
persons in any court of law), the Commission may compound any offence
punishable under this Act by accepting such sums of money as it thinks fit, not
exceeding the amount of the maximum fine to which that person would have been
liable if he had been convicted of that offence”.

Other beneficiaries of plea bargaining in Nigeria include, the former Chief of

Executive Officer of Oceanic Bank International Nigeria PLC, Mrs. Cecilia Ibru on
October 8, 2010. She was charged with a 25 count criminal crimes. However she
pleaded guilty to a lesser 3 count charge. The court therefore convicted Ibru of the
three count charges .

ADVANTAGES OF PLEA BARGAINING

Despite all of this challenges, plea bargain principle is no doubt becoming one of
the most useful means of quick disposal of criminal trials the world over. Its
applicability in Nigeria will certainly have positive impacts amidst the criticisms.
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In FEDERAL REPUBLIC OF NIGERIA V.LUCKY IGBINEDION 352 The Court
of Appeal per Ogunwumiju, J.C.A. stated the advantages of plea bargain 353 as
follows: “The advantages of plea bargain include:

Accused can avoid the time and cost of defending himself at trial, the risk of
harsher punishment, and the publicity the trial will involve.

The prosecution saves time and expense of a lengthy trial.

Both sides are spared the uncertainty of going to trial.

The court system is saved the burden of conducting a trial on every crime
charged.”

In explaining the following advantages of plea bargain as identified by

Ogunwumiju, J.C.A. above, we have;

Cost of trial for both the Accused and the Prosecution;

One of the advantages of plea bargain practice is that it saves both parties of the
cost of prosecuting and defending the case in court. This is regarded as one of the
fundamental advantages of Alternative Dispute Resolution in civil actions over
litigation.

Length of trial;

As we all know, trials in Nigeria usually take a considerable length of time. Also,
when the rulings or judgments of the trial courts are appealed against, it takes a far
longer time. For instance, where the outcome of a matter is appealed against up to
the Supreme Court, it could last as long as 11 years or more from the trial court to

352 (2014) LPELR – 22760 (CA)

353 @ pages 75-76

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the ultimate verdict by the apex court. during this period, there is every likelihood
that the Accused will be remanded in prison custody which would have been
avoided in a situation where a plea bargain arrangement is made.

Uncertainty of trial;

Both parties, that is the prosecutor and the defence are spared of the uncertainty
that is associated with trials. The plea bargain practice also has the advantage of
avoiding a situation where an innocent man is convicted on a crime he may not
have committed since the outcome of a case is uncertain as the judge has the final
powers to deliver a verdict on the evidence presented before it. It is not therefore
outside the realm of possibilities that an innocent person is convicted of a crime for
any reason, maybe due to the ineptitude of its counsel or the failure of the judge to
have a full and perfect grasp of the case before it. Lessened burden of conducting
trials on every crime charged. Where the state decides to prosecute every offence
as alleged, the courts will be greatly overburdened. This would greatly hamper the
efficiency of the judiciary in the discharge of its constitutional role.

Despite these obvious merits of the plea bargain, it is not devoid of its
shortcomings. A very fundamental defect of the process is that though the state has
the powers to prosecute, where there is a crime against a person (the victim), such
a victim may not feel that justice has been done in his case where the court accepts
the plea bargain of the defendant. Also, it is increasingly the norm in Nigeria that
only the rich can assess justice. This is because they can buy their way through and
afford any penalty levied against them unlike the poor who are left to their fate to
languish in prison.

THE USE OF PLEA BARGAIN IN OUR STATUTE AND THE CONCEPT OF

LEGALITY IN NIGERIA
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According to the Black’s law dictionary, Legality means “strict adherence to the
law, prescription, or doctrine; the quality of being legal”. 354

Legal means to be “established, required or being permitted by law”355.

The concept of legality requires that a thing be provided for expressly in the law,
this is required especially when it relates to criminal matters, instead of being a
product of implication or inherence.

Some persons and scholars have claimed that the practice of plea bargain is illegal
and alien to the statutes of criminal justice in Nigeria. Last November, the Chief
Justice of Nigeria, the Honourable Justice Dahiru Musdapher, lent his voice to the
criticism of the plea bargain practice at the fifth annual general conference of the
Section on Legal Practice of the Nigerian Bar Association (NBA), held in Abuja in
November 2011, and said of it: “plea bargaining is a novel concept of dubious
origin. It has no place in our law – substantive or procedural.” 356 His speech, led to
the writing of many newspaper articles with headings which gave the impression
that the Chief Justice of Nigeria had banned the use of plea bargain- perhaps that
might have been his implied meaning or intention. At any rate his words as
reported were: “it should never again be mentioned in our jurisprudence.”357

A close study of Justice Musdapher’s speech however, will make us know or

understand just what caused his indignation; His Lordship apart from stating in
broad and sweeping terms that plea bargaining was unknown to our law and by
implication illegal, was in fact complaining about the same thing as many other

354 Black’s law dictonary 9th editon(BRYAN A. GARNER, EDITOR IN CHIEF) Pg.977

355 Black’s law dictonary 9th editon(BRYAN A. GARNER, EDITOR IN CHIEF) Pg. 975

356 The Nigeria Tribunal of 16 November 2011

357 Ibid.
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Nigerians to wit358: the use of plea bargain for only the rich and powerful in
society. As reported by the Tribune he said;

“It was invented to provide (a) soft landing to high-profile criminals who loot the
treasury entrusted to them. It is an obstacle to our fight against corruption.”359

On Monday February 5th 2012, Justice Musdapher reiterated and defended his
position on plea bargain at a workshop for judicial correspondents, referring to
what he described as:

“The sneaky motive behind its introduction into our legal system, or its evident
fraudulent application.”360 He went on to say:

“You will see also that plea bargain is not only a flagrant subordination of the
public’s interest to the interest of ‘criminal justice administration’, but worst of all,
the concept generally promotes a cynical view of the entire legal system.”361

Therefore, in agreement with Chief Justice Musdapher, and at the risk of being
accused of legalism, it is important to point out that no federal statute provides
expressly for plea bargain and even those statutes whose meanings are held to
imply provisions for plea bargain are really not phrased in a manner so as to lend
themselves to liberal interpretations and stretched meanings. Therefore the legality
of the use of plea bargain in Nigeria is very much in question. As stated much
earlier it appears that only the Lagos State Administration of Criminal Justice Law
2007 provides for plea bargain:

358 Topebayollp.wordpress.com/2012/03/27/the legality of the use of plea bargain in the Nigerian criminal justce
system

359 The Nigeria tribunal of November 2011

360 Vanguard Newspaper of 6 march 2012

361 ibid
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“Notwithstanding anything in this law or any other law, the Attorney-General of
the State shall have power to consider and accept a plea bargain from a person
charged with any offence where the Attorney-General is of the view that the
acceptance of such plea bargain is in the public interest, the interest of justice and
the need to prevent abuse of legal process.”362

In view of the fact that under our federal system, various States have power to
enact laws relevant to their needs and purposes, the Lagos State government has
within the limits of its right enacted a law and any other state which wishes to do
same is permitted to, the Federal Government as well.

Until there are laws which expressly provide for the use of plea bargain in all
criminal cases, in the entire Nigeria or at least in the states that are interested, the
practice should not be adopted or used in federal cases as it has no basis in
Nigerian federal law.

The Applicability of Plea Bargaining

In Nigeria, under the Constitution, an accused person is presumed innocent until

proven guilty.363 This presumption of innocence can only be rebutted by the
prosecution and this is achieved when the prosecution is able to satisfactorily
discharge the legal burden on it to prove its case against the accused person beyond
reasonable doubt by virtue of Section 135(1),(2) and (3) of the Evidence Act 364 .
Section 1(1) of the Constitution365 declares its supremacy over all authorities and
persons throughout the Federal Republic of Nigeria. Equally, Section 1(3) provides

362 Secton 76 of Administraton of Criminal Justce Law (2007) of Lagos state

363 Secton 36 of the 1999 consttuton of the Federal Repubic of Nigeria

364 2011

365 1999 consttuton of the Federal Republic of Nigeria as amended

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366
: “If any other law is inconsistent with the provisions of this constitution, this
constitution shall prevail, and that other law shall to the extent of the inconsistency
be void.”

The plea bargain is a fundamental concept, which any state which desires to make
it a part of its criminal justice system should incorporate into its constitution to
give it the necessary force. In the absence of any clear provision under the
Constitution of Nigeria, the applicability of plea bargain is certainly contrary to the
provisions of the Constitution.

The Criminal Procedure Code (CPC) and the Criminal Procedure Act (CPA)
applicable in the Northern and Southern parts of Nigeria respectively (with the
exception of Lagos State by reason of its enacted ACJL), regulate the conduct of
trials and has a lot of provisions governing criminal trials and in all these statutes,
there is no indication of the existence or applicability of the plea bargain principle.

There are very limited authorities in Nigeria on the applicability of plea bargain in
Nigeria even though the cases in which the concept has been explored continues to
be on the rise.

While plea bargain has been practised with ease in the United States, its
applicability in Nigeria cannot be hitch free. This is because of the nature of the
Nigerian criminal justice system which is adversarial and which places a judge as
an unbiased umpire who sits in the temple of justice to evaluate the evidence
presented before it by the parties.367

366 ibid

367 www.matrixsolicitor.com/artcles.ohp?id=13
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In LEADERS & CO. LTD V. BAMAIYI 368 PARAS A-B Fabiyi, J.S.C. held that a
judge is an adjudicator; not an investigator.

Except in exceptional cases where the provision of the law states otherwise,when
an accused person voluntarily confesses to the commission of an offence, the
prosecution at all times has a duty to prove the guilt of the accused beyond
reasonable doubt before it can secure a conviction. Most often than not, the issue
of voluntariness of the confessional statement, come to play at trial and even on
appeals to the appeal courts. As much as confessional statement raises the issue of
voluntariness, the practice of plea bargain in Nigeria is also likely to raise issues of
voluntariness of the agreement369.

Another very fundamental problem the plea bargain practice is likely to bring to
the Nigerian criminal justice system is the tendency for abuse of the process by the
authorities especially the Attorney-General who already wields enormous powers
in criminal administration. This is because the form of the plea bargain in Nigeria
as modelled by Lagos State vests the power to accept plea bargain in the Attorney-
General. Already, there are several calls for the powers of the Attorney-General to
be reduced possibly by the splitting of the office and functions into two, viz - the
Attorney-General (being an officer of the state) on one hand, and the
Minister/Commissioner for justice (being an appointee of the executive) on the
other. This is aimed at reducing the influence and interference by the executive
with the discharge of the functions of the office of the Attorney-General.

368 (2010) 18 N.W.L.R. (Pt. 1225) 329, 340

369 ibid
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CONCLUSION

It is a well known fact that plea bargain practice will do a lot of positive things to
the Nigeria Criminal Justice System by helping to fight corruption and attending to
critical issues before a trial court without delay. According to Honourable Justice
Morki (JSC) in the case of ALTIMATE INVESTMENT LTD V. CASTLE &
CUBIICLE LTD370 where he said

“it is important to mention that this is a time when the Nigerian nation is fighting
the difficult battle against corruption in all ramifications. All hands should be on
deck to eliminate or eradicate this social ill. Corruption or corrupt practices, if not
checked, threaten the peace, order and good government”.

Plea bargain is one of the avenue of fighting corruption so therefore, it should be

incorporated into the Nigeria Constitution to have more force. As stated earlier, the
legality of a thing in Nigeria is not based on the practice of other countries or
importation of alien conventions, but on our own well founded laws.

370 (2000), ALLFWLR PT.117 AT P.151-152

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SECTION B
POETRY

THE DIVORCEES' ALIMONY- TAIWO BALOGUN

On the ship of goodwill and tranquillity

He steers, with valuables and riches
Our heart he seduced and stole
The obdurate he uterly vanquished

With cane and carrots he sets

For the non-consensual matrimony
A union with three damsels
And thousands of minors

For decades they basked in its euphoria

An ephemeral union owing to his afeccons
And all in solitary Steven
Clamoured for the inevitable parccon

The alimony, bond in-diference

An unrestricted right of all
To fetch from the well of afuence
And the forest to plough

A head by majority
They gleefully consented to
From the well they incessantly fetched
And the felds they refused to curricate

From their wells we fetch for centuries

But the mantle, we gave them not
Deplecng the rich wife’s abode
Causing their progenitor to stand by Aburi
Their clamour all but feasible

For our deed can, but be compromised

A non negocable alimony

102
For to dependency we swore
All separacst obstreperous a fucle
The only means, the wives hegemony
Over their own properces.

BARLOWH © 2017

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