Category: Opinions

Director of SSS V. Agbakoba

A Review of Director of  S.S.S. V. Agbakoba
The Supreme Court is the highest court in Nigeria. Being the highest court in the land its decisions are final. The finality of its decision is given constitutional expression in Section 235 of the Constitution of the Federal Republic of Nigeria 1999 which provides that:
“235. Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any other body or person from any determination of the Supreme Court.”(1)
Judicial expression has also been given to the finality of the decision of the Court in the case of Architects Registration Council V. Fassassi (NO. 4) (2) where ESO J.S.C said:(3) “In the Supreme Court, the decision of that Court in so far as that case is concerned is final for all ages…it is final in the sense of real finality. It is final forever. Only a legislation ad hominen can alter it.”
But does the fact of the finality of the decisions of the Supreme Court make the Justices of the Court super men who are infallible in the decision which they give? The late doyen of the Bar, Chief F.R.A Williams, S.A.N was the first to throw up this question when he was faced with a decision of the Court which he believed was wrong and therefore brought an application seeking a “Correction” of the perceived errors in the Judgment ESO J.S.C. gave a qualified affirmative answer to the question. He said:

“…the decision of the Supreme Court is final.

The Supreme Court, and it is only the Supreme Court, may depart from the principle laid down in their decision in the case in future cases, but that does not alter the rights, privileges or detriment to the parties concerned, arising from the original case. Such is the constitutional power of the Supreme Court that learned counsel, probably rightly, wondered if the Justices of the Supreme Court were supermen. Let me answer the question. The Supreme Court, deliberately meant and made to be so by the organic law, and the Justices of the court, now only to that extent of their decision are supermen, meant to be so and so made by the constitution”(5)
His Lordship, after making the tendentious statement contained in the passage quoted above then conceded the fallibility of the court when he said:(6)
“Of course, neither the Court nor the Justices are meant to, or could even be infallible. But the price paid for finality in litigation is that the notion or the dread of infallibility has been sacrificed by the Constitution on the altar of finality. The society can never be stable if there is no such finality in litigation. It is, I very respectfully hold, desirable to have such finality. Notwithstanding the price paid for it.”

Before we make any deductions from the statements contained in the passages quoted above it will be useful to make a quick reference to the provision of Section 287 (1) of the Constitution which provides that:
“The decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court”.

Three points appear in bold relief from the passages and constitutional provisions quoted above. These are that:
(a) The Supreme Court being the final court in the land ought or is expected to lay down principles of law in their decisions which would guide future cases.
(b) The decisions of the court are binding on all authorities and persons and courts with subordinate jurisdiction to that of the court, and
(c) The principles laid down by the Supreme Court in its decisions can only be altered by a legislation ad hominen and by the Supreme Court itself in future cases.
In the present exercise of “case review”, a critical look would be taken at the decision of the Supreme Court in the case of Director of State Security Service V. Olisa Agbakoba with a view to seeing whether any specific principle or principles were laid down by the court which inclined the Judgment of the court to the conclusion reached in the case. Before we go into the review, let us briefly examine the definition of ‘principles of law’ as given by the Supreme Court. Thus in Ojegele V. State, (7) Oputa J.S.C, whilst discussing the distinction between ‘Principles’ and ‘Rules’ said:

“Principles are broader statements of conduct and they do not necessarily decide the outcome of the dispute. They merely incline the decision one way or the other depending on the facts and surrounding circumstances of the case in hand. The word principle is from the Latin principium, which means the starting point. A principle merely furnishes a basis for the consideration of the case in which the principle is meant to apply. Principles merely incline the decision towards a certain direction but they are not conclusive and they survive intact even if the principles are not followed in that particular case. Rules apply in an all-or-nothing dimension. Either the decision falls within the ambit of the antecedent portion of the rule in which case it must be dealt with as the rule dictated or it does not in which case it is unaffected by the rule. Rules dictate results come what may but principles do not. And that is the main difference to bear in mind when dealing with principles.”

The foregoing definition of ‘principle’ would be used as a guide in the review of the case to be reviewed herein, that is, Director of State Security Service V. Olisa Agbakoba (9) The relevant facts are these. The Respondent, Olisa Agbakoba, was invited by the Netherlands Organization for International Development and Cooperation (NOVIB) to attend a conference which was scheduled to take place between 22nd and 25th April, 1992. On 21st April, 1992, he went to Murtala Muhammed International Airport, at Ikeja Lagos with a view to traveling to The Hague in the Netherlands. However, he could not board the plane because he was stopped by officers of the Nigerian State Security Service (SSS) who impounded his passport without giving any reason for the seizure. After fruitless efforts to regain the passport, the Respondent instituted a suit under the Fundamental Rights (Enforcement Procedure) Rules seeking inter alia:

“1. A Declaration that the forceful seizure of the applicant’s passport No. A 654141 by agents of the State Security Services (Sic) (1st Respondent herein) on April 21, 1992 is a gross violation of the applicant’s right to personal liberty, freedom of thought, freedom of expression and freedom of movement respectively guaranteed under Section 32, 35, 36 and 38 of the Constitution of the Federal Republic of Nigeria 1979 (as amended) and is accordingly unconstitutional and illegal.
2. An order of mandatory injunction directing the respondents to release applicant’s passport No. A 654141 to him forthwith.”

The application which was filed in the High Court of Lagos State went before Akinboboye J. who refused it on the ground that the Respondent failed to satisfy the court that the passport was his personal property, and that the passport referred to the holder as “the bearer” and not “the owner”. Aggrieved by the decision, the Respondent appealed to the Court of Appeal which allowed the appeal and granted the two reliefs earlier set out. Being dissatisfied with the Judgment, the Appellants appealed to the Supreme Court. The important issue which the court has to determine in the case was whether the seizure of the Respondent’s passport by officers of the S.S.S. was in contravention of his right to freedom of movement as guaranteed by Section 38 (1) of the 1979 Constitution which was then in force in Nigeria. In determining this issue the court necessarily had to decide whether possession of a passport is a right or a mere privilege which could be withdrawn by the Government in view of the decision of the trial court that the Respondent did not satisfy it that the passport was his personal property. At the Court of Appeal, Ayoola J.C.A (as he then was) who delivered the leading Judgment of that court had this to say on the point:

“In so far as passport is a certificate of identity and nationality and at the same time a request from one state to another to grant entry to the bearer, it stands to reason that a passport is normally an essential document in the exercise of the discretion by a foreign state, which at International law it has in the reception of aliens into its territory. To that extent a passport is normally an essential document for entry into foreign countries….I also hold that the possession of a passport in modern times makes exit out of Nigeria possible … the issue that follows from this conclusion is whether the possession of a passport or its withdrawal has any relevance to the constitutionally guaranteed freedom of movement, including the right of exit from Nigeria, with which this case is directly concerned….it can thus be seen that while the seizure of passport by a government agency such as the 1st Respondent can be interpreted as a direct expression of refusal of exit to the citizen, it is also a potent curb on the desire of the citizen to travel abroad and an evident clog on the exercise of his right of freedom of movement.”

Thus in the view of His Lordship there is a conflict in the statement endorsed on Nigerian Passports that the Passport remains the property of the Government of the Federal Republic of Nigeria and the right which accrues to every citizen to hold such a Passport. The consequence of a passport being the property of the Government is, according to His Lordship, that the holder cannot deal with it as he pleased. He cannot transfer, sell or otherwise dispose of it. If for instance he ceases to be a citizen of Nigeria, he has an obligation, if requested, to return it to the ‘owner’, and the Nigerian Government as the owner of the passport has a right to recover the passport from anyone else who is not entitled to hold it. His Lordship then concluded that:

“The freedom of exit guaranteed by our constitution cannot be exercised without a passport and that freedom enshrined in Section 38 (1) of the Constitution carries with it a Concomitant right of every Citizen of Nigeria to a passport.”

Although the Judgment of the Court of Appeal that the seizure of the Respondent’s Passport amounted to a violation of his right to travel abroad guaranteed by Section 38 (1) of the Constitution was upheld by the Supreme Court, the leading Judgment of the apex court delivered by UWAIS C.J.N walked through a different route to arrive at the same answer. At page 352 of the report UWAIS, C.J.N said:

“In determining the issues in the present case, it is not, with respect, necessary to indulge in the academic exercise of whether the right to travel abroad is concomitant with the right to hold a passport. The real issue in contention here is not whether the respondent had a right to hold a passport. He in fact had a passport already but which was impounded by an official of the SSS. It is whether such an act by the official was legal and constitutional.”

After an exhaustive review of the arguments of Counsel in the case and the passage in the Judgment of the Court of Appeal quoted above, the C.J.N concluded that the official of the SSS concerned in the case had no power to impound or withdraw the Respondent’s passport in the manner he did. The impounding was, illegal since it offended the provisions of Section 38 Subsection (1) of the Constitution and Section 5 Subsection 1 of the passport (Miscellaneous Provisions) Act. The right to have freedom of movement and the freedom to travel outside Nigeria is, according to His Lordship, guaranteed by the Constitution but the right to hold a passport is subject to the provisions of the Act. Although the leading Judgment of the court considered the question whether the right to travel abroad was concomitant with the right to hold a passport as posited by the Court of Appeal to be an academic exercise for the purpose of the case, the concurring Judgments of Ogundare, Ogwuegbu, and ONU, JJ.S.C agreed with the Court of Appeal (per Ayoola, J.C.A as he then was) that the right to hold a passport is concomitant with the guaranteed right to travel abroad. Thus, to the extent that only three out of the seven Justices of the court that sat on the case agreed with the Court of Appeal on this point, the view that the right to hold a passport is concomitant with the right of exit from Nigeria which was guaranteed by Section 38 (1) of the 1979 Constitution (now Section 41(1) of the 1999 Constitution) was an obiter dictum.

It is respectfully submitted that the minority approach to the resolution of the issue at stake in the case is preferable. Although it is true, as has been said in the leading Judgment of the Supreme Court, that the Respondent had a Passport already but that fact cannot, without more, diminish the importance of the need to make a pronouncement on the right to hold a passport in a case of this nature. It is from such a pronouncement that the principle would emerge which would furnish the basis for the consideration of the facts of the case. As OPUTA, JSC put it in Ojegele V. The State (II), principles are broader statements of conduct and they do not necessarily decide the outcome of the dispute. They merely incline the decision one way or the other depending on the facts and surrounding circumstances of the case in hand.

As has been shown earlier, both the Supreme Court and the Court of Appeal arrived at the same decision that the seizure of the Respondent’s Passport was in contravention of Section 38 (1) of the 1979 Constitution and therefore was unconstitutional, however, no principle can, with respect, be deduced from the leading Judgment of the Supreme Court which could be said to have inclined the decision towards the direction of the conclusion arrived at in the case. The provisions of the Passport (Miscellaneous Provisions) Act which formed the main plank of the leading Judgment of the court cannot be construed in vacuo or in isolation of other issues which arose from the contentious positions taken by the opposing sides in the case. The Act deals specifically with the power of the Minister of Internal Affairs to cancel, or withdraw any passport issued to any person. The Act did not however provide that the power of cancellation or withdrawal which was vested in the Minister shall be exclusive of other general power of cancellation or withdrawal which the Federal Government, the avowed “owner” of the passport or any of its other agencies, may wish to exercise. It is this latter fact that, in our view, justifies the consideration of the question whether the Federal Government or any of its agencies, to wit, the State Security Service, can in exercise of its general right of “ownership” of the passport issued to a citizen withdraw same from the ‘bearer’ of it. A pronouncement made by the court on such a point, cannot, with respect, be said to be academic.

Conclusion:

From the analysis of the entire Judgment in Agbakoba’s case, it can safely be concluded that the case would be a good authority for the following proposition; that is:
(a) The right to travel outside Nigeria is constitutionally protected.
(b) The right to hold a Passport is not absolute as it is subject to the provisions of the Passport (Miscellaneous Provisions) Act which empowers, in its Section 5, the Minister of Internal Affairs to, at any time, cancel or withdraw any passport issued to any person if:

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(a) The passport is obtained by fraud;
(b) The passport has expired;
(c) A person unlawfully holds more than one passport at the same time;
(d) It is in the public interest so to do.
The obiter dictum that possession of a passport is concomitant with the guaranteed right of exit from Nigeria would appear to provide a persuasive authority for the proposition that a Citizen of Nigeria who has been denied the issuance of a standard Nigerian Passport can compel its issuance if he desires to travel abroad. The argument in such a case would be that the right to exit from Nigeria which is constitutionally protected by Section 41 (1) of the 1999 Constitution carries along with it a concomitant right to hold a passport and that Section 5 of the Passport (Miscellaneous Provisions) Act even though it authorizes the withdrawal of a passport subject to certain conditions does not authorize the refusal to issue one in the first instance.

Notes
1. See Section 235 of the Constitution of the Federal Republic of Nigeria 1999.
2. (1987) 3 NWLR (Part 59) 42
3. Ibid at page 46.
4. Adigun V. Attorney-General of Oyo State No. 2 (1987) 2 NWLR (Part 56) 197.
5. Ibid at page 215
6. Ibid at page 215
7. (1988) 1 NWLR (Part 71) 414
8. Ibid at page 423
9. (1999) 3 NWLR (Part 595) 314
10. Agbakoba V. Director, SSS (1994) 6 NWLR (PT. 351) 475
11. Supra at 423

ABOUT THE AUTHOR: Tayo Oyetibo, SAN
Tayo Oyetibo is Chief Counsel at the law firm of Tayo Oyetibo & Co.

 

Proposed Industrial Property Commission Bill Reduces Duration of Trademarks from 14 Years to 7 Years – Nigeria

By section 23 of the Trademarks Act, CAP T13 Laws of the Federation of Nigeria, the registration of a trademark shall be for a period of seven years in the first instance. However the registration may be renewed from time to time. Upon application by a proprietor, the registrar may renew the registration of the trademark for a further period of fourteen (14) years from the date of the expiration of the original registration or of the last renewal of registration.

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However, the Industrial Property bill in section 51 provides that the registrar shall on application made by the proprietor of a trademark in the prescribed manner and within the prescribed period, renew the registration of the trademark for a period of seven (7) years from the date of expiration of the original registration or of the last renewal of registration.

The procedure under the bill is for the Registrar to send notice to the proprietor at a prescribed time before the expiration of the last registration of a trademark, the notice shall also state the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained.

Where the conditions are not complied with before the expiration of the prescribed time, the registrar may remove the trademark from the register and also state the conditions for its restoration.

A trademark removed from the register for nonpayment of the renewal fee shall for the purposes of any application for the registration of a trademark, be deemed to be a trademark that is already on the register.

In practice, trademarks due for renewal but which are not renewed are hardly removed from the trademark register. Apparently, this is a result of the registrar’s failure to send the notice require under the trademarks Act. The practice is that the registrar would renew the trademark once the payment for late renewal as well as payment for the present renewal is made.

ABOUT THE AUTHOR:

Ms. Chinwe Uwakwe Blackfriars LLP is a first class Nigerian law firm with special expertise in trademarks registration and and patents prosecution, commercial Litigation, energy law, and capital markets transactions, respectively. A fundamental principle underpinning our success is our unshakeable conviction that the practice of law is a privilege that carries with it the solemn responsibility to apply our talents for the benefit  of  our clients.
Copyright Blackfriars LLP

Why Nigeria Police relish parading suspects

Section 36 of the Constitution of the Federal Republic of Nigeria, Article 7 of the African Charter on Human and Peoples’ Rights, as well as a plethora of High Court rulings deprecating the act of parading suspects before trial are as clear as daylight on the protection given to the principle of fair hearing and the presumption of innocence of the accused.

The Nigeria Police on the other hand, are equally as blatant and downright nonchalant in their disregard of these constitutional safeguards for the citizen.

On this fundamental issue of principle and sanctity of the Nigerian justice system, the police beg to differ; they regularly poke a finger in the eye of the law, placing themselves high above the law in this regard, while damning the consequences. What makes this more alarming from this column’s standpoint is the seeming acquiescence of society at large about it.

Our lawmakers and the executive branch of government are indifferent, civil society groups respond to it with inertia and the public feel pretty jaded about it all, seeing it as amusing and a piece of theatre to savour. The only people who feel burdened enough to highlight this odious element of our justice system in the media appear to be the odd individual and personalities with prescience and a weight to throw around. Why?

The answer to the above puzzle is traceable to the village-square mindset of the pre-colonial era that still permeates the Nigeria Police thinking in the modern era. In that frictionless communard populated by people aligned to a deep sense of right and wrong, where the sin of the father is usually visited on the sons, daughters and siblings of the wrongdoer, naming and shaming becomes a most potent tool in the hands of those entrusted with the responsibility of enforcing community rules. The mere mentioning of a person’s name and the commission of a criminal act in the same sentence carry such opprobrium that the person so-named is shunned by the rest of the community, and is tainted for life thereafter. In the village square, one man’s fortune is everybody’s fortune.

Conversely, one man’s misdemeanour is everybody’s cross to bear. The village-square mentality is a relic of a bygone order in a bygone culture where the individual is the community, and community the individual. We, nonetheless, and irrespective of the techno drama of the modern life, remain very much by-products of that tradition.

A more utilitarian explanation for the inexcusable police violation of the law in parading suspects is convenience and resources. The police are simply overwhelmed with levels of criminality in society, and little or no incentive for them to do a thorough job of investigating, especially amidst dwindling resources. It is a matter of interest to us in Africa to note that in the West, sometimes, authorities can spend $1m to investigate and convict a theft of $100,000.

For them, the end always justifies the means. The greater good and health of society require that no sum is spared in the investigation and punishment of offenders. Here on the continent of Africa, we have yet to arrive at that level of sophisticated administration of justice. What we have, instead, is the law enforcement officers doing what appears to be their ‘best’ to curtail crime and criminality by harping on the naming and shaming logic of a by-gone age. It appears that the razzmatazz of parading suspects on TV and other media is an end in itself for the police; a wink to the public for marks for effort.

Linked to the question of resources is the police desire to promote deterrence by parading suspects. It is a cheaper and quicker way of achieving that it seems. What baffles right-thinking citizens in this country, however, is that every police recruit ought to know that the mere fact of parading someone in public undermines their right to fair hearing. There is no smoke without fire, a lot of people would conclude, which also undermines the presumption of innocence until proved guilty in a court of law.

Parading of suspects in Western jurisdiction is anathema to their notion of justice, and would not be countenanced in any way. The main reason for this being that, there is a jury trial embedded in their system, which is absent in ours. Jury trial is a process by which 12 people randomly selected from the public where a crime is committed, sit in court, hear the evidence against the accused, and are then asked to pronounce on the person’s guilt or innocence following a direction on the law from the judge. This is standard practice in most Western jurisdictions.

By contrast, we do not have jury trial in our jurisdiction. A judge sitting alone usually hears the evidence against the accused and pronounce on guilt or innocence after lawyers on both sides have presented their arguments. We do not have jury trial in our jurisdiction for all sorts of reasons, chief among which is the problem of mass illiteracy, and inadequate database of citizens up and down the country. These anomalies are not insurmountable, but, they are needed to be rectified first, to make jury selection truly neutral and random as it operates elsewhere. The argument runs then, that, under our system, trial by media has a minimal effect, since there is no jury to influence. Judges cannot be influenced by the media. Or, can they?

Let us swiftly disabuse the mind of the reader by saying that notwithstanding their antiquarian wigs and gowns, judges are products of the same society which has given them the authority to sit in judgement of others. They too feel what others feel when confronted with the allusion of guilt on the face of a suspect being paraded in the media by police. That said, they, (the judges), ultimately hold the key to resolving this malaise once and for all. Every case brought in front of a judge where the accused is found to have been paraded beforehand ought to be dead on arrival.

A police parade of a suspect should be enough to disable a subsequent trial in a court of law in this country, as it is fundamentally prejudicial to a fair hearing. So, no more endless judicial pronouncements on the need to stop the parade of suspects, no more point excoriating senior police officers for parading suspects when, based on the foregoing, the case against the accused is bound to be thrown out later by a judge. No more need to start waging a rear-guard effort endlessly suing the police. We need a hero amongst the judges, we need one ready to put his head above the parapet; one who would, ab initio, treat a case of police parade of a suspect as a jurisdictional issue. It should rank as a solid foundation for a preliminary objection which can be raised at anytime during the proceedings.

Once established, the judge does no more than throw out the case against the accused who had been paraded hitherto. Let the prosecution appeal against the decision to the Supreme Court, from here until Kingdom come. That would teach them. Above all, it would cut off the head of the marauding snake called police parade of suspects in this country by rendering it a futile exercise.

HIV prevention failing among young women

As curtains fell on what has been a landmark scientific conference on the prevention, care and treatment of HIV in September, it was clear that there are many strides made in the right direction.
Notably, the national adult HIV prevalence has been on a steady decline in the last seven years.
According to the National AIDS and STI Control Programme (NASCOP) “annual new infections are less than a third of what they were in 1993” when the epidemic was at its strongest.
There are now better anti-retroviral regimens that are accessible and consequently, more people on treatment inspiring experts to declare that the country may be on its last mile towards achieving the 95-95-95 dream.
This is essentially a fast track plan to halt the spread of HIV by 2020 and eventually end the epidemic by 2030.
Initially dubbed the 90-90-90 Aids Eradication Strategy, the goal is to have 90 percent of people living with HIV tested, 90 percent of those diagnosed with HIV put on treatment and 90 percent of those on treatment achieving durable viral suppression.
Based on advances in the treatment and care of HIV, experts are now aiming for 95-95-95.
Nonetheless, experts are alarmed that this success story has been clouded by failure to prevent new infections among young women aged between 15 and 24 years.
“When you talk about new HIV infections, there are people who are negative today and HIV positive tomorrow. Young people account for about half of these new infections and these are worrying statistics,” said Anthony Chazara, Youth Programme officer at LVCT Health.
Dr Lillian Njagi from Kenyatta National Hospital concurs: “More than half of all new HIV infections occurred among adolescents and young people aged 15 to 24 years which is a sharp rise from 29 percent in 2013.”
According to NASCOP’s latest estimates, 1.5 million people are living with HIV with youth accounting for 280,000 of the numbers.
Speaking at the conference, Njagi was particularly concerned that young women continue to be disproportionally affected by HIV.
Across Africa, HIV infections among young women are double or triple those of their male peers.
“In Kenya, young women are almost twice as likely to acquire HIV compared to young men,” Njagi emphasised.
Due to their vulnerability to HIV, young women of ages 15 to 24 years account for 33 percent of the total number of new HIV infections. In comparison, NASCOP statistics show that young men account for an estimated 16 percent of the new HIV infections.
Experts attribute this high HIV prevalence to gender inequalities, violence against women, limited access to health care, lack of access to education and jobs as well as health systems that do not address the needs of young people.
During the entire period of the conference, experts belaboured the fact that the face of HIV has significantly changed.
People living with HIV are no longer as sickly as they used to be. It is, therefore, now possible for a HIV positive individual with a very high viral load and highly infectious to appear healthy.
This has shaped the attitudes that young women have as well as their own perceptions of being at risk of infections. Surveys have shown that young women are still more fearful of an unplanned pregnancy than contracting HIV.
However, there are other factors that have served as obstacles to the prevention of HIV among young women. Experts say physiology does not help. Teenage girls’ immature genital tract is more prone to abrasions during sex, opening entry points for the virus.
Experts are also quick to clarify that besides sex, the age of the male partner is a defining factor. “The trends are showing that HIV prevalence is high among women aged 15 to 24 and men aged 35 to 45. This is because of the intergenerational relationships,” Chazara expounded.
The age of the young woman herself is also a factor. Women who had their first sexual encounter before the age of 15 years face twice the risk of getting infected with HIV.
Importantly, experts have belaboured the point that interventions are in the pipeline to address the needs of young people in the prevention, care and treatment of HIV.
According to Dr Irene Mukoi of NASCOP: “There is a lot of discussion and focus on the youth to figure out how to prevent new HIV infections, to ensure those infected are on treatment and that they have good treatment outcomes once they start taking antiretroviral drugs (ARVs).”
With experts drumming support on increasing awareness and knowledge of HIV prevention among young people, these efforts are bearing fruits.
Nonetheless, more young men than women have demonstrated adequate knowledge of HIV prevention.
In the Kenya Health and Demographic Survey (KDHS) 2008, an estimated 48 percent of young women and 55 percent of young men “demonstrated adequate knowledge of HIV prevention compared to 73 percent of young women and 82 percent of young men in 2014”.
There is still no consensus on teaching young people about HIV and sexual health. This remains a debatable controversial issue with the most recent Kenya Health and Demographic Survey (2014) finding that an estimated 40 percent of adults were “against educating young people about condoms” for fear that it might be taken as encouragement for them to have sex.
Such fears and controversies notwithstanding, the figures have spoken and raised the alarm. Without urgent and young people tailored interventions, the HIV prevalence among young people will become the epidemic.

Girls must be protected from all forms of sexual and gender based violence.

The safety and security of the girl child is still in jeopardy even as the world marks the 27th anniversary of the 16 Days of Activism Against Gender Based Violence.
This makes it pertinent to examine how Kenya has fared in ensuring that issues of sexual and gender based violence against the girl child are tackled.
The menace of teenage pregnancies and other sexual reproductive health issues continue to be a heavy burden to both the local and national leadership, even as the world reconsiders development models and techniques which are intended to bring about equitable and sustainable development to communities.
There has largely been an understatement and total blindness of how the majority of the world’s girls are agents of this process and not first-hand partakers of the same.
Becoming a parent at any age can be a life altering experience. Regardless of race, education as well as socio-economic status, motherhood and fatherhood uniformly places demands on one’s life that were non-existent prior to the child birth.
Education being of vital importance and a main aspect of human security and means of empowerment in the modern day world, girls aged between 13 and 17 continue to drop out of school. This is due to the pressures they experience including stigmatisation associated with early parenting, isolation from peers and lack of needed support from parents, friends and schools.
Socio- economic outcomes have been the traditional focus of research on teenage parents that often finds a negative impact on employment and earning. However, education can help mitigate these negative outcomes on the girl child.
Alternatively, girls have found ways of surviving in precarious circumstances that may destroy them and limit their ability to cope and create a decent living for themselves.
This observation supports the need for more opportunities for girls worldwide. The inequality that girls’ faces include areas such as access to education, nutrition, legal rights, medical care and protection from discrimination and gender based violence.
For instance, looking at the dynamics of out of school children statistics, it is notable that a big number of girls have dropped out due to various reasons ranging from poverty, early and forced marriages to discrimination.
Another issue that should be looked into is safety and security in schools. Cases of rape and sexual harassment have been numerously experienced in schools with most of the cases going unreported due to fear, stigmatisation and discrimination.
Relevant measures should be put in place to look into preventing sexual violence by ensuring that girls have knowledge about their sexual and reproductive health, particularly menstrual hygiene.
Most girls who are faced with the predicament of teenage pregnancy and sexually transmitted diseases usually resort to desperate measures as a result of prejudice and discrimination from their families, peers and the community at large.
In most cases this leads them to start looking for alternative means to sort themselves out. These are some of the factors that lead to numerous drop outs as compared to their male counterparts who are at times responsible for the pregnancies.
Sex tourism as it is mostly referred to is a form of female-driven act in the scope of human trafficking and is seen as a social exchange rather than an explicit transactional sex.
Although sex tourism can be variously voluntary or exploitative, confirming or negating a sense of integrity or self-worth, it is believed that most of the girls involved in this business are supported by their parents, siblings, friends and relatives. This is attributed to the fact that proceeds and gains from the trade are used to support families and siblings. This is a lame justification used to capitalise on and rationalise sexual encounters with the girl child.
Barely a teenager, homeless, pregnant and a school dropout 13-year-old Esther’s life came crumbling down on her. She did not have anyone or anywhere to turn to.
“I was devastated and confused. I walked a long distance just to reach my aunt’s place. I even begged for money from people along the way since I had nothing with me when I left home.”
Just like Esther, many other girls worldwide suffer as a result of poverty, greed and need to make easy money.
Many of the girls who have fallen prey to this business find it difficult to quit simply because of the prestige obtained from having a foreigner, the money that flows and luxurious lifestyle that comes with it.
The child sex tourism makes profit from exploitation of the girl child who although seems physically matured, is mentally immature.
In most countries, legal frameworks have been put in place whereby laws have criminalised sexual violence. It is everyone’s responsibility including the Government and Judiciary to ensure speedy access to justice for survivors.
Community leaders and stakeholders also have a role to play in educating people at the grassroots level that these issues need to be addressed and not treated as family matters.
It is imperative to note that girls’ education goes beyond getting them to school. It is about ensuring that they learn and feel safe while in school.
It also means completing all levels of education to acquire skills to effectively compete in the labour market.

Using Comics to Mobilize Support for Torture Prevention.

One way to increase support for torture prevention is to influence public debate that torture is wrong. As popular culture in particular series and films continues to brand torture as “necessary” or “inevitable”, we should explore new ways to challenge these pre-conceived ideas, including through popular mediums.
Comics and graphic novels are one of these popular mediums that can challenge “pro-torture” narratives. As a medium that is accessible to the mass and transcends all ages, cultures and languages, comics and graphic novels have a lot to offer.
In 2012, the Hollywood production “Zero dark thirty”, unapologetically suggested that “enhanced interrogation techniques”, such as waterboarding, were crucial in obtaining the information that led the CIA to Osama bin Laden, leaving the audience with the false impression that torture can be effective and even necessary in a “ticking-bomb scenario”. This was ignoring simple facts about torture – that it is wrong, illegal, and an unreliable means to obtain information, as torture victims will say anything just to get the pain to end.
Three years later, a Tamil movie called “visaranai”or “Interrogation” delved again into the dark plot of torture, but this time powerfully showing how torture dehumanises its victims and their perpetrators. As its director, Vetri Maaaran explained, “film can influence society for good and bad.” Another popular medium that can achieve the same objective is comics.
Since the graphic novel “Maus” was published in the early 1980s depicting the plight of a Polish Jew and Holocaust survivor, more comic artists have been sharpening their pencils to narrate suffering, such as that of asylum seekers or people living in war-torn zones.
Comics can also be used to draw people’s attention to the need to act on specific issues by making specialist knowledge available to all. In 2017, the APT partnered with the International Commission of Jurists (ICJ), Amnesty International and Thai NGO Cross Cultural Foundation to create a short “info-comic” entitled “Torture is a Crime”. This was the first time we used a visual medium to raise awareness on the need to criminalise torture, as we would normally just rely on public statements, research papers or legal opinion. And it appears to have worked!
The info-comic elicited very positive responses from both the public and the media. It broke the barriers for the general public to understand the issue of torture and ill-treatment in Thailand, without down-playing or sugar-coating the problem. People found the info-comic engaging and drove home the message that allegations of torture and other ill-treatment exist in Thailand and that they must be criminalised. This is particularly crucial for the Thai people, who live in a country that is going through a prolonged military-led political reform.
The success of this info-comic I drew for the criminalisation of torture in Thailand is not surprising – or so it was observed in an art and activism research workshop organised by the Centre of Applied Human Rights, University of York, to which I recently took part. Art, it was said, empowers people to better imagine and participate in political and social change. This would explain the emerging interest of the human rights community (practitioners and academics alike) for using comics as an effective discipline or medium for campaigning or documenting human rights abuses. And I am now all the more committed to keep using my skills to visualise the pain of others in order to prevent it from recurring.
If comics and graphic novels that expose the evils of torture and ill-treatment can open more doors for conversations on this difficult topic, there is a potential for us to operate an important shift in public opinion; in favour of creating a world free from torture.

How Policemen Should Behave During Elections – SAN

A Senior Advocate of Nigeria, Mr Dele Adesina, has advised men of the Nigeria Police Force against taking sides with politicians and political parties during elections, warning that such behaviour will erode public confidence in the police and undermine the integrity of the institution and its officers.

Adesina described as regrettable some of the news reports about the conduct of policemen in the recent Osun State governorship poll as well as their involvement in other political activities as the nation warms up for the 2019 general elections.

He warned that disregard for the rule of law by individuals and institutions would stifle the nation’s democracy.

The SAN said this in a paper titled, “The minimum standard for the conduct of police officers towards the 2019 general elections,” which he delivered last week at a one-day training organised for the senior cadre of the Nigeria Police Force, Lagos State Command by the Committee for the Defence of Human Rights.

Adesina berated Nigerian politicians for their desperate disposition towards elections, which, he said, had given rise to vote-buying, lawlessness, compromise and corrupt practices.

On the conduct of policemen, the SAN lamented that, “Our experience on the role of the police is gradually becoming what the conduct of police officers should not be.

“The experiences manifest partiality on the part of police officers, one-sidedness, intimidation of voters and outright bribery.”

Making reference to the Nigeria Police Code of Conduct of 2013, Adesina said policemen were expected to perform their duties “impartially, without favour or affection or ill will and without regard to status, sex, race, religion, political belief or aspiration.”

“The document stated further that all citizens shall be treated equally with courtesy, consideration and dignity.

“Very amazingly, the code obligated police officers never to allow personal feelings, animosities or friendships to influence their official conducts,” he added.

While lending his voice to the creation of state police, Adesina added that more funds should be voted for the Nigeria Police Force.

“The Nigeria Police Force is grossly under-staffed, underfunded and severely under-equipped,” he said.

Earlier, a lawyer, Mr Nurudeen Ogbara, took the policemen that participated in the training through the provisions of the Administration of Criminal Justice Law 2015 on the respect of human rights.

In his welcome address, the National President of CDHR, Mr Malachy Ugwummadu, said the training was the organisation’s contribution towards reducing the challenges of policing in Nigeria.

A Painless Solution to Law Enforcement Misconduct By Tochukwu Chukwmerije

Law enforcement misconduct refers to ill- appropriated conduct and or illegal actions taken by law enforcement agent(s)/officers in connection with their official duties. Law enforcement misconduct terms refer to a wide range of procedural, criminal and civil violations. Misconduct is the broadest category.

Misconduct is procedural when it refers to Law enforcement that goes against its internal rules and regulations. Misconduct is ‘Criminal’ when it refers to law enforcement who defies state and federal laws. It is civil or unconstitutional when it refers to law enforcement who abuses a citizen’s constitutional or fundamental rights. The profit or any type of material benefit gained illegally as a result of the law enforcement’s authority is considered misconduct. Bribery, extortion, receiving and fencing stolen goods and the worst of them all, brutality are all forms of misconduct. The act of brutality has been in use since 1883 when it first appeared in a London paper The Poor Man Guardian.

Law enforcement brutality is the abuse of authority by the unwanted infliction of excessive force by personal involved in law enforcement while performing his official’s duties. The term also applied to abuses committed by prison officials in state and federal prisons including prisons under military and intelligence control. This misconduct is usually applied in the context of causing physical harm, but it also involves psychological harms through the use of intimidation tactics beyond the scope of officials sanction procedure. It is evident that officials who engage in the misconduct do so with the approval of their superiors or they are the bad eggs. In most cases they perpetrate their actions under the cover of law and most times, engage in a cover-up of their illegal activities.

In Nigerian legal system an accused person is presumed innocent until proven guilty by a court of competent jurisdiction. The consideration of the liberty of the individual who seek a redress is the cardinal duty of the court – see R vs. McKenna (1960) 1 Q. B 411 at 422. Citizens who have been arrested by law enforcement agent(s) still have the same rights as they did before the arrest. Unfortunately the officers choose to ignore those rights many a times. In Obikoya and sons Ltd v Governor of Lagos State (1987) I.N.W.L.R (pt. 50) 385, the court held, ‘‘that the provisions of a constitution, which itself are a living piece of legislation must be construed broadly and not in a pedantic way: they must be given generous and purposive construction, particularly those provisions dealing with fundamental human right”. The act of brutality by law enforcement officers is a serious matter that unavoidably impacts the lives of their victims and their loved ones negatively. The fact that the police is now operating outside its jurisdiction as provided by section 4 of Police Act by dealing in civil matters i.e. recovery of debt, land matters etc. is an enormous problem that has seriously undermined the legal profession and the business of law. To my knowledge, one can file a claim for the following misconducts, unnecessary use of excessive force, false imprisonment, planting and destroying evidence, illegal searches, and seizure of property not related to any crime, involvement in civil matters, corruption, malicious prosecution, violation of individuals constitution or fundamental rights, discriminatory arrest physical or verbal harassment, coerced false confession, intimidation, perjury, witness tampering, brutality etc.

It is eminent to sensitize the populace that law enforcement misconduct can be difficult and complex and often present challenges to victims and their lawyers. On a daily, luck victims are injured and then sent straight to prison or cell and the unlucky ones are sent straight to their graves, with no caskets. If the victim is free after experiencing the misconduct, I recommend that the victim should; (1) Document everything, especially the extent of injuries suffered by taking as many pictures as possible. Take photographs of any injuries or damage caused, and set aside clothing or other objects that was torn or stained with blood from the incident. Write down as quickly as possible what exactly happened so as not to forget important details. (2) Seek medical attention (3) obtain the contact information of any witnesses to the scene of the incident. (4) Wear or use technological enhanced gadgets to record live events. (5) Consult your lawyer.

The Physical, emotional and mental consequences of law enforcement misconduct cannot be over emphasized. The society place trust in them and the betrayal of that trust should not go unpunished. The Nigerian Bar Association (“NBA”) through its Human Rights Committees of the One Hundred and Twenty (120) Branches should not allow the betrayal of that trust not to face the law criminal and civil. The NBA should listen to the story of every Nigerian and help in the best way to proceed with the specific case. At the NBA we must work hard to hold the guilty parties accountable for their actions. NBA should work to help millions of Nigerians including lawyers obtain compensation for law enforcement misconduct, loss of property and time spent in prison for crimes the accused never committed. The securing of claims against law enforcement are an important part of our legal system, providing a balance between the duties of law enforcement to up hold the laws, and the rights of citizens to be free from law enforcement misconduct – See Section 35(6) 1999 Constitution – Anyone unlawfully arrested is entitled to compensation. A law enforcement agent is immune from prosecution when he is lawfully executing his constitutions rights to uphold the law. I salute the good, educated, intelligent law enforcement agent(s) that do not embarrass or harass a lawyer in the course of his duty. I hail your gentleness. This immunity exists to prevent fear of legal prosecution from inhibiting an officer for enforcing the law. However, this immunity will be defeated if the officer’s conduct violates a clearly established constitutional or statutory right.

The NBA should make hay while the sun shines because some law enforcement agent(s) i.e. the Police, DSS, EFCC etc have started treating lawyers in course of their legal duty with iron gloves. We witnessed the recent incident in Imo State were police officers invaded the Magistrate court premises and disrupted the business of the day. Lawyers are ignored or sometimes humiliated. The Administration of criminal justice is clear on the position of a Legal representative when interviewing a suspect, but the Police and other security agents treat the said law with impurity – See Section 6(2) (a) Administration of criminal Justice Act (2015). However when a law enforcement agent’s day turns to night he or she would hurriedly hire a lawyer. We all saw last year when the Senate invited the Inspector General of Police (“IGP”) on the allegation of a senator. The IGP never spoke in that session except through his lawyer. The question is would the Police grant the same right to another on the allegation of another? I dare to state that it is getting to that time when the legal community will be confronted with the question; don’t lawyers have the right to say we’ll not represent this officer(s) in any legal matter because he maltreats our colleagues in course of their Legal duty and deny citizens their right to counsel?

The effort to combat law enforcement misconduct is to focus on various aspects of law enforcement culture and the psychology which may manifest itself when individuals are placed in a position of authority over others. The recent call to ENDSARS (Special Armed Robbery Squad) is a clear case of mere absolute authority over armed robbery related matters was abused, and respect of Human Right and Human Dignity of Nigerians were trampled on by members of SARS. There are numerous theories, such as separation of powers; deference, discretion and burden of proof have been stated as explanations for the judiciary styled pursuit of law enforcement misconduct. The courts should make sure that the relief granted to victims of law enforcement misconduct is executed to the latter and the victim enjoys the fruit of labour. Most courts award reliefs against erring officers but do not make sure that their rulings are obeyed to the latter. That one of the reasons last year, some judges of superior court was treated badly by law enforcement agents without proof of probably cause.
The good news is that courts are not deceived and they see the system patterns of law enforcement misconduct. The factors that encourage the misconduct include institutionalize system of law, training, management, illiteracy and culture. A criminal justice system that discourages victims from pursing law enforcement misconduct and brutality: a system that protects law enforcement bank accounts from garnishee proceedings for breach of rights. In addition, there is a perception that victims of law enforcement brutality or misconduct often belong to relatively powerless groups, such as the poor, uneducated and the special people. Some have said that it is the “force” in the police name or the war model of policing is still the reason why police brutality and misconduct occurs. The law enforcements see crime as war and the people who are involved in the crime as their enemies. You can imagine what one can supposedly do to his enemies in a time of war. That is why the law enforcement use force in direct response to perceived threat from radical and/or economic groups viewed as threatening the existing social order. They also use force in direct response to levels of violence in the community.

The federal government should employ lawyers more in the law enforcement agencies to strength crime investigation and prosecution. The recruitment process of the police or other agencies an applicant must possess a minimum qualification of an ordinary National Diploma (OND) before admission. A review of their salaries to meet up with the current situation in the country. Set up genuine trust funds and build housing and schools for their children. To periodically re-orient and re-educate officers of the law to acquaint them with modern policing techniques, to become educated and respecter of civil rights.

In conclusion, the use of body camera or gadgets that record both visual and audio scenario is most likely to reduce the committing of law enforcement brutality and misconduct if they understand that their actions are being recorded. The legal community should sponsor a bill to both state and National Assemblies in reform of the brutality and misconduct of law enforcement Agents amongst many the introduction of CCTV to be installed in every law enforcement premises, as well as the introduction of body and vehicle camera on the officers. That a record of law enforcement agents that harass, embarrass or humiliate a lawyer in course of his legal duty be kept by the legal community in case the question arise why they should not be offered legal assistance by any lawyer. That the officers quilt should be disassociated and made personal liable for the misconduct. The Primary purpose of the nation Human Right law is to protect the citizens from abuses by government, including law enforcement misconduct. Civil rights remedies came into play for wilful law enforcement misconduct that violates individual constitutional rights. The Nigerian constitution under chapter 4 and African Charter has made it unlawful for anyone acting under the authority of the Nation’s law to deprive another person of his or her right under the constitution.