Effective court system would reduce the risk of transactions - LCCI
 
 
 
(Note: Alternative dispute resolution, or ADR, is touted as the saving grace for property rights. Consider its definition: Alternative [or Appropriate] Dispute Resolution [ADR] - Resolution is used narrowly to refer to a set of alternatives to litigation including mediation, arbitration, and summary jury trials. Used broadly it refers to all methods which resolve conflicts between parties by a means other than an adversarial or judicial process. http://www.disputeresolution.ohio.gov/terms.htm 2. Alternative [means of] Dispute Resolution" - "Any procedure that is used to resolve issues in controversy, including but not limited to conciliation, facilitation, mediation, fact finding, mini-trials, arbitration, use of ombuds[men] or any combination thereof." 5 U.S.C. 571(3) http://www.rachel.org/library/getfile.cfm?ID=319 )
 
 
 
February 22, 2007
 
 

By Innocent Anaba

 

Vanguard Media Limited

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Canal, P.M.B. 1007

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Nigeria

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http://www.vanguardngr.com 

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The President of the Lagos Chamber of Commerce and Industry (LCCI), Dr. Herb Ademola Ajayi, has said that an efficient, speedy and effective court system would reduce the risk of transactions between two parties. Speaking at the LCCI 2007 Quarterly Business Luncheon in Lagos, Dr. Ajayi said, " the legal environment is a major factor in the conduciveness, or otherwise, of the totality of the investment environment which impacts significantly on investors' confidence and the risk of  investment. The critical issues in this regard, therefore, relate to enforcement of contractual obligations, property rights, efficiency and effectiveness of the court system, criminal justice delivery system and the promotion of Alternative Dispute Resolution mechanism.  These are some of the critical areas where the Private Sector, and investors generally, would want to see an accelerated reform." 

"An efficient, speedy and effective court system would reduce the risk of transactions between two parties, minimize business risks and increase the willingness of the Private Sector to do business.  A key attribute of an investment friendly legal environment is that court cases and their outcomes would be timely and predictable.  We commend the judiciary for the role they have played in nation building and the preservation of the rule of law and the sanctity of the Nigerian constitution.  We request that this be sustained, " he noted.

"Our law courts should also preserve and sustain their virtues not only as courts of law but also as courts of justice, since the beauty of any court of law is the delivery of justice.  These crucial attributes would boost investors' confidence, facilitate investment growth, accelerate economic development, create jobs, and enhance the welfare of the citizens. We are also keen to see the greater promotion of private dispute resolution through arbitration, mediation or conciliation.  This would further improve the contracting environment and inspire confidence in contracting agreements."

"The alternative dispute resolution is generally faster, less expensive, less complicated and provides more acceptable and accurate decisions. It also has the added advantage of the involvement of relevant professionals who could bring their specialist knowledge to bear on the dispute settlement process.

I am pleased to report at this juncture that we at the Lagos Chamber of Commerce and Industry have concluded arrangements to establish a Top Class Arbitration Centre."

"I appeal to all of you here present and the entire business community to take advantage of the Lagos Chamber Arbitration Centre for a speedy, accurate, independent and economic dispute resolution process.  I urge the  entire business community in the country to always include arbitration clauses in all their contractual agreements. Another major issue of concern in the legal environment is property rights.  Research in a broad number of countries has shown that there is higher investment growth, particularly in terms of long term investment, in countries where there is security of property rights.  This aspect of our legal environment still presents a serious challenge to investors.  For instance, the acquisition of title rights for landed properties is not only cumbersome and tortuous but also very costly and constitutes a major inhibition to investment in the Nigerian economy," he added.

 

 

Copyright 2007, Vanguard.

 

http://www.vanguardngr.com/articles/2002/business/february07/22022007/b622022007.html 

 

Related reading from The Freedom of Information Center

 

How Bad Laws Deny the Poor Justice--Lawyers

 

 

September 10, 2004

 

By Ise Oluwa-Ige, Innocent Anaba And Wahab Abdulah

 

allAfrica.com

'A law is bad when it is impractical, retrospective in effect and when it preaches inequity or inequality'

Vanguard Law and Human Rights is continuing with its special report on how successive and present governments in the country have enacted and used Draconian laws to deny the populace the basic rights as enjoyed by other civilised societies.

Last week, we reviewed several instances where these laws have been used to the detriment of the masses. Today however, we are bringing to you, the views of some prominent lawyers and activists on some of these enactments. It is worthy of note however that some of these laws include the Public Order Act; the Official Secret Act; the Sheriffs and Civil Process. Today, Mr Olisa Agbakoba, SAN; Chief Mike Ahamba, SAN; Chief Chris Uche, SAN; Chidi Odinkalu; Ernest Ojukwu; Femi Falana and Jiti Ogunye speak on the same subject.

 

Mr Olisa Agbakoba, SAN, Human Rights Activist.

 

The reason why we still have a lot of bad laws is because of the carry-over from non democratic settings. When we are converting from a non-democratic government to democratic government, a law is passed, it is called consequential repeal decree. But that consequential repeal decree tends to be made by the military for certain reasons. For instance, the one in force today was passed by Abudasalam, and they intend to capture everything. So the challenge is that of the civil society and the National Assembly, because what I have found from my experience is that the expertise in the government to review some of these laws is not there. But the civil society groups that have worked extensively on laws of many kinds have a task, which is why most civil society groups have a large legislative advocacy programnme.

But there is no corresponding capacity in the National Assembly to deal with most of these laws. Take the Official Secret Act for example, it is unconstitutional. Take the labour Act that is being debated, there is a pro and con of the labour bill. The pro is that the government is obviously looking back. The idea is having struggled with labour on some policies, the government now wants to strike down labour. But the truth is that some aspects of the labour Act is unconstitutional. One is the aspect that say you must belong to the labour union. The constitution says, you belong to a union or association voluntarily. So you see the paradox, while labour should actually be campaigning to have themselves free from government, they are the ones campaigning on the other side. What these bad laws throw up is that we need a complete auditing of our laws, so that we can determine what laws conform to the constitution and I know for sure that many laws do not.

Like the Official Secret Act, it has been used to make sure we do not get to know what happens in government and Freedom of Information Act, which has just been passed by the House of Representatives is against this. The labour law is now causing a lot of tension, and there are many of such laws. But the laws that have been inherited are now by section 317 of the constitution deemed to be existing laws. So, we are now required to amend them, and it is possible for any body who has executive powers to misuse those laws against the national interest.

On the bill that you said is sponsored by a member of the House of Assembly, which seek to bar journalists from covering certain aspects of the house session, all I know is that journalists have a right to report stories in the national interest, and you cannot punish the truth. You remember when Decree 4 was enacted to punish journalists who published stories government considers critical to its interest, even when such stories are true. If that is what the new piece of legislation seeks to do, then, it is unconstitutional and it is the duty of the media, not just to write about it, but to take it to court.

 

Chief Mike Ahamba, SAN

 

Well, it is for the National Assembly to look at them, and as they are brought up in the court, their badness will be exposed. If you don't raise up the issues in the court, the badness of the laws will not be exposed. It is when a law is brought up in a proceeding and people realize that certain provision is disturbing the smooth operation of the society that, you will have a reason to now seek for the amendment of the law. But if you do not go to where it will be x-rayed, and its bad aspects exposed, it will remain there to be implemented by bad people, who cannot contain it.

 

Chief Chris Uche, SAN:

 

Talking about this, it is a sad commentary that in the past five years, the National Assembly has not done enough legislative works. Starting from the constitution, one would have expected that substantial amendments would have been made to really update the constitution. The objective of any law, in any democratic society is to promote the good of that society. It is also to ensure that there is peaceful co-existence of all members of that society so that there is peace and security in that society and that there is good government in the society. That is why the constitution gives the legislature the powers to make laws for the peace, orderliness and good government of a society. The term good government is wide enough to cover even matters which are found or described as the fundamental objectives and directive principles of state policies which mean that such laws will promote economic, social, educational, environmental and political objectives.

The import of these objectives is that those laws must also be founded on the ideals of freedom, equality and justice. To me the EFCC Act is a Draconian law and one that is unconstitutional and to worsen matter, it has come to our attention that the Act 2002 has hurriedly been amended to read EFCC Act 2004. And that amendment of the law is to apply to people that are already standing trial under the Act 2002. By implication, the law is to take retrospective effect. The Act also gives the commission the power to impound the bank accounts of accused person yet to be found guilty. This is inconsistent with the provisions of the 1999 constitution. And the danger of derogating from the principle of presumption of innocence is that anybody can just wake up one day, write a petition against his perceived enemy whom he has been looking for a way of dealing with and forward it to the Financial and Economic Crime Commission that oh, this person has committed an economic crime. And by the power conferred on the commission now by the amended Act, such person is picked up, detained without bail, charged to court with all his assets frozen and forfeited even before he is heard. This is a bad provision.

For instance, the supreme law of the land which is the 1999 Constitution gives any arrested person the rights to remain silent or to avoid answering questions until he consults with his counsel. But the amended act gives power to the commission to obtain statements from accused persons without any recourse to this provision. Again, in the application of the law, it is made impossible for any accused to be granted bail while his trial is still going on and by this they are making it impossible for trial of such cases to go on. Unfortunately, these alleged offences are not capital offences like murder. Why will such people not have bail in order to have the matter tried. The definition of Economic and Financial Crimes is even very broad. It covers even activities of government officials who are carting the wealth of this nation out of this country on a daily basis. It also includes foreign exchange malpractices like selling of foreign currencies, even on the street and things like that. To give credibility to its determination to stamp out economic and financial crime, the government must wage an all- encompassing war on all aspects of this problem rather than being selective.

Chidi Anselm Odinkalu, Jeremiah Smith Jr. Visiting Professor, Harvard Law School, Cambridge, MA

There are several questions here. What is a bad law and why do we have them. The complaints about the labour bill that the President sent to the National Assembly is obviously designed to break the back of labour for opposing the President's petrol fuel policy. This complaint is to the extent that it does not serve the objective of public interest and that is the complaint about the bad laws. There are a lot of laws in our statute book that are bad, that simply do not serve public interest and there is a history to it, a history of government that has historically served the interest of Nigerians. The colonial powers did not serve our interest and the military did also not serve the people and their position was that they were anti-people. Most of the laws today are made by the colonial government and the military. So you can now see why most of our laws are bad laws. The law of sedition is a typical example. Though it was struck out in 1982, people are still being held under that law. There is the criminal defamation; the official secret act, was actually set up by the colonial government because they wanted to exclude the indigenes from knowing what the colonial government was doing. Today, we have press release marked 'confidential'.

The thing about this bad laws is that, they are not enforced against everybody. It is a psychological instrument being used against a group. The Criminal Code makes a crime the defamation of a foreign prince and several other circumstance all together. You look at the effect of the Public Officers Protections Decree 4, of 1984, you have the Public Officers Act today, which prevents you from suing a public officer after three months. We also have the Sheriffs and Civil Process Act. In a country like ours with a high level of illiteracy, why should a law state that you have only three months within which to sue, after which the matter becomes status barred. In South Africa, a similar Act was struck out, but here in Nigeria, the Supreme Court in Gani Fawenhimi Vs NNPC, affirmed the same fact imported by the colonialist. The Sheriff and Civil Procedure Act, states that if you have a judgement against government, you can only enforce such judgement, if the Attorney General agrees. You cannot initiate proceeding and if you do, you cannot get your just reward. We also have the Newspapers Act, Official Secret Act. The civil society has to go beyond making proposal and engage the law makers. We can't pretend that people will always accept our view, but we should try and engage everybody.

 

Ernest Ojukwu, Deputy Director Nigerian Law School, Enugu Campus.

 

Some of the so-called bad laws are justifiable and they are there for a reason. In a democratic society, the problem with some of the anti-people laws is with the people that enforce them. Under the British and American laws on terrorism, you can find that it is the circumstance that warranted it. It is with the enforcement that you have problem. The Police Order Act is based on colonial history, this very one has no justification. It was made by the colonial masters to prevent any form of agitation that will be a threat to their government.

On the bill pending before the National Assemble on NLC, the bill may not succeed in breaking up the NLC in what it intend to do. If the National Assembly passes such a bill, then it is deemed to represent the will and wishes of Nigerians because they represent us. So, the effect of opposing any bill that people feel will undermine their will is to prevail on their people in the National Assembly to reject same. There should be no fear that one party is dominating in the National Assembly, after all in the US, the ruling party has the majority in congress, yet they debate matters vigorously. So the absence of a strong opposition does not really mean anything. We need to educate the masses to rise up to defend their rights, not merely opposition, but a strong responsible pressure group against any form of parliamentary dictatorship. For us to appreciate the problem of the bad laws, you must look at it holistically. It has to be put in context, you must look at the objective of the law and the menace it is meant to cure or check and the way it has helped or marred our rights.

 

Femi Falana, Human Rights Activist:

 

It is true that the government has in the last few years enacted new laws to take care of specific criminal cases such as drug trafficking, economic and financial crimes. These laws are set out to curb criminal offences but in their provisions, they are out to protect criminal suspects. In the course of my experience, for instance, most Nigerians who go to court to swear with the Bible and the Holy Quran do not believe that anything can happen to them if they tell lies. The law allows criminal cases to drag on for ages to the extent that the state is not able to prosecute such matter. At the end of the day, the society loses interest in such cases while the suspects who may have committed the most heinous crime simply take advantage of the lapses in the system.

Our criminal law does not seem to appreciate that when a crime is committed, justice that is required in the circumstance is a three way traffic-- justice to the accused, justice to the victim, and justice to the society. Fortunately, the law only emphasizes justice to the accused. We now face a situation whereby an accused person charged with murder or treason, for instance, can with his resources or financial wherewithal scuttle his trial through all manners of frivolous applications which are pursued from the Magistrate Court or the High Court to the Supreme Court, sometimes for a period ranging between five and ten years, at the end of which the state is no longer able to assemble its witnesses leading to striking out of such cases in favour of the accused.

But when a poor person commits the same crime, it is seen as abnormal and in fact, he is arrested, detained, arraigned and jailed. In the case of civil matters, the state high court rules have not helped matters. The rules provide for a trial procedure but the law of evidence which has to come fully in force in the investigation and trial of suspects are not helpful. For instance if you want to tender a newspaper in court, such copy cannot be tendered by a plaintiff except he brings a registered librarian to tender it. Alternatively, you are required to certify the newspapers from proper custody. When the trial of a case is delayed, the poor bear the brunt because the rich can always take care of themselves. Even the language of the law suggests discrimination against the poor: when a big man is killed for instance, it is called "assassination". But when an ordinary citizen is killed, it is called 'murder'. Again, when a powerful person in government steals government money or engages in corruption, it is not called stealing as late Fela Anikulapo once said.

 

Jiti Ogunye, A Lagos based lawyer:

 

Trade Dispute Amendment Act: This Law was promulgated as a Decree in 1992. The Law in Section 2 provides that: immediately after the existing section 1 of the Principal Act, there shall be inserted the following new sections 1A.-(1) Subject to the provision of subsection (3) of section 20 of this Act, no person shall commence an action, the subject matter of a trade dispute or any intra union dispute in a court of law and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void. (2) Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979, any interim or interlocutory order, judgment or decision made by any courta-oe National Industrial Court established under this Act, in respect of any trade dispute prior to the commencement of this section shall cease to have effect. (3) A person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction to a fine of ten thousand naira or to imprisonment for a term of one year or both". It could be clearly seen that the provision of the above section oust the jurisdiction of the court just as many decrees of the military era did.

Teaching, Etc. (Essential Services) Decree 1993: This law is incidentally a one page affairs.

It consists of just four sections. From all indications, it appears that the law, which came into force as a decree was promulgated principally to prevent workers in the teaching profession from exercising their rights to go on strike and to oust the jurisdiction of the court to look into the constitutionality of the provisions. The law in effect provides in section 1 that 'teaching and the provision of educational services are hereby declared to be essential services within the meaning of section 9 (1) of the Trade Disputes (Essential Services) Act'.

It goes on to provide in section 2 that: (1) As from the commencement of this Decree, no member of staff whether teaching or non-teaching, employed in any primary, secondary, or tertiary educational institution in Nigeria shall embark on an industrial action in the form of a strike, sit down strike, work to rule or any other kind of industrial action calculated to disrupt the smooth running of teaching or educational services in any of those educational institutions.

(2) Where a member of staff continues or persists in the industrial action referred to in subsection (1) of this section for more than one week he shall be deemed to have resigned his appointment, but without prejudice to any accrued rights. The Law also goes further to provide in section 3 that:

'Notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria 1979, as amended or any enactment to the contrary, no proceedings shall lie or be instituted in any court for or on account of any act, matter or thing done or omitted to be done in pursuance of the provisions of this Decree'. In essence, contrary to the provision of the law in support of unionizing and having the right to strike as an offshoot of such right, teachers are forbidden from going on strike and even from challenging the said Decree.

Offensive Publications (Proscription) Act 1993: This unconstitutional law is otherwise known as the Tell Magazine (Proscription from Circulation) Order 1993. It was passed basically to proscribe from circulation, copies of the Tell Magazine No.19 dated 10th May 1993. The same law also directed the Director General of the S.S.S. to seize copies of the proscribed news-magazine.


 

Copyright 2004, Vanguard.

 

http://foi.missouri.edu/internatfoinews/howbadlaws.html